Malvo trial becomes test of sanity

The Virginian-Pilot/November 10, 2003
By John Hopkins and Tony Germanotta

Chesapeake -- The wall of evidence against sniper suspect Lee Boyd Malvo essentially crumbled the moment he entered an insanity defense.

The trial, which starts today in Chesapeake Circuit Court, no longer centers on whether he shot and killed innocent people last year in the Washington, D.C., area. It is now about his sanity at age 17 when he pulled the trigger.

Malvo's defense team wants to convince jurors the teenager was "under the spell'' of his alleged accomplice, 42-year-old John Allen Muhammad.

"It's not going to be an easy sell,'' said Michael S. Arif, one of Malvo's lawyers. "It's hard to believe that someone could become so totally taken over.

The insanity defense worked for John Hinckley in 1982 when he stood trial for attempting to assassinate President Ronald Reagan. In general, however, the defense is seldom used and rarely works, according to legal experts.

If convicted, Malvo faces a potential death sentence. Malvo was transferred Sunday morning from Fairfax County Jail to the Chesapeake City Jail. He is on trial for three felony charges: the Oct. 14, 2002, killing of 47-year-old Linda Franklin in the commission of an act of terrorism; the killing of more than one person within a three-year period; and the unlawful use of a firearm during the crime.

If found not guilty by reason of insanity, Malvo could be committed to an institution.

Malvo's defense team has to prove he did not understand the nature, character and consequence of his action; or was unable to distinguish right from wrong; or was driven by an irresistible impulse to commit the acts.

To begin the trial today with a defense strategy of total denial would have been difficult considering the evidence against Malvo.

Forensics experts say their tests show his finger and palm prints are on the Bushmaster rifle that fired the bullets that killed eight people and wounded three others in the sniper attacks in Virginia, Maryland and Washington, D.C., last year.

The murder weapon was found in the car, a 1990 Chevrolet Caprice, where Malvo and Muhammad were sleeping at the time of their arrest in October 2002.

Even more damning are statements Malvo made to investigators and jail guards, in which he allegedly talked of the killings as "missions,'' and bragged about his marksmanship. During one interview, Malvo is said to have laughed as he told investigators how he shot one victim in the head.

Prosecutors are expected to argue that Malvo knew what he was doing and that his late-blooming insanity is a scheme to avoid punishment.

Fairfax County Commonwealth's Attorney Robert Horan plans to have his own expert psychologist evaluate Malvo and analyze defense reports of his mental state.

The defense, on the other hand, will paint Malvo as a young man under the influence of Muhammad, an ex-soldier who illegally transported the Jamaican-born Malvo into the United States and controlled every aspect of his life.

"His cultural background &made him very, very vulnerable to somebody who had Mr. Muhammad's indoctrinational skills,"said Craig S. Cooley, another Malvo defense attorney. "I really think that when we can put it on trial, it's going to be very, very clear.

"I understand why folks would have a very negative impression of Lee,"Cooley said, "and certainly, any feeling human being would condemn the acts attributed to Lee.

"I hope they keep an open mind to listen to how Lee ended up in the situation he ended up in. Then assign the proper degree of culpability to Lee and his co-defendant."

Muhammad came along at a particularly vulnerable time for Malvo, Arif will argue. Malvo had been left alone in Antigua by his mother and had become ill. Muhammad nursed him back to health and became the father figure Malvo never had, Arif said.

There were periods of time when Malvo was completely isolated from anyone but Muhammad. Born to a mother in the Seventh-day AdventistChurch, Malvo converted to Islam and started going by the name "John'' after he met Muhammad. In late 2001, Malvo ran away from his mother to be with Muhammad in the state of Washington.

Although they are not related, Malvo refers to Muhammad as "father.'' "It's just hard to imagine the degree of indoctrination that was involved here,'' Cooley said.

Arif said the jury would "hear testimony about this evil look that Muhammad has that freezes people. It froze Lee on a number of occasions where Lee is talking with somebody, and he gets the look, and boom, cut off."

The issue of Muhammad and Malvo's relationship should be explored in great detail, given that the potential sentence for Malvo is death, said Temple University psychologist Larry Steinberg, who is an expert on adolescence and juvenile justice. "We know that susceptibility to pressure from others is something that is higher during adolescence than adulthood,'' Steinberg said.

