- The Washington Times - Friday, July 25, 2003

Details have emerged that prosecutors say will make it more difficult for defense attorneys to argue that sniper suspect Lee Boyd Malvo was “under the spell” of John Allen Muhammad, his older companion.

But defense attorneys said the information that was revealed this week fits right into their “under the spell” theory.

“It was painful but necessary to find out those details,” said defense attorney Craig S. Cooley.

Defense attorneys will argue that Mr. Malvo, who was 17 at the time of the shootings in the fall, was brainwashed and manipulated into committing the crimes by 42-year-old Muhammad.

“I’m not certain a jury in the world is going to believe that,” said Fairfax Commonwealth’s attorney Robert F. Horan Jr. He said that testimony Thursday from federal prison guards bolstered his argument.

The guards revealed specifics about who Mr. Malvo said he shot and what his mind-set was during the shooting spree. Additionally, Mr. Horan said testimony from Washington state witnesses is not evidence of “brainwashing,” as the defense says.

But Mr. Cooley said the testimony of the prison guards did not hurt the spell theory because Mr. Malvo and Mr. Muhammad had been apart for only two days.

“That type of indoctrination isn’t the kind of thing that goes away immediately. This kid was under his influence for 21/2 years.”

Prison guards Capt. Joseph Stracke and Cpl. Wayne Davis testified Thursday at a pretrial hearing that Mr. Malvo had talked to them about the shootings at length Oct. 26, when he was brought to the SuperMax prison in Baltimore. Defense attorneys are trying to suppress the guards’ testimony, and Fairfax Circuit Court Judge Jane Maroum Roush said she will rule on the matter next month.

Judge Roush allowed into evidence statements Mr. Malvo made to a Fairfax detective Nov. 7. The detective said Mr. Malvo calmly confessed to several of the shootings, even laughing at times.

The guards told a stunned courtroom that Mr. Malvo had boasted that he shot a 13-year-old boy to upset authorities and show them “he meant business.” He also told them he had planned to shoot a busload of students at Benjamin Tasker Middle School in Bowie but that the bus “pulled in wrong.”

The two suspects have been linked to the 13 random shootings, 10 of them fatal, in the Washington area in the fall. Mr. Malvo has taken responsibility for at least six of those shootings, authorities say.

Authorities said Mr. Malvo was particularly proud of shooting Linda Franklin, 47, at a Falls Church Home Depot on Oct. 14 because, he said, he had to shoot between two pillars. Mr. Muhammad is charged in the shooting Oct. 9 of Dean Harold Meyers, 53, of Manassas.

Mr. Malvo’s trial Nov. 10 in the shooting of Mrs. Franklin has been moved from Fairfax to Chesapeake City, Va. Mr. Muhammad’s trial Oct. 14 in the shooting of Mr. Meyers has been moved from Prince William County to Virginia Beach.

Throughout the case, the defense has said authorities violated Mr. Malvo’s rights by questioning him without his attorneys present and without reading him his rights.

Cpl. Davis said he asked Mr. Malvo whether he was brainwashed or Mr. Muhammad sexually abused him. Mr. Malvo said no to both questions, according to the guard.

Mr. Horan said testimony of the guards proved that Mr. Malvo acted of his own volition. “People don’t brag about killing unless they’re fairly satisfied with what they did,” he said. “He was under no pressure to say anything when he was in the jail. He wasn’t being questioned. Nobody was trying to draw anything out of him.”

Mr. Cooley has charged that the prosecution withheld 23 pages of evidence and a letter written by Mr. Malvo to a “confidant” that they should have turned over as exculpatory. None of these documents has been made public, but the testimony is from witnesses in Washington, who Mr. Cooley said talked about Mr. Muhammad’s brainwashing of Mr. Malvo. The letter details Mr. Malvo’s feelings of neglect by his parents.

Mr. Horan said the witness testimony has occasional sentences that mention Mr. Malvo’s obedience to Mr. Muhammad and that the defense was blowing it out of proportion.

He said he did not have the letter until the defense received it.

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