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What's Up With John Lee Malvo's Guardian?

By Brendan I. KoernerPosted Tuesday, Nov. 12, 2002, at 3:50 PM ET

The court-appointed guardian for Beltway sniper suspect John Lee Malvo, 17, has blasted Virginia police for their interrogation tactics, arguing that his demands for an end to the questioning were illegally ignored. How does a court pick a guardian, and what role does he or she play in a criminal case?

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Court-appointed guardians for juvenile defendants are formally known as guardians ad litem (Latin for "for the purposes of the legal action only"). In Virginia, such guardians are drawn from a pool of attorneys who specialize in juvenile law. They must complete six hours' worth of relevant, continuing legal education every two years and must have participated in at least four cases involving minors. Candidates also need to obtain a certificate of nomination from a judge or a current guardian ad litem before being added to the statewide list. Malvo's guardian, Todd G. Petit, was selected from that list partially based on his experience and partially because of his proximity to the McLean, Va., facility where Malvo is being held.

Guardians ad litem are supposed to represent the best interests of the minor, as opposed to their legal interests. In a criminal proceeding, for example, the guardian may feel the minor is best served by confessing in exchange for sentencing leniency, while the court-appointed attorney may insist that a "not guilty" plea is the only way to go.

The vast majority of cases involving guardians ad litem, however, are civil as opposed to criminal. Custody fights and child-removal proceedings are the most common venues for guardians ad litem to participate; they are often asked to give the judge an opinion as to what resolution will be best for the child. In criminal cases, there's a lot less for a guardian to do—once the trial opens, he or she usually has little more involvement than the standard spectator.

In some states, a juvenile's right to legal counsel can be waived only after "meaningful consultation" with, and consent from, a guardian. Unfortunately for Malvo, pro-prosecution Virginia is not one of those states. According to a legal memo written by Virginia Attorney General Jerry Kilgore last December, guardians need only be consulted when a suspect is up for release or is about to be transferred to another jail. That's why police were likely in the legal clear for waving Petit away last week when he tried to stop Malvo's attorney-less interrogation, in which the 17-year-old reportedly confessed to one of the murders.

Of course, Petit's objections to Malvo's interrogation may soon be moot. Chances are the 17-year-old Jamaican native will be tried as adult. Only adults judged mentally incompetent are assigned guardians ad litem; all other defendants are on their own.

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Explainer thanks Katherine H. Federle of the Moritz College of Law at Ohio State University.

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Brendan I. Koerner is a contributing editor at Wired and a columnist for Gizmodo. His first book, Now the Hell Will Start, is out now.

COMMENTS

Remark From The Fray:

I'm a guardian ad litem in Fairfax and what you say contains a few errors.

First, we don't actually know why Mr. Petit was chosen. Since I know Mr. Petit and have worked with him on several cases, my guess is, because he is competent, thorough, and, until recently, was a public defender in Fairfax County. But you'd have to ask Charles Maxfield, chief judge of the J&DR court, to be sure. He probably wouldn't say. When a judge (rather than just the clerk's office) appoints a GAL, it is likely to be someone in whom the judge reposes special confidence.

Second, Mr. Malvo is not being held in McLean. There is no jail in McLean. It's in Fairfax.

Third, guardians ad litem are not specialists in juvenile law. Most do other work, though many specialize in domestic relations. Since Virginia ranks 51st in the nation in paying court appointed attorneys, you really can't make a living that way.

Fourth, Mr. Petit may or may not stay on as guardian ad litem once Mr. Malvo is certified as an adult to the grand jury and proceedings begin in the Circuit Court. The law is unclear as to whether a juvenile, indicted as an adult, and whose parents are not in the picture, should have a guardian ad litem during the Circuit (adult) Court proceedings. I've had judges thank the GAL and tell him to turn in his timesheet and leave. On the other hand, I tried a robbery case this summer with a 15 year old, where the judge asked the GAL to remain. Really, I think different judges differ on this one.

Since the law IS unsettled, I expect the judge to have Mr. Petit remain involved, and attend the trial. Why give the defense an issue for appeal?

One other thing--you give the example of a defense counsel and a GAL disagreeing about whether a kid should plead guilty or not. First, it is ALWAYS the client who makes that decision. And second, while I've seen odd things in my time, a GAL will usually not participate in the guilt/innocence part of the trial of his ward. It is between the defense attorney and the Commonwealth (prosecution, that is). But the judge is likely to ask the GAL for a recommendation on sentencing.

Why this confusion? Because there are only two or three laws that govern guardians ad litem (8.01-9, 16.1-266, 16.1-266.1 and some mentions in other statutes) and very limited case law. Since Virginia's appellate courts hand down relatively few decisions, it is not too surprising that the GAL's role isn't crystal clear.

-- GMG

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