- The Washington Times - Tuesday, December 16, 2003

If sniper suspect Lee Boyd Malvo is found not guilty by reason of insanity, it would set off a scramble by several jurisdictions within Virginia and beyond that want to try him next — and could set up barriers for him ever being sentenced to death in succeeding trials.

Jurors began deliberations yesterday after a five-week trial. If they find Mr. Malvo guilty of capital murder or first-degree murder, the trial will continue into a penalty phase.

But Mr. Malvo’s defense team, led by Richmond attorney Craig S. Cooley, has argued persuasively that their client is not guilty by reason of insanity, legal observers following the trial said. According to the defense team’s theory, Mr. Malvo, 18, was so severely indoctrinated by the convicted mastermind of the sniper shootings, 42-year old John Allen Muhammad, that he did not know the difference between right and wrong.

Prosecutors and defense attorneys admit that a verdict of not guilty by reason of insanity is a long shot.

“It would be shocking. Bigger than O.J. The biggest ever,” said Learned Barry, deputy commonwealth’s attorney in Richmond. Muhammad and Mr. Malvo have been linked to the 13 sniper shootings that left 10 dead and three wounded in the Washington area in October 2002. They have also been tied to nine other shootings in five states before that.

Muhammad was sentenced to death last month by a Virginia Beach jury for the death of Dean Harold Meyers at a Prince William County gas station, but the younger defendant seems to have a better chance of avoiding that fate in the death of Linda Franklin at a Home Depot in Fairfax County.

“That we’re discussing [a not guilty verdict] at all shows that Craig Cooley did a good job representing his client,” said lawyer Joseph Bowman, who has 20 years of experience defending capital cases in Northern Virginia.

“Cooley put together a stellar panel of experts. Neil Blumberg, in particular, is the best forensic psychiatrist out there, and he is particularly skilled at educating lawyers and juries on insanity and mental incompetence. This trial was all about educating and communicating with the jury. Cooley did everything he could to educate and communicate,” Mr. Bowman said.

“You have to be a little amazed,” Mr. Barry said. “Everybody thought this was going to be a slam dunk and [Mr. Cooley’s] taking the worst part of the case and using it to his benefit. The worse the kid is, the more Cooley says, ‘See I told you, this is not normal unless you’ve been brainwashed.’”

The jury could find Mr. Malvo guilty only of second-degree murder, which carries a sentence of five to 40 years in prison. But most observers still believe a guilty verdict is most likely, and that real battle is over whether Mr. Malvo will be sentenced to death or life in prison.

Others with an interest in the case say the idea of anything other than a guilty verdict is ridiculous.

“I can tell you the chance that that verdict’s going to be not guilty. There’s two chances: none and none,” said John Sinquefield, a district attorney in Baton Rouge, La. He is one of several prosecutors in line to prosecute both Muhammad and Mr. Malvo. Hong Im Ballenger, a 45-year old wife and mother, was shot and killed next to her sport utility vehicle outside a Baton Rouge beauty products store on Sept. 23, 2002.

If the jury finds Mr. Malvo not guilty by reason of insanity, he would be transferred to Virginia’s Central State Hospital, where mental incompetents are kept and examined, for what would likely be a short stay. The fight to try the young man next would then begin, and Virginia Gov. Mark Warner would determine where Mr. Malvo goes next.

The governor’s spokeswoman said Mr. Warner had no comment at this time.

Prosecutors in Montgomery County, Md., Montgomery, Ala., and Baton Rouge have all said they would like to prosecute both Mr. Malvo and Muhammad next. But within Virginia, there are still killings both men could be tried for. Their trials could be flipped, with Mr. Malvo going to Prince William County and Muhammad going to Fairfax, and one or both of them could be tried in Spotsylvania County, where a father of seven from Philadelphia was shot on Oct. 11, 2002, at a Massaponax gas station.

Prosecutors in Pierce County, Wash., where Keenya Cook, 21, was shot and killed in Tacoma on Feb. 16, 2002, also could press charges against either Mr. Malvo or Muhammad. According to mental health experts who have testified in the younger man’s trial, Mr. Malvo told them he shot only one of the 13 Washington-area victims, but that he confessed to shooting Miss Cook as part of a test conducted by Muhammad.

Gerald A. Horne, Pierce County prosecuting attorney, said that is unlikely, however, because Miss Cook’s slaying would not be considered a capital offense and the death penalty could not be pursued. “We haven’t ruled anything out,” he said.

If Mr. Malvo is found not guilty in Chesapeake, whichever jurisdiction prosecutes him next would have a hard time obtaining a death penalty.

“The road map has been drawn for the defense,” Mr. Bowman said. “They will likely make the same case and, very likely, get the same results.”

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