- The Washington Times - Monday, December 22, 2003

CHESAPEAKE, Va. — Jurors began deliberating yesterday whether to recommend life in prison without parole or death for Lee Boyd Malvo, convicted by the same jury for the random killing of Linda Franklin in last year’s sniper attacks.

The jurors met for three hours yesterday without reaching a decision. They were to reconvene today at 9 a.m. Should they fail again to agree on a recommendation to the judge, they would have to return after Christmas.

The jurors last week convicted Malvo of shooting Mrs. Franklin, 47, in the head in the parking lot of the Home Depot in Falls Church on Oct. 14, 2002.

Mrs. Franklin was one of 10 persons killed during a three-week shooting spree last fall. Malvo, 18, and accomplice John Allen Muhammad, 42, used a Bushmaster rifle to shoot from the trunk of a 1990 Chevy Caprice in a purported scheme to extort $10 million from the government.

“Killing at random — most of us can’t even think of how a person could do that,” Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. told the jury in his closing arguments yesterday.

Muhammad, whom Malvo’s lawyers portrayed as the mastermind in the scheme, was sentenced in a separate trial last month to die for the killing of Dean Harold Meyers, 53, outside a Manassas gas station.

Malvo was convicted on all three counts against him last week: premeditated murder in the commission of an act of terrorism, premeditated murder of more than one person within a three-year period and use of a firearm during a murder.

In deciding whether Malvo should join Muhammad on death row, jurors will have to decide whether they believe the portrait of Malvo drawn by prosecutors or the one by defense attorneys.

Defense attorney Craig S. Cooley acknowledged that Malvo’s crimes were vile, but insisted that Malvo was not.

“The acts are despicable; the child is not,” said Mr. Cooley, who repeatedly referred to Malvo as “the child” during his closing statement. Malvo was 17 at the time of the shootings.

“The acts are beyond redemption; the child is not,” Mr. Cooley said.

He told jurors that Malvo had a difficult upbringing — abandoned by his mother, moved around frequently as a child and in desperate need of a father figure when, at age 15, he met Muhammad.

Mr. Cooley also told the jurors that Malvo should not be put to death because adolescent brains have not completely matured.

“The frontal lobe of the juvenile brain is not fully developed,” Mr. Cooley explained. “It is the CEO of the brain. It’s the part of the brain that gives us our judgment.”

The defense attorney finished his closing argument by telling jurors that in ancient times, jurors personally administered the punishment by picking up rocks and stoning the convict. Mr. Cooley picked up a stone about the size of his hand and showed it to jurors.

“After you cast it,” he said, “you can feel the grit of the stone and you know you have thrown it.”

The prosecutor, Mr. Horan, scoffed at the defense’s argument that Malvo was just an impressionable child who fell under Muhammad’s spell. He said Malvo stopped being a child when he began killing people.

He told jurors they must recommend the death penalty because Malvo is a future threat and that his crimes were “outrageously vile” — conditions necessary to justify the death penalty.

Mr. Horan spoke to jurors while showing them graphic images of the victims.

He occasionally paused to play audiotape snippets of Malvo’s conversations with police investigators after his arrest.

When Mr. Horan showed a picture of Mrs. Franklin sprawled dead with a gunshot wound in her head, jurors also heard a tape of Malvo telling police: “If you’re going to do it, be good at it. Don’t be sloppy.”

Jurors later heard a tape of Malvo explaining his decision to kill Mrs. Franklin rather than her husband, who was standing nearby.

“You could kill the husband, but you don’t get the effect you want,” Malvo said on the tape.

Mr. Horan said Malvo’s own words proved he lacked remorse and that he deserves to die.

“You hear about his sobbing and crying,” Mr. Horan said. “He’s crying for him. He’s not crying for the people he killed.”

He also said Malvo was “the sniper” in the three-week shooting spree in the Washington area in which 10 persons were killed and three wounded, even if Muhammad had been the masterminded.

“You can think about John Muhammad all you want, and maybe it was his plan; maybe it was his idea,” Mr. Horan said. “But the evidence stamps this defendant.”

Before closing arguments yesterday, jurors heard from three defense witnesses, including Malvo’s father, Leslie Malvo, who cried as he spoke about his son’s early years.

“Lee wanted to be a pilot,” said Leslie Malvo, who lived with his son in Jamaica until they boy’s mother, Ana James, moved away and took him with her.

“We used to sit in the back of the house when the planes were coming down,” Leslie Malvo said. “He liked that very much.”

Prosecutors unsuccessfully sought to bar Leslie Malvo’s testimony, arguing that the father’s recollections would add nothing since he already had testified during the guilt phase of the trail.

“He sat on the witness stand and cried and sobbed for 20 minutes about the precious son he hasn’t seen in 10 years,” Mr. Horan said.

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