Insanity defense was risky strategy

Sniper shootings coverage
CHESAPEAKE, Va. - Lee Boyd Malvo's lawyers waged an elaborate insanity defense. They called four mental health experts who said their client didn't know right from wrong. They brought forth witnesses to talk about Malvo's abusive childhood. They showed drawings Malvo made that exalted Saddam Hussein and Osama bin Laden.

The defense attorneys pulled out all the stops. And they still lost.

A jury's decision yesterday to reject Malvo's insanity defense and convict him of capital murder was exactly what prosecutors wanted in the pursuit of the death penalty for the teen-age sniper. The verdict also illustrates the reluctance of juries to buy into an insanity defense when the crime is so violent.

"If a person is mentally ill, yet capable of extreme acts of violence, they are just as frightening to the average juror" as a sane person, said Steven D. Benjamin, a Richmond criminal defense lawyer. "Jurors may find, despite the law, that a person's inability to resist violent impulses is exactly why they should be convicted."

Insanity defenses are used in less than one-half of 1 percent of criminal cases, and they are successful less than half of the time they're used. It's even more difficult to win an insanity defense in Virginia, where the legal standard is set higher than any other state, according to defense attorneys here.

Lawyers in Virginia must prove that the mental disease was the direct cause of the crime, not merely a contributing factor. In Malvo's case, the defense team argued that Malvo's intense indoctrination by John Allen Muhammad made it impossible for him to know right from wrong.

His defense entailed finding mental health experts to spend hours meeting with Malvo, subjecting him to evaluations from prosecution experts, and tracking down more than a dozen of Malvo's friends and relatives in his native Jamaica to testify to his troubled, abusive childhood.

'Brilliant job'

"I think that Malvo's attorneys have done a brilliant job for their client," said Peter D. Greenspun, the lead attorney for Muhammad, who was convicted of capital murder last month. "It was an incredible effort, and from a personal point of view, I think it will assist them in avoiding the death penalty."

As they laid out an exhaustive insanity defense over the past weeks, Malvo's lawyers also were meticulously building what typically is the centerpiece of a death penalty defense: evidence of their client's troubled mental state.

Underlying tactic

Michael A. Millemann, a University of Maryland law professor who has worked on capital cases, said that might have been the defense lawyers' underlying strategy from the start, given that the standard for jurors to consider mitigating evidence at sentencing is far more lenient than in the guilt phase of the trial.

"I don't think the defense really ever thought they were going to persuade a jury that he was insane and he was going to be acquitted," Millemann said last night.

Jurors could conclude that Malvo's troubled childhood and the powerful influence of Muhammad argue against sending the younger of the two defendants to Virginia's death row, Millemann said, even if they were unconvinced that Malvo did not understand right from wrong.

"That's a very strict test," Millemann said. "It's hard for anybody to really show they didn't know right from wrong."

Paul B. Ebert, who was the lead prosecutor in the Muhammad trial and who might get a chance to try the teen-ager in Prince William County, Va., said he never bought the youth's insanity defense.

"I think this was an attempt on Malvo's part to hoodwink a jury, and I'm thankful that they didn't buy that," Ebert said. "It was clear to me this was a killing team, and Malvo was just as active a participant as Muhammad."

Harmed by own words

The insanity defense was dealt serious blows by letters Malvo wrote in recent months that asserted he was "playing the fool" - letters that suggested Malvo knew exactly what he was doing all along. Furthermore, Malvo's taped confessions to police shortly after his arrest were hard to overcome, legal experts said.

"Here, not only do you have him saying, 'Yes, I did it,' but you have those confessions which verged on bragging and were cavalier," said Michael Greenberger, a University of Maryland law professor. "The attempt to get out of that was his psychiatrists' word against the government, and he did not portray himself as a person who the jury would want to believe."

Virginia standards

To win an insanity acquittal in Virginia, defendants must show that their mental disease made it impossible for them to know the nature, character and consequences of their act, that they were unable to distinguish right from wrong, or that they were unable to resist the impulse to commit a crime.

"There are defense attorneys in Virginia that can go their entire career without ever trying an insanity defense case," said Greenspun, Muhammad's lawyer. He noted that's for good reason: "The public thinks if you're found not guilty by reason of insanity, you walk out on the street the next day."

So while Malvo's lawyers might never have expected to win an insanity acquittal, the tactic at least allowed them to make the trial as much about the life of their client as it was about the death of FBI analyst Linda Franklin.

"It expanded the playing field of what they could present," said Millemann, of the University of Maryland. "I think that they really got a broader scope of evidence in during the guilt-innocence phase than they normally would have in the sentencing phase."

Mitigation evidence

That fact did not go unnoticed during the trial. Lead prosecutor Robert F. Horan Jr. objected during the testimony of defense social worker Carmeta V. Albarus, saying her testimony about Malvo's troubled mind was evidence that should be left to the trial's sentencing phase.

'That might be fine for the mitigation case," Horan said. "We're here for insanity at the time of he act. They're trying to use mitigation evidence for an insanity issue."

One of the nation's most widely respected capital defense lawyers, Kevin McNally, said the jury's rejection of the insanity defense does not mean that jurors won't be willing to consider some of the same evidence - that Malvo was so young, for instance, or that he was under the control of Muhammad - in weighing his sentence.

"The fact that a lot of the mitigation was front-loaded doesn't mean it was rejected, and it doesn't mean it needs to be repeated," said McNally, of Frankfort, Ky.

Peter Greenspun, Muhammad's lawyer, saw the insanity defense failure in another light.

"If we are a society that is going to be so inhuman as to lock away those who are ill, if that's where our society is, then there's a lot of rethinking that needs to be done," he said.