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CNN Live Today

Malvo Hearing

Aired April 28, 2003 - 10:04   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


LEON HARRIS, CNN ANCHOR: Let's get some legal perspective on these courtroom maneuverings, and for that, we turn to our legal analyst Jeffrey Toobin, standing by in our New York bureau.
Good morning, Jeff. Good to see you again.

What do you make of how things are shaping up there this morning. First of all, I have to ask about that comment, about the quote from Malvo, saying do I get to see my attorney, and this not being interpreted by prosecutors as a request for an attorney. What do you make of that?

JEFFREY TOOBIN, CNN LEGAL ANALYST: I've read the court papers, and there is a factual dispute between two sides. That's why there are witnesses today, about what precisely Malvo did say about wanting access to a lawyer. It's a very peculiar situation. If you recall, what happened was he was moved, Malvo was moved from Maryland, where he clearly did have a lawyer, to Virginia, where new charges were filed, and it was in this transition period, where he was switching from one jurisdiction to another, from one actual lawyer to a potential lawyer, when he was questioned. It's a questionable tactic by police, but it's the kind of thing that courts often do overlook, and allow the confession to be admitted.

HARRIS: Your thinking here is that it will be admitted?

TOOBIN: You know, judges don't like to admit this, but high- profile cases kind of have a law of their own. This case is so important. The crimes were so monstrous, and the confession, based on what we've seen in the court papers, was so explicit, it's going to take a judge being really, really offended by the police to say to the jury, look, this relevant, important evidence in a horrible crime, but I won't let you see it. I don't see it happening in a very law enforcement-oriented district like Virginia.

HARRIS: You brought up the thing about the judge being offended, because I was going to ask you about that. It seems that some of the things that Malvo said could be interpreted, basically could be taken as so offensive, that wouldn't there be a danger -- I'm a defense attorney here -- wouldn't there be a danger, no judge would turn away after hearing something like this come directly out of this guy's mouth?

TOOBIN: That's what makes this so difficult. Because I think there is the possibility that a judge could be offended by the police conduct here. In fact, I'm certain some judges would be. But when you compare that to the magnitude of the case, and the just horror of what went on in Virginia and Maryland, and Malvo's apparently laughing recounting of these sorts of monstrosities, I just have to believe that a judge in any sort of close case is going to give the benefit of the doubt to the government and let the jury hear the confession.

HARRIS: All right, now speaking of all that and all the news out about the comments from him that have been quoted in the press for some time and now this particular hearing, is it possible that this man can get a fair trial there in Virginia?

TOOBIN: Boy, it's going to be really tough. Because when you think about something like the Laci Peterson case, when there is all that publicity in Modesto, you could move that to San Diego, which is hundreds of miles away. Sure, there is a lot of publicity, but you know, California is a very big state. There are a lot of places you can move it.

I don't know what do you in Virginia. I think it is likely to be moved out of Fairfax because the publicity there was so intense. But where do you go? Do you go to Richmond? Richmond is only about an hour away. It's going to be very difficult to get these guys fair trials.

I think the key thing is going to be the jury selection process, closed questioning of potential jurors for bias. But, boy, I don't think it's going to be easy, no matter where you go in a small state like Virginia.

HARRIS: You'll have your work cut out for you, analyzing all that for us.

TOOBIN: That's not a bad thing.

HARRIS: Not to us either. Have a good one. Jeffrey Toobin, see you later on.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com






Aired April 28, 2003 - 10:04   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: Let's get some legal perspective on these courtroom maneuverings, and for that, we turn to our legal analyst Jeffrey Toobin, standing by in our New York bureau.
Good morning, Jeff. Good to see you again.

What do you make of how things are shaping up there this morning. First of all, I have to ask about that comment, about the quote from Malvo, saying do I get to see my attorney, and this not being interpreted by prosecutors as a request for an attorney. What do you make of that?

JEFFREY TOOBIN, CNN LEGAL ANALYST: I've read the court papers, and there is a factual dispute between two sides. That's why there are witnesses today, about what precisely Malvo did say about wanting access to a lawyer. It's a very peculiar situation. If you recall, what happened was he was moved, Malvo was moved from Maryland, where he clearly did have a lawyer, to Virginia, where new charges were filed, and it was in this transition period, where he was switching from one jurisdiction to another, from one actual lawyer to a potential lawyer, when he was questioned. It's a questionable tactic by police, but it's the kind of thing that courts often do overlook, and allow the confession to be admitted.

HARRIS: Your thinking here is that it will be admitted?

TOOBIN: You know, judges don't like to admit this, but high- profile cases kind of have a law of their own. This case is so important. The crimes were so monstrous, and the confession, based on what we've seen in the court papers, was so explicit, it's going to take a judge being really, really offended by the police to say to the jury, look, this relevant, important evidence in a horrible crime, but I won't let you see it. I don't see it happening in a very law enforcement-oriented district like Virginia.

HARRIS: You brought up the thing about the judge being offended, because I was going to ask you about that. It seems that some of the things that Malvo said could be interpreted, basically could be taken as so offensive, that wouldn't there be a danger -- I'm a defense attorney here -- wouldn't there be a danger, no judge would turn away after hearing something like this come directly out of this guy's mouth?

TOOBIN: That's what makes this so difficult. Because I think there is the possibility that a judge could be offended by the police conduct here. In fact, I'm certain some judges would be. But when you compare that to the magnitude of the case, and the just horror of what went on in Virginia and Maryland, and Malvo's apparently laughing recounting of these sorts of monstrosities, I just have to believe that a judge in any sort of close case is going to give the benefit of the doubt to the government and let the jury hear the confession.

HARRIS: All right, now speaking of all that and all the news out about the comments from him that have been quoted in the press for some time and now this particular hearing, is it possible that this man can get a fair trial there in Virginia?

TOOBIN: Boy, it's going to be really tough. Because when you think about something like the Laci Peterson case, when there is all that publicity in Modesto, you could move that to San Diego, which is hundreds of miles away. Sure, there is a lot of publicity, but you know, California is a very big state. There are a lot of places you can move it.

I don't know what do you in Virginia. I think it is likely to be moved out of Fairfax because the publicity there was so intense. But where do you go? Do you go to Richmond? Richmond is only about an hour away. It's going to be very difficult to get these guys fair trials.

I think the key thing is going to be the jury selection process, closed questioning of potential jurors for bias. But, boy, I don't think it's going to be easy, no matter where you go in a small state like Virginia.

HARRIS: You'll have your work cut out for you, analyzing all that for us.

TOOBIN: That's not a bad thing.

HARRIS: Not to us either. Have a good one. Jeffrey Toobin, see you later on.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com