Younger Sniper Suspect's Lawyers Press Insanity Defense

New York Times/December 5, 2003
By Adam Liptak

Chesapeake, Va. -- The trial of Lee Malvo, the younger man accused in last fall's sniper attacks, moved into a new and crucial phase on Thursday, as mental health experts tried to persuade the jury that he was insane at the time of the crimes.

A neuropsychologist described Mr. Malvo as cheerful and goofy in a recent interview, an attitude he said was "quite out of step with the seriousness of the situation." An expert on deprogramming members of cults suggested that the relationship between Mr. Malvo and John A. Muhammad, who has been sentenced to death for his role in the shootings, was a "one-on-one cult." A social worker likened the two men to characters in "The Matrix," the science fiction movie.

Robert F. Horan Jr., the lead prosecutor, argued that some of the experts should not be allowed to testify at all and sought to limit the testimony of others. He told the judge that none of the experts the defense presented or proposed to present could say Mr. Malvo was insane in a legal sense.

"We have an insanity defense that's like a puff of smoke," Mr. Horan said. "There is no real claim that he was insane under Virginia law."

The most defense experts had concluded in their pretrial reports, Mr. Horan said, was that Mr. Malvo's ability to tell right from wrong was "severely impaired." That was not enough, he said.

Judge Jane Marum Roush, in a comment from the bench, agreed with Mr. Horan's description of the legal standard but still allowed the defense's first three expert witnesses to testify.

Judge Roush said the insanity defense required proof that Mr. Malvo was categorically incapable of making the distinction.

"I imagine someone is going to have to say at some point that the indoctrination in this case was so severe that it made Mr. Malvo unable to know right from wrong," she said. "I would be sorely disappointed if there is no such testimony."

Craig S. Cooley, a lawyer for Mr. Malvo, responded, "No more than I would be," and added that defense experts would testify that Mr. Malvo was indeed insane in that sense.

Still, Thursday's testimony did not go that far.

Mr. Malvo's I.Q., at 98, is normal, said David Schretlen, who teaches neuropsychology at the Johns Hopkins School of Medicine and who spent a day administering tests to Mr. Malvo in August. But, Professor Schretlen said, his manual dexterity and the speed at which he processed information were abnormally low.

More striking yet, he continued, was Mr. Malvo's lighthearted attitude during the interview. Mr. Malvo appeared "goofy" and "strangely cheerful," he said.

That same attitude was apparent in court on Thursday, with Mr. Malvo sharing jokes and laughing with the courtroom deputies who guarded him.

"He did describe himself as quite socially alienated, detached from other people," Professor Schretlen added. "He described himself as hypervigilant, suspicious of the motives of other people."

Paul R. Martin, an expert on cults, had a rocky time on the stand, as Judge Roush sustained many prosecution objections to his testimony. Mr. Martin has not interviewed Mr. Malvo and sought to discuss his own seven-year experience in what he called a cult and about his work in deprogramming others who had been brainwashed.

Mr. Horan objected, saying, "There is no evidence of a cult in this case."

Mr. Martin disagreed. "We call the situation a cult of one," he said.

Defense lawyers withdrew Mr. Martin from the stand and said they would ask him a different line of questions later.

Carmeta Albarus, a social worker, interviewed Mr. Malvo for 70 hours in the last eight months. She testified that Mr. Malvo was initially very protective of Mr. Muhammad, to whom he referred as his father.

"They want to use me to kill my dad," Ms. Albarus recalled Mr. Malvo saying, "and it will not happen."

Mr. Malvo also said, to Ms. Albarus and others, that his life and views could be understood by watching "The Matrix." Ms. Albarus did so.

"I saw Neo as Lee," she said. "I saw Morpheus as Muhammad." She was referring to the characters played by Keanu Reeves and Laurence Fishburne.

"Neo was `the One,' who was going to contribute significantly to changing the system," she said. "Morpheus was to me the authoritative figure and the mentor."

Mr. Horan objected frequently throughout the day, saying that evidence about Mr. Malvo's background and psychological problems was being introduced in the wrong phase of the trial.

The jury is now considering his guilt. If Mr. Malvo is convicted, so-called mitigation evidence may be introduced by the defense in an effort to persuade the jury to spare his life.

"They're trying to use mitigation evidence on an insanity defense," Mr. Horan said.

In the morning, Judge Roush issued an order barring lawyers in the case from talking with reporters. She said the defense lawyers' out-of-court statements were improper.

"I think it's an attempt to reach the jurors or the jurors' families," she said. "I'm putting an end to these press conferences."

The ruling was prompted by the publication in The Washington Post on Thursday of a letter from Mr. Malvo to a niece of Mr. Muhammad. The letter, which Judge Roush had declined to admit into evidence on Wednesday, was written last summer, months before the shootings started. "I'm perceived as a walking time bomb waiting to explode," Mr. Malvo wrote, according to The Post.