Malvo defense tactic futile?

Richmond Times-Dispatch/November 24, 2003
By Rex Bowman

Chesapeake -- Prosecutors hope to rest their capital-murder case against sniper Lee Boyd Malvo today. Then they will brace for what promises to be his trial's most intriguing and contentious phase, when defense attorneys try to convince jurors that, at the time of last fall's sniper shootings, Malvo was insane.

Though the teenager's insanity defense has caused consternation among the families of those shot last year who worry Malvo will get away with murder, few experienced observers think the defense team will succeed as its begins laying out its case this week, according to interviews.

Lawyers, psychologists and courtroom observers said the crime, killing 10 people in the Washington area at random as they performed mundane chores, is so odious that jurors will likely conclude no amount of madness would justify an acquittal. According to one widely held rule of thumb for insanity defenses, the more violent and vile the crime, particularly a homicide, the more willing jurors are to ignore insanity claims and vote guilty.

After all, Georgetown University law professor Heathcote Wales noted, Milwaukee cannibal Jeffrey Dahmer's taste for human flesh was not considered so insane that it kept him out of prison. And Andrea Yates, the Houston mother who drowned her five children in a fit of postpartum depression, was also not deranged enough to merit acquittal.

"I see a very low probability of it succeeding," Wales said of Malvo's insanity defense. "Studies show most juries have their own notions about who's crazy or not."

Still, with two psychiatrists, six psychologists and one neuropsychologist lined up to testify in the coming days, along with those who knew Malvo when he was a small boy living in the Caribbean, defense attorney Craig S. Cooley of Richmond hopes to convince a jury that a youthful and naive Malvo, now 18, was brainwashed by convicted sniper John Allen Muhammad to take part in the killings. Muhammad's quixotic aim, according to Cooley, was to take his children from his ex-wife and lead them and Malvo to Canada to create a utopian society.

Cooley argues that, after he met Malvo in Antigua in 2000, Muhammad created nearly ideal conditions for brainwashing the boy. The older Persian Gulf War veteran kept the frail, attention-starved Malvo close to his side as they lived in cars and shelters. He kept Malvo dependent on him for food and praise. And he continuously fed his protege his unique world vision, an outlook on life that included a hostility toward government and an appreciation for militaristic skills.

Psychologists say isolation, dependency and the constant preaching of a message can contribute to a successful brainwashing, or "thought reform," which is listed as a dissociative disorder in the leading psychiatric manual.

Those who track cults say teenagers such as Malvo from broken homes are particularly susceptible to mental manipulation.

"He indoctrinated him, he made him into a child soldier," Cooley said in his opening statement to jurors, previewing his defense case. "Mr. Muhammad was manly, a man of discipline who showered him with attention and taught him, in his mind, to be a man."

As Cooley spoke in the Chesapeake courtroom, Malvo, wearing a soft sweater, sat at the defense table and sketched on a pad of paper, the very picture of a young man without cares.

But Malvo's predicament is grim. He faces two counts of capital murder, and a possible death sentence, in the Oct. 14, 2002, shooting death of Linda H. Franklin, 47, outside a Home Depot store near Falls Church.

Muhammad, 42, was convicted of capital murder last Monday in the Oct. 9, 2002, shooting death of Dean H. Meyers, 53, in Prince William County near Manassas. A jury is to resume deliberating today whether to recommend a death sentence or life in prison.

Warrenton lawyer Blair Howard said Malvo's attorneys might also be thinking about the sentencing phase with all their talk of brainwashing. "Maybe the whole purpose of this is to . . . generate some sympathy for a life sentence."

Unlike most lawyers, Howard has had success using his client's mental state to win acquittal. In 2000, he represented Lorena Bobbitt, the Manassas wife who became a media sensation after slicing off her abusive husband's penis. Charged with malicious wounding, she won acquittal by a jury after Howard argued that her violent act resulted from an irresistible impulse.

Under Virginia law, a jury can find defendants not guilty by reason of insanity for any of three reasons: they did not know the difference between right and wrong, they could not appreciate the consequences of their actions, or an irresistible impulse compelled them to act.

"In the case that we put on," Howard said, "the evidence was overwhelming that she genuinely suffered from a mental disorder." Yet Malvo's case bears less comparison to Bobbitt's than it does to the case of Patty Hearst. In 1974, Hearst, heiress to a media empire, was kidnapped from her California home by the Symbionese Liberation Army, a group of revolutionaries who until then were virtually unknown. Cameras later captured Hearst toting a rifle during a bank robbery.

Eventually captured, she was tried for taking part in the heist. Her attorneys argued that the revolutionaries, through isolation and rape, had brainwashed her into participating. A jury did not buy it, convicting her. She was sentenced to seven years in prison.

But Rick Ross, executive director of the New Jersey-based Ross Institute, which tracks cults and other groups that use indoctrination techniques, said there is something to the idea that brainwashing can lead to insanity.

"We've seen people act seemingly insane in a way that we can't otherwise explain, given their personal history," he said. "How else can you explain why hundreds of Jim Jones' followers would kill themselves in Jonestown?"

Jones, leader of the Peoples Temple, led his followers to British Guyana in South America, where 912 died in November 1978. While some were shot to death, most of those who died voluntarily drank poison at Jones' command.

Ross said he believes, based on his reading of media accounts, that Muhammad did indeed brainwash Malvo, but nonetheless the jury will find Malvo guilty. Like Wales, Ross said jurors will weigh Malvo's victimization at Muhammad's hands against the greater victimization of the 10 people shot dead.

"Historically, there is some willingness in the judicial system to allow for compassion and understanding of the deeds" of those who have been indoctrinated, Ross said. "But when they cross the line into violence and death, [jurors] are less likely to show compassion.

"Do I think his insanity defense will result in an acquittal? Absolutely not. The most that Malvo can expect from the judge and jury is that the claim of brainwashing will ameliorate and mitigate his sentencing."

Dr. Michael Langone, head of the Florida-based American Family Foundation, an organization that researches psychological manipulation, said even if jurors believe Muhammad brainwashed Malvo, they do not have to accept that he did not know right from wrong. "One of the misconceptions about brainwashing, in my opinion, is that people think that if you're brainwashed you're like a zombie, you don't make choices. You could conceivably be brainwashed and know the difference between right and wrong."

Cooley and co-counsel Michael Arif have promised to detail for jurors their client's destructive devolution. Already they have shown the jury a picture of a gentle-looking Malvo, then 15, clutching his Bible. And they said others will testify about the metamorphosis Malvo underwent as the older man began to mold him.

If their goal is, at a minimum, to make Malvo seem pitiable, they have achieved some success. Andrea Walekar, the daughter of one of the sniper-shooting victims, said she looked at Malvo as she testified last week and was surprised that he appeared "so young and vulnerable."

However, she said her feelings did not change her mind about his sanity. "He was 17 years old, he knew what he was doing. When I was 17, I knew what I was doing."