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American Morning

Analysis of Upcoming Malvo Hearing

Aired April 28, 2003 - 07:16   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.


DARYN KAGAN, CNN ANCHOR: Focusing now on what's happening here in the U.S., a court hearing today in Fairfax County, Virginia. It will determine if sniper suspect Lee Boyd Malvo's own words can be used against him. Defense attorneys claim that Malvo's six-hour interrogation by police last November was illegal, and that his statement should be thrown out of court.
Malvo was only 17 at the time. He allegedly talked in detail about the shooting victims and how they were chosen during the D.C.- area sniper spree last fall.

For more on today's all-important hearing and what the judge's decision could mean, we turn to our legal analyst, Jeffrey Toobin.

Jeff -- good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: D.J., howdy -- welcome.

KAGAN: Good to be here in your fine city, in New York City.

Let's get right to the confession. When you hear some of the things that Lee Boyd Malvo allegedly had to say, absolutely chilling. And I think we've prepared some of these statements.

Talking about the 13-year-old boy that he shot: "I didn't want a head shot because he was a child. You can't always take a head shot. The person might be bobbing their head."

About Linda Franklin -- that's the FBI analyst who was killed at the Home Depot: "She came into my range within two seconds. I fired."

Also telling police, kind of boasting: "You wouldn't have caught us if we had better equipment."

TOOBIN: Incredible.

KAGAN: Just among some of the things he had to say.

TOOBIN: I mean, it's just incredible. An incredible series of things that he said.

KAGAN: Go ahead, yes.

TOOBIN: Well -- and this will be -- you know, there's a lot of evidence against him. I don't think it's a make or break for the government's case, because even if the statement is suppressed, there is a lot of evidence against Malvo and Muhammad as well. But this will be very important...

KAGAN: But you have the defense calling this the Mac daddy, the big granddaddy of all of the hearings.

TOOBIN: It's very important, and the defense does have a chance here, because there were some very unusual circumstances surrounding this interrogation.

KAGAN: Let's talk about November 7, and how prosecutors kind of moved him from federal custody into state custody, that window of opportunity.

TOOBIN: What happens is -- people may remember, he was arrested in Maryland in federal custody. After a couple of days, he was moved to Virginia into state custody. He had a lawyer in Maryland. The lawyer in Maryland said, "Don't talk to my client." He didn't talk in Maryland. But when he moved, he got a new lawyer in the Virginia system.

KAGAN: Well, in fact, didn't they -- there was a few hours where they actually had dropped the federal charges, and they were in the process of doing the state charges, so there was kind of a loophole in the system there.

TOOBIN: There was a gap. It's very unusual when you have this sort of transfer of custody. And the state prosecutors in Virginia say he didn't have a lawyer in Virginia at that point. So there was no one there to say, don't to you to my client. They spoke to him. He did waive his Miranda rights in writing.

KAGAN: Kind of sort of. Wasn't there some points where he's going, well, shouldn't I talking to my lawyer? Or I mean, he was asking about a lawyer.

TOOBIN: That's one of the things that's going to be addressed today, is what precisely he said about having a lawyer. There is a dispute between the two sides about whether he really asked for a lawyer, or just sort of discussed the subject of a lawyer. He signed the Miranda waiver, the waiver of his rights, but he just signed it within "x," which is somewhat peculiar.

KAGAN: A rather odd thing.

TOOBIN: And the tape, the six-and-a-half hour tape includes his statements about the crimes, but it doesn't include any of these negotiations about the lawyer.

KAGAN: How convenient.

TOOBIN: So that's convenient for the police; another thing that will come up today.

KAGAN: What about the fact that at the time he was only 17, his status as a juvenile?

TOOBIN: That is another factor as well. Again, none of these factors are dispositive in and of themselves. It's not completely determinative of whether the motion will succeed or fail, but they are all factors that will play in.

KAGAN: OK, looking at it going both ways, if the statements don't go in, the judge says, sorry, you know, you did not handle that properly, it doesn't hurt -- I mean, of course, it doesn't help the prosecution's case, but you're saying there is so much evidence.

TOOBIN: There's so much evidence here. Remember, you have the car with the sniper nest set up in it. You have all of the circumstances surrounding their arrest, their possession of the weapons.

But what's especially important about this statement is that it solves some of the mysteries of who shot which person. He admits in the statement, according to what the government has said, to 3 of the 10 shootings. That's very important for the government to determine who actually did it. That evidence, they don't have in many other ways, so that could be very important.

KAGAN: And then, that, quickly, brings me around to the other suspect, John Allan Muhammad. He had an important hearing within the last week, too, did he not, where they're talking about you don't have to be the triggerman in order to possibly face the death penalty?

TOOBIN: That's another big issue to be determined...

KAGAN: Yes.

TOOBIN: ... about whether the triggerman stuff matters, whether it matters if you can prove who shot each victim, because that is going to be probably the murkiest part of the government's case.

KAGAN: We'll be watching it as it goes later today. And you're joining us in a couple of hours. You're not going anywhere.

TOOBIN: Not going anywhere.