Such influence should not excuse Malvo from any crime, nor should it be overlooked in determining a punishment, Steinberg said. "I think it's not an either-or. It's a matter of degree. You can be less responsible without being completely free of responsibility.''

There are many examples in recent U.S. history of "mind control,'' said Steven Alan Hassan, a licensed mental-health counselor and author of the book, "Releasing the Bond."Hassan points to Jim Jones and Marshall Applewhite.

Jones was a religious leader whose thought control was so strong he led his congregation of more than 900 in a mass suicide 25 years ago in Jonestown, Guyana.

Applewhite, the Heaven's Gate leader, persuaded 39 people to kill themselves in 1997 as a way of getting to heaven on a UFO.

"If Muhammad was playing a father figure role for Malvo and they were spending all their time together, I would say it could take a matter of days or weeks for him to be completely dependent,'' Hassan said.

The insanity strategy in the case could be to simply keep Malvo off Virginia's death row.

"This issue is really not only about whether he is criminally responsible for his actions,'' said David Siegel, professor at New England School of Law in Boston. "The issue is even if he is criminally responsible, if the death penalty is the appropriate sentence.''

"This is all being set up to try to save his life,"said Learned Barry, deputy commonwealth's attorney in Richmond. "He's not crazy."

Cooley will argue that Malvo was only 17 and was being led the whole way by Muhammad, who had been with the younger defendant since Malvo was 15.

That, Barry said, will allow the defense to build its mitigation arguments into the case long before the punishment phase of the trial begins.

Insanity was basically all the defense was left with, once the judge refused to bar Malvo's alleged confessions or the physical evidence against him, said several attorneys.

If Malvo's lawyers claimed he didn't do it, Barry said, the defense team would "lose a lot of credibility,"with Chesapeake jurors.

Virginia is second only to Texas in the number of people it executes, and the state has sent three juvenile killers to their deaths since 1976. Virginia's position on juvenile executions is one of the reasons Malvo's case is being prosecuted here instead of Maryland, a state that prohibits the execution of juveniles.

Malvo's trial, expected to last about two months, will be more than a head-to-head battle of mental experts for the prosecution and defense.

Jurors are expected to hear from victims' families, Malvo's family, teachers and friends.

The defense will likely try to keep jurors from seeing the gruesome details of the killings or hearing the plaintive wails of survivors. Such evidence has been allowed in Muhammad's trial because he, like Malvo, was charged under a new anti-terrorism law.

The prosecutors in Muhammad's case have convinced the judge that such testimony, although inflammatory, is permitted under that statute to establish the extent of terror created by the snipers.

If the jury finds him guilty of any charge less than capital murder, Fairfax County Circuit Judge Jane M. Roush would release the panel and she would determine Malvo's fate.

If the jurors find that Malvo is guilty of capital murder, they must then hear evidence on the appropriate sentence. Horan has not said if he would recommend a death sentence.

The penalty phase will be an ordeal for all involved if he is convicted of the capital offense, defense attorney Arif said. At the penalty phase, details ordinarily excluded from jurors as unfairly inflammatory are allowed.

Particularly gruesome is the 911 call made by Linda Franklin's husband, William, moments after she was shot in the parking lot of a Home Depot.

"That is the single worst thing I have ever heard in my life,"Arif said. "You can't help but feel. The guy is standing there, and all of a sudden his wife is gone. Not only is she gone, she's not even recognizable.

"You hear his voice on the 911 tape has gone up like six octaves. And the operator is saying, 'Ma'am, I can't understand you, Ma'am, slow down. Ma'am,' his voice is so high. It is awful, absolutely awful. And there's nothing you can do about it. It is what it is."

Jurors in Muhammad's trial cried when the 911 tape was played. The Malvo jury will also be affected, Arif said.

Such emotion will be hard to combat, he conceded.

"It will come in, and the jury will hear it,"Arif said, "And rightly be upset about it. Rightly hate anybody sitting anywhere near any defendant in this case, whether it's Muhammad, Malvo or anybody else."