As Malvo trial opens, Muhammad's case likely to loom large

'Damaging testimony' in Va. Beach may help defense in Chesapeake

By Andrea F. Siegel | Sun Staff

November 10, 2003

CHESAPEAKE, Va. -- Virginia prosecutors will open a second front today against the suspects in the Washington-area sniper attacks as they paint a picture of Jamaican-born teenager Lee Boyd Malvo as a chillingly unrepentant killer while his lawyers embark on an insanity defense to try to save him from possible execution.

The trial is scheduled to begin this morning with the last of the pretrial motions and Malvo's arraignment, a brief proceeding at which he is to plead not guilty. Jury selection will follow. Chesapeake officials are down to 179 of 210 potential jurors, and lawyers will pare that to 12 jurors and four alternates, probably by the end of the week.

The trial begins just over a year after the sniper shootings that killed 10 people and wounded three in the Washington area in what prosecutors allege was a plot to extort $10 million from the government.

More than 100 witnesses could be called to testify in a trial that is expected to last nine weeks.

Malvo's trial on charges of killing FBI analyst Linda Franklin on Oct. 14 last year in a Fairfax County parking lot will be a twist on the courtroom drama that has been under way for a month in neighboring Virginia Beach. John Allen Muhammad, 42, is on trial there in the fatal shooting of Dean H. Myers five days earlier at a gas station near Manassas, Va.

Malvo, who was 17 at the time of Franklin's death, is charged as an adult with two counts of capital murder, one alleging that he committed more than one murder in three years and the other under Virginia's untested anti-terrorism law.

"Malvo's case is easier in terms of the physical and the DNA evidence. Malvo's case is tougher in that he cooperated with the psychologist and psychiatrist, and he has the information to oppose the death penalty," said former prosecutor William C. Mulford II, now in private practice in Annapolis.

"There has been a lot of damaging testimony" against Malvo at the Muhammad trial, said Douglas L. Colbert, a University of Maryland law professor.

Although Chesapeake jurors can expect the same DNA evidence, fingerprints and witness accounts that Prince William prosecutors presented at Muhammad's trial to place Malvo at or near the shootings, they will also hear testimony that their Virginia Beach counterparts do not.

Fairfax County prosecutors will use Malvo's alleged confession to a Fairfax County detective and an FBI agent, said Commonwealth's Attorney Robert F. Horan Jr.

In it, Malvo boasted of killing Franklin, according to police testimony in a pretrial hearing.

Juries love confessions, lawyers say. "Eyewitness accounts can be wrong. But it's not often that the defendant's wrong when he says 'I shot' or 'I killed,'" Mulford said.

But Malvo's attorneys contend that nothing indicates Malvo killed Franklin, who died of a rifle shot to the head. Their client was so brainwashed by Muhammad, they say, that he lied and assumed credit for crimes he did not commit, in part to protect a man he called his father.

"It has been our position consistently that Lee is not the shooter. He got the side of the head wrong" in a statement to police, said Michael S. Arif, one of Malvo's lead defense attorneys.

Testimony from Franklin's husband, who had just changed places with her in a Home Depot parking lot to load a shelf into their car and was splattered with her blood, brought jurors to tears in Muhammad's trial. Police believe she was shot from about 160 feet.

An off-duty Fairfax County police officer told the jury in the Muhammad trial that she saw Malvo behind the wheel of a blue Chevrolet Caprice -- the car prosecutors say held a sniper's hideaway in its trunk -- on Interstate 66 a few miles from the shooting scene.

The Chesapeake jury will see photos from Franklin's shooting and eight others. Horan said he will present evidence and testimony in four more.

But early in the trial, the jurors will also hear the defense's perspective on the relationship between Malvo and Muhammad.

Craig S. Cooley, one of Malvo's lead defense attorneys, said the prosecutors in Muhammad's trial were putting on much of Malvo's defense, as they are seeking to prove to jurors that Muhammad was in control of Malvo's actions.

The insanity defense is "a very intelligent and strategic decision," said Steven D. Benjamin, a Richmond, Va., defense lawyer on the board of the National Association of Criminal Defense Lawyers.

It will allow the defense to counter the prosecution's witnesses and evidence early on, presenting its own issues of Malvo's mental health and brainwashing, he said.

Those are subjects the defense could not otherwise mention until the sentencing phase that follows a capital murder conviction -- and if Malvo is convicted, those issues will come up again. In effect, this could allow Malvo's lawyers to present their indoctrination defense twice.

A report to authorities on the Caribbean island of Antigua states that Malvo's mother left her son as collateral for Muhammad, who provided her with fake travel papers to the United States. She was to pay him once she arrived in the United States.

Several months after she left, Malvo was living with Muhammad. Malvo's lawyers contend that Muhammad brainwashed him.