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CounterPunch
November
23, 2002
The Shameful
Treatment of the 17-Year Old Sniper Suspect
Why Malvo's Confession Should Be Suppressed
by ELAINE CASSEL
The race is on to get capital murder convictions
and the death penalty for the two Beltway sniper suspects, John
Allen Muhammad and John Lee Malvo. Indeed, in a blatant case
of the cart driving the horse, the jurisdiction for their trials
was chosen with the "ultimate sentence" (in Attorney
General John Ashcroft's words) in mind.
By now, it seems certain that both will
be tried in Virginia where, unlike Maryland or federal courts,
juveniles can be sentenced to death.
Considerations of how the two can receive
a fair trial have given way to a rush to execute as soon as possible.
While this is unseemly enough, it is even more troubling for
the system to be treating seventeen-year-old Malvo the same--indeed,
even worse than--forty-two-year-old Muhammad.
Malvo is being held in an adult jail,
albeit supposedly separate from the adult population. Like all
states, Virginia has a procedure that allows a juvenile like
Malvo to be charged and tried as an adult, though only after
a proceeding before a juvenile court judge. This has not yet
taken place.
Malvo, not Muhammad, is the one who was
pressured to confess without access to his guardian or lawyer.
He is the one who has been subject to leaks, even though juvenile
criminal matters are supposed to be confidential.
He is the one whose confession is now
public knowledge and likely to prejudice potential jurors. And
he will likely continue to be prejudiced by a judge's recent
decision not to impose a gag order to prevent further, similar
leaks.
In short, Malvo has not been afforded
the protections even the law of Virginia gives to juvenile defendants.
For all the prosecution's invocation of "the law,"
they sure don't seem to be following it.
Malvo's Interrogation:
Taking Advantage of A Teenager's Isolation
When Malvo was in federal custody, he
was represented by two highly regarded attorneys, one a federal
public defender. No doubt taking their advice, he remained silent
in spite of law enforcement efforts to extract a confession.
But when the federal government handed Malvo over to Fairfax
County, Virginia, he was temporarily without an attorney.
There, cops and prosecutors took advantage
-- questioning Malvo for seven hours. Assuming press leaks have
been accurate, Malvo confessed in detail to being not just the
triggerman, but also even the mastermind of some aspects of the
sniper spree.
During the interrogation, Malvo's guardian
ad litem (who had been appointed because Malvo's parents were
absent) had rushed to the jail and asked to be present at the
interrogation. But the guardian was denied access and, indeed,
ordered out of the facility.
The law is not settled as to whether
a guardian has a right to be present during a juvenile's interrogation,
and this question will likely be a factor in a motion to suppress
Malvo's confession that is certain to be filed by his attorneys.
That motion will also likely question
whether Malvo's confession was voluntary. (Under the Fifth Amendment,
a compelled confession is inadmissible as evidence in court.)
The Suppression
Motion:
Was Malvo's Confession Voluntary?
The suppression motion will be critical
to the outcome of the case in two important respects.
First, if the confession is admitted,
it will likely destroy Malvo's ability to take advantage of Virginia's
insanity or diminished capacity plea. Once a person has made
a seemingly rational statement of events, such a plea is rarely
successful. Then, the admitted confession will virtually ensure
Malvo's conviction.
What facts will the court consider in
deciding whether to admit Malvo's confession? Under the law,
the court will be entitled to take the full relevant factual
context -- the "totality of circumstances" -- into
account. But, surprisingly, Malvo's youth is one fact that probably
will not play a prominent role.
In general, judicial decisions seem to
draw little distinction between juvenile and adult confessions,
unless the juveniles are very young indeed -- under the age of
6 or 7 years old.
Moreover, these decisions fail to take
into account what we know about juvenile and adolescent cognitive
development. Adolescents' less-than-mature brain development
should be relevant to the decision to suppress their confessions
(as well as to the decisions whether to try and punish them as
adults).
Ironically, we are confident enough in
adolescents' immaturity to deny them alcohol, cigarettes, and
the rights to own property, marry without parental permission,
join the armed services, or vote. All of these constraints are
predicated on adolescents' inability to make important decisions
for themselves.
But when it comes to criminal procedure
and punishment -- which addresses decisions that are far more
momentous for the adolescent's future -- we pretend they are
just as mature as adults in order to justify holding them as
accountable as adults.