KAGAN: Jeffrey Toobin, very good.

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 - 07:16   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: Focusing now on what's happening here in the U.S., a court hearing today in Fairfax County, Virginia. It will determine if sniper suspect Lee Boyd Malvo's own words can be used against him. Defense attorneys claim that Malvo's six-hour interrogation by police last November was illegal, and that his statement should be thrown out of court.
Malvo was only 17 at the time. He allegedly talked in detail about the shooting victims and how they were chosen during the D.C.- area sniper spree last fall.

For more on today's all-important hearing and what the judge's decision could mean, we turn to our legal analyst, Jeffrey Toobin.

Jeff -- good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: D.J., howdy -- welcome.

KAGAN: Good to be here in your fine city, in New York City.

Let's get right to the confession. When you hear some of the things that Lee Boyd Malvo allegedly had to say, absolutely chilling. And I think we've prepared some of these statements.

Talking about the 13-year-old boy that he shot: "I didn't want a head shot because he was a child. You can't always take a head shot. The person might be bobbing their head."

About Linda Franklin -- that's the FBI analyst who was killed at the Home Depot: "She came into my range within two seconds. I fired."

Also telling police, kind of boasting: "You wouldn't have caught us if we had better equipment."

TOOBIN: Incredible.

KAGAN: Just among some of the things he had to say.

TOOBIN: I mean, it's just incredible. An incredible series of things that he said.

KAGAN: Go ahead, yes.

TOOBIN: Well -- and this will be -- you know, there's a lot of evidence against him. I don't think it's a make or break for the government's case, because even if the statement is suppressed, there is a lot of evidence against Malvo and Muhammad as well. But this will be very important...

KAGAN: But you have the defense calling this the Mac daddy, the big granddaddy of all of the hearings.

TOOBIN: It's very important, and the defense does have a chance here, because there were some very unusual circumstances surrounding this interrogation.

KAGAN: Let's talk about November 7, and how prosecutors kind of moved him from federal custody into state custody, that window of opportunity.

TOOBIN: What happens is -- people may remember, he was arrested in Maryland in federal custody. After a couple of days, he was moved to Virginia into state custody. He had a lawyer in Maryland. The lawyer in Maryland said, "Don't talk to my client." He didn't talk in Maryland. But when he moved, he got a new lawyer in the Virginia system.

KAGAN: Well, in fact, didn't they -- there was a few hours where they actually had dropped the federal charges, and they were in the process of doing the state charges, so there was kind of a loophole in the system there.

TOOBIN: There was a gap. It's very unusual when you have this sort of transfer of custody. And the state prosecutors in Virginia say he didn't have a lawyer in Virginia at that point. So there was no one there to say, don't to you to my client. They spoke to him. He did waive his Miranda rights in writing.

KAGAN: Kind of sort of. Wasn't there some points where he's going, well, shouldn't I talking to my lawyer? Or I mean, he was asking about a lawyer.

TOOBIN: That's one of the things that's going to be addressed today, is what precisely he said about having a lawyer. There is a dispute between the two sides about whether he really asked for a lawyer, or just sort of discussed the subject of a lawyer. He signed the Miranda waiver, the waiver of his rights, but he just signed it within "x," which is somewhat peculiar.

KAGAN: A rather odd thing.

TOOBIN: And the tape, the six-and-a-half hour tape includes his statements about the crimes, but it doesn't include any of these negotiations about the lawyer.

KAGAN: How convenient.

TOOBIN: So that's convenient for the police; another thing that will come up today.

KAGAN: What about the fact that at the time he was only 17, his status as a juvenile?

TOOBIN: That is another factor as well. Again, none of these factors are dispositive in and of themselves. It's not completely determinative of whether the motion will succeed or fail, but they are all factors that will play in.

KAGAN: OK, looking at it going both ways, if the statements don't go in, the judge says, sorry, you know, you did not handle that properly, it doesn't hurt -- I mean, of course, it doesn't help the prosecution's case, but you're saying there is so much evidence.

TOOBIN: There's so much evidence here. Remember, you have the car with the sniper nest set up in it. You have all of the circumstances surrounding their arrest, their possession of the weapons.

But what's especially important about this statement is that it solves some of the mysteries of who shot which person. He admits in the statement, according to what the government has said, to 3 of the 10 shootings. That's very important for the government to determine who actually did it. That evidence, they don't have in many other ways, so that could be very important.

KAGAN: And then, that, quickly, brings me around to the other suspect, John Allan Muhammad. He had an important hearing within the last week, too, did he not, where they're talking about you don't have to be the triggerman in order to possibly face the death penalty?

TOOBIN: That's another big issue to be determined...

KAGAN: Yes.

TOOBIN: ... about whether the triggerman stuff matters, whether it matters if you can prove who shot each victim, because that is going to be probably the murkiest part of the government's case.

KAGAN: We'll be watching it as it goes later today. And you're joining us in a couple of hours. You're not going anywhere.

TOOBIN: Not going anywhere.

KAGAN: Jeffrey Toobin, very good.

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