- The Washington Times - Sunday, December 7, 2003

CHESAPEAKE, Va. — Attorneys for sniper suspect Lee Boyd Malvo likely will decide today whether to put their 18-year-old client on the witness stand to hammer home their insanity defense as the capital-murder trial enters its fifth week.

“There are enormous risks to calling your client no matter what the charges,” Abbe Smith, a professor at Georgetown University Law Center, said yesterday. “If I thought I was losing this case, then I would call him. I’d have nothing to lose.”

Ms. Smith said putting Mr. Malvo on the stand to humanize him or demonstrate his youthfulness and likable personality to the jury could backfire during cross-examination.

“He is a very young man, and that cuts both ways,” she said. “He could appear sympathetic … or he could not be a very good talker.”

She also warned that the prosecution could demonize Mr. Malvo further by questioning him extensively about his audio-recorded confessions in which he giggled and laughed while recounting some of the murders.

“The worst evidence against him, beside the terrible stories of the family members of those who died, were his own statements,” Ms. Smith said.

Ultimately, the defense must decide whether the prosecution has put forward enough evidence to refute the inanity defense and whether Mr. Malvo’s testimony would be so compelling as to outweigh the risks.

The decision will come with about three days remaining in the defense case and after what appeared to be a series of setbacks for the defense team.

The setbacks included a ruling by Fairfax County Circuit Judge Jane Marum Roush preventing the jury from seeing a letter the defendant wrote a couple of months before the sniper attacks. The letter purportedly asks for help to escape the control of convicted sniper John Allen Muhammad. The judge also advised defense attorneys that she opposed their plan to have Muhammad, 42, appear at the trial.

Muhammad invoked his Fifth Amendment right not to testify, but the defense still wants him to appear in court to show the difference between the tall, muscular Muhammad and the scrawny defendant. They also want the jury to see an interaction between the men, even if it is only facial expressions and eye contact.

The defense team is trying to convince the jury that Mr. Malvo is not guilty by reason of insanity because he was indoctrinated into Muhammad’s “extreme brand of Islam” and was under Muhammad’s complete control during the assassination-style slayings of October 2002 that left 10 dead and three wounded in the Washington area.

Defense attorneys say Muhammad convinced Mr. Malvo that the sniper attacks were part of a social war. The $10 million ransom to stop the killings would have financed a utopian commune in Canada that would be the staging ground for a revolution to overthrow the “racist system” governing the world.

The defense’s case further has been stymied because prosecutors have stopped testimony about Mr. Malvo’s state of mind during his difficult childhood in Jamaica and his two years as Muhammad’s “adopted” son.

Craig S. Cooley, a lead attorney on Mr. Malvo’s defense team, said last week that no single piece of evidence would make or break the case but that he had not given up on presenting the letter or Muhammad to the jury. A motion to summons Muhammad also could come today or tomorrow, he said.

Mr. Cooley last week also said the decision to put Mr. Malvo on the witness stand would be made today, and the ruling to suppress the letter “has no bearing on our decision.”

Since then, Judge Roush has issued a gag order preventing all attorneys in the trial from speaking to reporters.

The trial will resume today with testimony by Dewey Cornell, a clinical psychologist specializing in homicide by juveniles.

Dr. Cornell, a court-appointed mental health expert for the defense, is expected to testify that Muhammad brainwashed Mr. Malvo, rendering him unable to distinguish between right and wrong, which is consistent with the legal definition of insanity.

The defense has said that Dr. Cornell’s testimony will include a 12-minute clip from the film “The Matrix” and footage from violent video games. Mr. Malvo’s attorneys have said Muhammad used the movie to help brainwash their client and the simulated military combat of the video games to desensitize him to killing people.

Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. likely will object to showing excerpts from the movie and video games.

Cormeta Albarus, a forensic social worker, testified Thursday that Mr. Malvo identified with the movie because the plot paralleled that of the sniper attacks — to spur a worldwide revolution.

Mrs. Albarus said the defendant appeared to identify with the character Neo, who was destined to overthrow a robot society that had subjugated the human race. She said Mr. Malvo seemed to identify Muhammad with Morpheus, Neo’s mentor and trainer.

Similar to the film’s revolutionary struggle, Mr. Malvo thought his actions would help create the utopian commune in which 70 boys and 70 girls of different races and ethnicity would be trained as “super-children” and sent out to reform the world, Mrs. Albarus said.

“He felt very confident that this could be done,” she said.

Mr. Malvo faces the death penalty on two counts of capital murder in the Oct. 14, 2002, fatal shooting of FBI analyst Linda Franklin, 47, outside a Home Deport store in Falls Church. One count is under Virginia’s new antiterrorism law and the other under a serial-killer law. He also is charged with using a firearm in commission of a felony.

A Virginia Beach jury on Nov. 24 recommended a death sentence for Muhammad after convicting him on identical murder and gun charges for the Oct. 9, 2002, slaying of Dean Harold Meyers, 53, at a Manassas gas station. Muhammad also was convicted of conspiracy.

Prince William County Circuit Judge Leroy F. Millette Jr. will formally sentence Muhammad on Feb. 12.

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