We ignore psychological reality in order
to perpetuate a legal fiction.
Why Adolescents
Are Especially Prone to Making False Confessions
An adolescent's cognitive ability is
especially ill suited to the situation of interrogation. If you
doubt it, think of the difference between how the average forty-two-year-old
you know, and the average seventeen-year-old you know, would
each fare under police questioning--or even any hostile adult
interrogation (say, by a boss, school principal, or teacher).
To begin, adolescents often tend to be
egocentric, and to try to focus all attention on themselves.
They often have a "personal fable" -- an inflated,
inaccurate self-image. They may believe they are invincible.
They often make bad short-term decisions in the heat of the moment,
ignoring the long-term consequences.
Moreover, as rebellious as adolescents
are correctly reputed to be, there is a flip side: They are prone
to hero-worship. And under the influence of strict, authoritarian,
and sometimes-abusive parents, adolescents often cover for them,
even taking the blame for their actions.
These psychological tendencies make a
teenager more likely than an adult to falsely confess or to exaggerate
his or her share of responsibility in a crime undertaken with
an adult. Recall that the juveniles who confessed to a rape that
took place in Central Park several years ago are now thought
to have done so falsely. No physical evidence linked them to
the crime and someone else--an adult--has confessed to acting
alone.
Why Malvo's
Confession to Being the Sniper Mastermind Is Not Credible
Was the seventeen-year-old Malvo really
as instrumental in planning and carrying out the murders, as
he supposedly confessed?
Recall what reports say he was like before
Muhammad took him under his wing: He was a homeless boy who desperately
wanted a parent who cared about him. He was quiet and well behaved
-- even obsequious -- and he had been a good student before he
was kicked out of school for immigration reasons. (A non-citizen,
he lacked papers to prove his status, and was turned over to
the INS.)
Grateful for a father figure, Malvo was
under Muhammad's "spell," according to numerous observers.
Even when he was apparently ravenously hungry, he would not eat
a sandwich without seeking permission from Muhammad -- who insisted
that Malvo stick to a strict diet (a blend of Islamic and Taoist
restrictions).
Their close relationship may be relevant
to Malvo's reported willingness to take on so much of the responsibility
for the shootings. Surely, his attorneys will be trying to learn
more as they prepare to determine the mental competence and sanity
of their young client.
Finally, remember who Muhammad is: A
forty-two-year-old war veteran with weapons training. And remember
the character of the sniper crimes: Expertly executed, with flawless
getaways, and no evidence left behind sufficient to find them.
(They might still be on the loose had they not initiated contact
with law enforcement.)
When adults and teenagers engage in crime,
are the teens equally responsible? (One is reminded of the bizarre
case in Florida, where two boys have been convicted of killing
their father under the influence of an adult male "friend"
who admits to having sex with one of the boys and giving them
illicit drugs. The adult was acquitted of murder.)
How Malvo Will
Be, and How He Should Be, Treated
Here is what will probably happen to
Malvo: He will be tried as an adult. His confession will be admitted.
He will be foreclosed from a successful diminished capacity or
insanity plea. He will be convicted by a jury prejudiced by news
accounts of his confession. And he will be executed by the state
of Virginia.
Here is what should happen to Malvo:
His confession should be suppressed. Before being tried as a
juvenile, he should receive the full benefit of Virginia law
that, at least in theory, provides for extensive examination
of his social, emotional, and cognitive development.
These assessments should be conducted
by competent, independent (not court-affiliated) psychologists
who understand adolescent cognitive development and who are qualified
to assess Malvo's state of mind both during the crime spree and
the interrogation. The jury should hear their testimony.
If convicted, Malvo should be sentenced
to spend a large portion--if not all--of his life in prison.
There he should be given the opportunities he did not have has
a boy. He should receive an education (his former teachers report
that he was a bright and good student) and have the opportunity
to make a life for himself inside prison walls.
Virtually every adult who ever came into
contact with John Lee Malvo failed him. We, in whose name the
American "justice" system operates, shouldn't likewise
fail him.
Elaine Cassel
practices in Virginia and teaches law and developmental psychology.
She writes and delivers continuing legal education courses in
Internet law, privacy, genetics, and health law and is the author
of Criminal Behavior (Allyn & Bacon, 2001), which examines
criminal behavior from a developmental perspective. Cassel is
a columnist for FindLaw's Writ.
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