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

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?

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.

Next question?

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