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FACING DEATH IN VIRGINIA:
THE PROSECUTION OF THE JUVENILE DC SNIPER SUSPECT

Professor Joanmarie Ilaria Davoli
George Mason University School of Law
JURIST Guest Columnist

They blazed a trail of horror and senseless murder throughout the Washington, DC region. They evaded massive police searches, roadblocks, and were even permitted to drive away unsuspected from police encounters. The two alleged DC snipers now await their separate capital murder trials in isolation cells in two Virginia jails: John Muhammad, the adult, in Prince William County, and John Lee Malvo, the juvenile, in Fairfax County. Thus far, the evidence against each seems extremely powerful, and the chances of conviction appear great. In fact, the reported confession of the juvenile Malvo provides Commonwealth痴 Attorney Bob Horan with his own powerful ammunition. Yet, before there is gleeful applause for the injection of poison into Malvo痴 body to end his short life, we should acknowledge that the prosecution of Malvo as an adult raises at least three disturbing issues about the treatment of juveniles in the United States.

First, the very location of Virginia as the jurisdiction in which to prosecute stems not from the quality of the evidence, but from the availability of the ultimate sentence for juveniles: death. Federal and state authorities made the bloodthirsty decision to prosecute John Malvo in Virginia primarily because it is one of the few jurisdictions that Malvo could receive the death penalty. As a 17-year-old juvenile, Malvo is exempt from capital punishment by statute in both Maryland and the federal system. Although the United States Supreme Court has ruled that the execution of 16 and 17 year olds does not violate the Constitutional prohibition against cruel and unusual punishment, most states prohibit the execution of juveniles. The Commonwealth of Virginia shares the gruesome distinction of killing children with twenty-one of the other states, and only one foreign country: Iran.

Second, the isolation of Malvo by the Fairfax County police department during a seven-hour interview ensured that there was no adult present concerned about protecting Malvo痴 interests. The police interrogation, while perhaps constitutional, still defies common decency for treatment of minors, particularly foreign-born ones. Imagine an analogous situation if an American teenager were taken into custody in Antigua or Pakistan, or Iraq. The clear indication of such behavior would be that the foreign authorities were attempting to isolate the juvenile to trick or to coerce him into cooperating with the police. The authorities would be seen as preying upon the teenager痴 vulnerability in addition to his ignorance of the local system to ensure his cooperation. Both the police and Malvo knew that no parent awaited him outside the door to take him home at the end of the interview. They knew that no phone call could reach a concerned family, ready to offer advice and assistance if requested. Malvo had no trusted relative expecting his return. This was no routine interrogation, with the minor brought to the police station by the contacted parent. In fact, Malvo痴 family seems to lack either the interest or the ability to support and protect him. The police proceeded with the confident knowledge that Malvo is completely alone in this world. Not only did the police move quickly, interrogating Malvo immediately after federal charges were dropped and before a defense attorney was appointed on his Virginia charges, but they also refused to allow his appointed guardian ad litem access to him until the confession was complete. Instead, adult police detectives kept the teenage suspect completely isolated until he confessed to firing the deadly bullet.

Such maneuvers indicate that the primary goal behind the interrogation was to discover through Malvo the identity of the triggerman in both the Fairfax and the Prince William murders. In Virginia, proving the triggerman痴 identity greatly enhances the prosecutor痴 ability to get a death sentence that will be upheld on appeal. Even though a new anti-terrorism law does not require that the defendant be the triggerman to receive the death penalty, that law has not yet been reviewed by any appellate court. Without proof of the triggerman痴 identity, there is still a risk that the death penalty wouldn稚 survive appeal. Malvo痴 confession serves as insurance that he will not only be convicted, but also be eligible for the death penalty under Virginia law.

Third, and most troubling, are the conditions under which Malvo lived while he resided in the United States. Apparently, Malvo has been under Muhammad痴 sway since at least age 15 and perhaps age 13. All news coverage describe Muhammad as a stern, controlling, demanding, and dangerous man, who violated custody orders after both his first and second divorces. Because of Muhammad痴 threats to her life, his second ex-wife was allowed to relocate with their three minor children to a secret location. While in the U.S., Malvo totally depended upon the strict and dominating Muhammad. In addition, Muhammad held the ultimate power over Malvo: the power to expose him as an illegal alien most likely in violation of his bond for immigration violations. Even more disturbing is that so many officials were aware that Malvo lived with Muhammad, and never contacted child protective services or even inquired about custody documents. They resided together in shelters, enrolled Malvo in school, and had some contact with immigration authorities, and all of those involved apparently accepted some vague claim that Malvo was either Muhammad痴 son or stepson. Typically, proof of custody is necessary before a child can be enrolled in the public school system, and certainly should be required prior to allowing a juvenile to cohabitate with adult men in any type of shelter. Otherwise, laws designed to protect children from predatory adults would be easily thwarted. Throughout the two or so years of Malvo痴 residence with Muhammad in public facilities, there should have been some inquiry into the custody situation.

Perhaps none of this ultimately would have mattered to the victims. Perhaps, even if Malvo had never been involved, or had been placed in foster care or incarcerated pending deportation, Muhammad would have gone on his bizarre murder spree alone. However, had Malvo been treated as the juvenile he always was while in this country, perhaps he wouldn稚 now be facing trial and execution under the legal fiction that declares him an adult.


Joanmarie Ilaria Davoli is Acting Director of the Law & Psychiatry Center and Clinical Professor of Law at George Mason University School of Law. Prior to joining the faculty at George Mason she worked as a public defender and criminal defense attorney in Fairfax County, Virginia.

January 2, 2003

GUEST COLUMNIST

JURIST Guest Columnist Joanmarie Ilaria Davoli is Acting Director of the Law and Psychiatry Center and Clinical Professor of Law at George Mason University School of Law.. After graduating from the Georgetown University Law Center in 1988, she spent 11 years as a criminal defense attorney. Professor Davoli served as a staff attorney with the South Carolina Death Penalty Resource Center and later as an assistant public defender in both Charleston, South Carolina, and Fairfax County, Virginia. She represented clients on charges ranging from minor misdemeanors to capital murder, and her litigation experiences reflect a commitment to protecting the rights of the individual.

While representing death row inmates and criminal defendants, Professor Davoli discovered that an extensive, untreated mentally ill population suffers from repeated incarcerations with little or no medical treatment. Her successful use of psychiatric evidence in defending her clients includes the life sentence she procured for her client in Commonwealth v. Muwwakkil. This case remains the only life sentence ever returned by a Fairfax County jury when the Commonwealth was seeking the death penalty.

Professor Davoli's experiences with the incarcerated mentally ill furthered her interest in the academic study of mental illness issues in law. She became a full-time faculty member with the establishment of the Law and Mental Illness Clinic in January 1999.