Nov 12, 2002 4 min read

WASHINGTON (AP) – Prosecutors in the Washington-area sniper case seem to have put together a tidy package: a weapon, witnesses and an alleged confession from one of the suspects. Legal experts say, however, that leaks to the media about purported incriminating statements by 17-year-old John Lee Malvo could hurt the case.

Virginia was given first shot at prosecuting Malvo and his fellow suspect, John Allen Muhammad, 41, because the state is considered most likely to impose the death penalty. A key element of the state’s case emerged last week when investigators interrogated Malvo, and, according to published accounts, he confessed to several shootings.

The teen’s lawyers will try to get the statements barred from his trial on the ground that he was questioned without his court-appointed guardian or attorney. They also could use the leaks to request transfer of the trial from the Washington area or, later, to challenge any conviction on grounds the jury pool was tainted.

The Constitution’s Sixth Amendment guarantees an accused person a speedy trial by an impartial jury of his or her peers.

“The problem is not getting the conviction. It’s getting one that will stick,” Yale Law School professor Steven Duke said Monday.

Duke said he doubts prosecutors intentionally had details revealed, but “this confession could be made up, as a strategy for getting the older guy to confess.” Investigators also could lie and tell Muhammad the teen implicated him as the triggerman, Duke said.

Malvo was questioned for seven hours Thursday after federal officials handed over Muhammad and him to Virginia authorities for prosecution on murder charges. Sources told The Washington Post that Malvo was chatty and even bragged about his activities but did not discuss Muhammad. The elder suspect reportedly has been uncooperative.

Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. said he is “as outraged as the defense attorneys” that statements were leaked. “No law-enforcement officer, regardless of rank, should be leaking information,” Horan said.

Defense lawyers will have a difficult time persuading a judge to toss out any incriminating disclosures unless Malvo asked for a lawyer.

“The use of these tactics raises the question of whether there are problems with their case,” said Steven Benjamin, a criminal defense attorney in Richmond, Va.

Malvo is being prosecuted for the Oct. 14 slaying of FBI analyst Linda Franklin outside a Home Depot in Falls Church, Va. He allegedly claimed responsibility for the killing.

Duke said it’s difficult to stop leaks because of the intense interest in the two suspects, who authorities believe were responsible for a three-week string of shootings in the Washington area that killed 10 and wounded three. They also are suspected in more than a half-dozen other shootings, including killings in Alabama, Louisiana and Georgia.

“High-profile affects everything: the way the lawyers behave, the prosecutors behave, the cops behave, the witnesses, the judge, the jurors. There’s the opportunity to get on television, the opportunity to write a book. It warps everything,” Duke said. “Everybody is capable of doing mischief that screws up the case.”

Muhammad is being prosecuted in another Virginia county for the Oct. 9 slaying of Dean Harold Meyers, who was gunned down at a gas station in Manassas, Va.

Northwestern University criminal law professor Paul Robinson said that for defense attorneys, the leak in the Malvo case “creates an issue that they can complain about on appeal that they wouldn’t otherwise have had – it creates the potential for reversal on appeal.”

Beth Wilkinson, a former federal prosecutor, disagreed. She dealt with leaks in winning a death sentence against convicted Oklahoma City bomber Timothy McVeigh.

“It’s obviously not good for the prosecution, and it’s not fair to the defendant,” she said. “But it’s rarely ever fatal to a case.”

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Associated Press Writer Matthew Barakat contributed to this story.