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Jewish World Review Nov. 25, 2003 / 30 Mar-Cheshvan, 5764

Jonathan Turley

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Will Malvo jurors spare life of young suspect? | With the start of the trial of accused Washington, D.C., sniper Lee Malvo, the public is being introduced to America's most troubled teen. Unlike his father figure, John Muhammad, who was found guilty Monday of murder in one of 10 sniper killings, Malvo is not denying his role in the murders. Instead, his attorneys are developing an insanity defense that bears striking resemblance to other cases involving infamous criminal duos. Indeed, his insanity plea may be more of a tactical device than a legal defense: The lawyers for Malvo, now 18, may be using the claim to convert the guilt phase into a trial over the proper punishment of a boy-killer.

Since his 2002 arrest, Malvo has been a menace to himself. After his transfer to Virginia, he reportedly made incriminating statements to investigators and prison guards while boasting about his deeds. That, coupled with his prints on the Bushmaster rifle used to shoot the victims and other physical evidence, left little room for a plea of innocence.

However, there may be more to this insanity defense than a simple act of desperation. If used effectively, it just might save his life.

The insanity defense has developed a certain mythology among laymen. They believe that guilty defendants routinely are released under insanity claims, including cases in which the claim was as premeditated as the murder. In reality, the insanity defense is one of the least successful criminal defenses on the books.

Insanity rarely is raised in criminal courts, accounting for fewer than 1% of all cases. Of this small number, only one in four such claims succeed due to the difficult burden of proof. To prevail in most states, defendants must be incapable of discerning the difference between right and wrong or, alternatively, show a lack of control over their actions.

A successful case typically involves someone with a history of diagnosed mental illness and a sudden outburst of violence. John Hinckley Jr. typifies this pattern. His 1981 attempt to assassinate President Reagan involved little planning; his parents recently had kicked him out of the house due to his instability.

Not only does Malvo lack a clear history of mental illness, but he also was a promising student, viewed as clever and capable. Instead of a sudden outburst of violence, Malvo participated in weeks of attacks that claimed 10 lives and covered at least four states. Rather than revealing some unhinged motive such as Hinckley's obsession with actress Jodie Foster, Malvo bragged of his prowess with a sniper rifle and his role in terrorizing the U.S. capital. Finally, where insane defendants often act with indifference to their own safety (or even with suicidal inclinations), Malvo struggled to avoid capture and allegedly sought to extort $ 10 million to end the killing spree.

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Malvo's defense could derail like the 1948 defense of Martha Beck and Raymond Fernandez, the so-called Lonely Hearts Murderers. They used personal ads to lure 20 women (and at least one child) to their deaths. When caught in Michigan, Beck asserted insanity and, like Malvo's claim of domination by Muhammad, said she had been under Fernandez's control. Despite supporting psychiatric testimony, Beck could not overcome the murders' long span, careful planning and efforts to conceal them. The duo that killed together ultimately was executed together.

Given these legal and practical hurdles, one could dismiss Malvo's use of the insanity defense as — well, insane. However, the true purpose of the insanity defense may not be to prove innocence or even insanity. The insanity claim will allow the defense to introduce witnesses and evidence that normally would be held for the penalty phase.

In some respects, this is a variation on the strategy used in another famous trial: Nathan Leopold and Richard Loeb, accused of the 1924 "thrill killing" of 14-year-old Bobby Franks in Illinois. Their legendary attorney, Clarence Darrow, surprised everyone by pleading them guilty to focus on the death penalty. As in the Malvo case, Darrow introduced evidence of a domination relationship, which he referred to as a "king/slave" relationship. Darrow emphasized that Loeb, like Malvo, was only 18 (Leopold was 19). Darrow focused on presenting a psychiatric profile and evidence. At that time called "alienists," psychiatric experts were a new element for trials, and Darrow emphasized the same type of elements expected to be used by Malvo's lawyers. They claimed Malvo was fascinated with the movie The Matrix . The young killers were portrayed by experts as "gradually projecting a world of fantasy over into the world of reality, and at times even confused the two."

In a defense strikingly similar to Malvo's, Darrow portrayed the men as acting under a strange compulsion: They got "no pleasure from the crime" and approached it as "an intellectual affair devoid of any emotion" without any "feeling of guilt or remorse." Notably, this was not a strict insanity defense, but the use of a person's mental state to chip away at the imposition of the death penalty. (Darrow succeeded; both men were sentenced to life plus 99 years.)

With an insanity defense offered in the guilt phase, Malvo's lawyers more than double the time and witnesses who can present evidence against a death penalty. Ultimately, at the penalty phase, the defense does not have to convince jurors Malvo was entirely crazy; half crazy will do. When coupled with his youth and dominance by Muhammad, such evidence might sway a few jurors. Some may be more willing to compromise on punishment.

The result of this defense will make Malvo's trial infinitely more interesting than Muhammad's. With Malvo, jurors are being invited into the head of one of history's most troubled youths. In working through the twisted logic of a teen sniper suspect, the jury may find an unsettling reality not unlike the one presented by Darrow in the Leopold and Loeb trial. In his closing, Darrow addressed the question on everyone's minds: "Why did they kill little Bobby Franks? . . . They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man, something slipped."

This defense's power is that it is offered as an explanation, not an excuse. The Malvo defense is an effort to understand the conflicting notions of a boy-killer or sniper-teen, an adolescent who doodles in court as his path of murderous destruction is detailed. If Malvo is spared, it will be because jurors decided to punish the killer but spare the boy.

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JWR contributor Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a practicing criminal defense attorney. Click here to visit his website. Comment by clicking here.

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© 2002, Jonathan Turley