Defense's bet: Brainwashing

Experts say it's unlikely to affect verdict

Daily Press/December 11, 2003
By Kim O'Brien Root

Chesapeake -- For the past week, defense lawyers representing Lee Boyd Malvo have put one mental-health expert after another on the stand to talk about how intense brainwashing made the sniper defendant a killer.

But will it have an effect on the jury?

Maybe, some experts say, but it's doubtful that the argument will make a difference in a finding of guilt. People are still dead, and despite what Malvo has told psychologists, the now-18-year-old confessed to police that he was responsible.

"The jury is listening," said Tod Burke, a criminal justice professor at Radford University. "They'll probably say there was some influence there. But does it absolve him of responsibility? I'd say no."

Besides psychologists and psychiatrists, defense attorneys have put on the stand experts on cults and child soldiers to try to prove their point. Attorneys might succeed in proving the brainwashing theory, but that's likely to have more of an effect on sentencing, rather than on whether Malvo is found guilty, some experts say.

"Lee Malvo may have been victimized by John Muhammad, but there are 10 people who are now dead," said Rick Ross, executive director of a New Jersey-based organization that studies cults. "Their families have been far more victimized. ... There are limits to what a jury is able to forgive in the name of brainwashing. I don't think a successful argument can be made that he was more victimized."

The defense continued on that theme Wednesday. Malvo's lawyers called two expert witnesses, who testified that intense indoctrination at the hands of John Allen Muhammad - now convicted and recommended to die for his part in the killings - left Malvo unable to determine right from wrong, and therefore legally insane. The defense will continue presenting its case this morning.

Malvo's attorneys have presented an insanity defense to charges that Malvo killed Linda Franklin during a three-week sniper spree that terrorized the Washington, D.C., metropolitan area in October 2002. Ten people died and three were wounded in D.C., Virginia and Maryland during that time.

Inability to decipher between right and wrong has to be proven to meet the legal standard for insanity.

"He was taught right and wrong don't exist," said Dewey G. Cornell, a clinical psychologist and University of Virginia professor who spent days on the stand talking about Malvo's indoctrination by Muhammad.

Malvo recanted his confession to Cornell, saying he was the spotter, not the triggerman, in all but one of the D.C. shootings.

Cornell, also director of the Virginia Youth Violence Project, met Malvo 21 times and interviewed him for 54 hours. At first, Malvo lied to him and went off on tangents about political ideology - but eventually, Cornell said, he believed that Malvo was telling him the truth - that he listened to whatever Muhammad told him to do.

That included shooting a Tacoma, Wash., woman in the face months before the D.C.-area shootings as a test to please Muhammad, who became a father figure and mentor to the Jamaican boy with a transient, abusive background.

Once Malvo ran away from his mother to be with Muhammad, the older man ruled all aspects of Malvo's life, from what he ate and when he slept to how he exercised, Cornell said.

Muhammad also made Malvo watch war movies - holding a gun - and play sniper video games over and over, Cornell said. Malvo told the psychologist that he saw the movie "The Matrix" more than 100 times. The movie features a man, Neo, who - under the advice of his mentor, Morpheus - fights machines that have enslaved mankind.

Cornell said Malvo was suffering from disassociative disorder, a category of mental diseases that includes multiple-personality disorder. Cornell also said he first thought Malvo might have multiple personalities but that he ruled that out. Malvo did tell him there were times when he would "zone out," he said.

On Wednesday, a forensic psychiatrist testified that Malvo had a "pathological loyalty" to Muhammad and was like a "puppet in his hands." Cornell has testified Malvo feared that Muhammad would shoot him if he didn't go along with the mission and that if Malvo was caught, he was to "self-destruct."

Insanity isn't often used as a defense, and when it is, "juries usually don't buy into it," Radford University professor Burke said. Consider the Patty Hearst case: At 19, Hearst was kidnapped by the Symbionese Liberation Army, held for two months, tortured and indoctrinated in SLA politics before she became a revolutionary like her captors. At her 1976 trial, Heart's lawyers argued that she was brainwashed, but a jury found Hearst guilty.

James Duane, a law professor at Regent University in Virginia Beach, said there's still a question whether the judge hearing the Malvo case would even give the jury an instruction about insanity. Juries are given instructions to factor into their decision before they begin deliberating.

For example, an instruction could say that if a jury finds Malvo to be insane, the jury should find him not guilty.

There's a difference between brainwashing and insane, Duane said. One could argue that the terrorists who flew jetliners into the World Trade Center and Pentagon on Sept. 11, 2001, had been exposed to indoctrination, he said. But would the terrorists, had they lived, been able to get away with an insanity defense?

The defense also needs to show that Malvo was under Muhammad's influence for each shooting, Burke said. There's been testimony that Malvo had misgivings: Forensic psychiatrist Diane Schetky said on Wednesday that Malvo was conflicted about shooting 13-year-old Iran Brown outside a middle school.

It appears that the defense has put together the best case it could, Duane said. But it's hard to prove temporary insanity, he said, when the crimes took place over a couple of weeks and unquestionably took a lot of planning.

"The real question is," Burke said, "was there a certain point he (Malvo) could have decided to back out?"

Duane said he expected that Malvo would be found guilty. He's less sure that Malvo will get the death penalty. The defense might have just have been setting the stage, he said, by presenting mitigating factors even before the case reaches the "real battle" during the penalty phase - to keep Malvo alive.