- The Washington Times - Monday, December 22, 2003

For 12 Chesapeake residents, the holiday season will be haunted by the specter of convicted sniper Lee Boyd Malvo and by the responsibility of sentencing him to death or life in prison.

Today is the last day until court adjourns for the holiday, and the immediacy of Christmas will make a death sentence for the 18-year-old less likely, legal experts said.

It is bad timing for the jurors who must make a decision today or face a five-day layoff.

But for the defense, the timing could help them avoid a death sentence for their client, legal experts said.

“I’ve never had a capital case tried in the holiday season,” said Warren Von Schuch, deputy Commonwealth’s attorney for Chesterfield County. “We try to avoid it with every aspect of our being…. It’s scary.”

Mr. Von Schuch is one of the most experienced and successful prosecutors in the state. In 25 capital-murder cases, he has sent 16 defendants to death row, but is two for five in such cases against Malvo’s attorney, Craig S. Cooley.

“Certainly, if it’s Christmastime and it’s the holiday season and you’ve got an 18-year old and you’re going to hear a lot of testimony about brainwashing, maybe you don’t want to try that case at this time of the year,” Mr. Von Schuch said. “Maybe when the cold, cruel winds of January set in is a better time to hear that case.”

The question of whether to sentence Malvo to death or life in prison already is difficult because of the defendant’s age and because he was influenced by the convicted mastermind of the sniper shootings, John Allen Muhammad, 42, who was sentenced to death by a Virginia Beach jury last month.

Malvo, who turns 19 in February, was 17 during the October shootings last year. His attorneys argued that Malvo was not guilty by reason of insanity and was so indoctrinated by Muhammad that he did not know right from wrong.

The jury of eight women and four men did not believe that Malvo had been insane at the time, despite two weeks of testimony about his difficult upbringing and the indoctrination by Muhammad. In 13 hours of deliberations over two days, they agonized about whether Malvo’s crimes included elements of “malice” needed for a capital-murder conviction.

They decided that Malvo’s mind had been “under the control of reason” and not under Muhammad’s control and found him guilty of capital murder.

Still, Malvo has “a decent chance at life in prison,” said Christopher J. Collins, a defense attorney from Richmond who has tried more than 80 capital-murder cases. The timing of the case only helps Malvo’s cause, Mr. Collins said. He also acknowledged that he has “plotted” to schedule such cases during the Christmas season.

“You can’t help but think [that jurors] are going to be a little more tolerant and charitable come the holiday season,” he said. “If they’re split on death, they might just say, ‘We’re not going to sit here and argue for a week, let’s just give him life in prison.’ Or so you hope.”

Mr. Collins defended a man eligible for the death penalty after being convicted of murder in the early 1990s. The case was tried during the holidays, and the man received life in prison.

“I’ve tried to schedule a trial around this time of the year in the hopes that people will be more charitable,” said Joseph Bowman, an attorney with 20 years of capital-defense experience in Northern Virginia. “But you just don’t know. It’s all very subjective. But I still tried it. What can you lose? It’s not like they’re going to be more hostile, unless they’ve been shopping.”

In 2000, Mr. Bowman represented 26-year-old Christopher Thomas, who was charged with capital murder in the death of a fellow inmate at the Lorton Correctional Center.

Thomas was tried around Thanksgiving, but in early December, the jury returned a verdict of second-degree murder, which prevented the death penalty.

Prosecutor Robert F. Horan Jr., the Fairfax County commonwealth’s attorney, also knows about the effect that holidays have on murder cases.

In October, he unsuccessfully tried to have Malvo’s trial rescheduled, saying he needed more time to prepare for Mr. Cooley’s insanity defense plea. The move also would have run the trial straight through Christmas, which could have prompted Fairfax Circuit Judge Jane Marum Roush to postpone the trial until January.

Mr. Von Schuch said the toughest part of trying a case around Christmas for prosecutors is the unpredictability.

“If you are having to deal with emotional issues such as Christmas or Christmas music playing in the courthouse and lights up, you just don’t know what impact that is, whether they’re in a forgiving mood or whether they think there should be sufficient punishment,” he said.

“You don’t know whether they go around and see the Christmas lights and identify with the victim’s family. It may cause them to want to impose the death penalty.”

Professional jury consultant Jeffrey Frederick says the defense usually has the advantage during a holiday-season trial.

“But you also have to remember the government is going to be stressing the victims and what it’s going to be like over these holidays for their families,” he said.

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