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Teenager's sanity will be focus of second sniper trial

By Kevin Drew

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Attorneys for teen sniper shootings defendant Lee Boyd Malvo will employ an insanity defense strategy. CNN's Patty Davis reports (November 17)
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(CNN) -- Although a verdict on the guilt or innocence of sniper shootings defendant Lee Boyd Malvo is likely weeks away, a sentencing option for jurors already has shaped the course of the trial and renewed debate about executing juvenile offenders, legal analysts say.

The possibility of a death sentence if a guilty verdict is returned against Malvo has determined the composition of the jury that will judge the 18-year-old, and led to the insanity defense strategy that his attorneys will employ and prosecutors will argue against, experts add.

As a result, the trial of Malvo -- testimony began Monday -- will not focus on whether he shot and killed off-duty FBI agent Linda Franklin, but will examine the teenager's sanity at the time of the shooting.

Legal analysts also say the Malvo trial is not so much about the defendant's alleged role in last year's sniper shootings as it is about an appropriate sentence. Potential jurors last week were automatically disqualified if they had opinions on two issues: Malvo's guilt or innocence, and whether or not convicted murderers who were juveniles at the time of the crime should be eligible for the death penalty.

"We can't judge on a strict timeline. He (Malvo) was almost 18 when the shootings took place. Some people are more mature at 16 or 17 years of age than others in their 20s," said Sue Blake, public policy director of the Sacramento, California-based Criminal Justice Legal Foundation, an organization that supports the death penalty.

"There's no more fundamentally acknowledged legal norm than barring the execution of children," said attorney Walter Long, who represents Christopher Simmons, a Missouri inmate convicted of killing a woman when he was 17 and who had his death sentence overturned by the Missouri Supreme Court in August.

The trial is taking place more than a year after the sniper shootings that killed 10 people and wounded three in the Washington, D.C., area in what prosecutors allege was a plot to extort $10 million from the government.

Malvo is accused of being the gunman in the October 14, 2002, shooting death of Franklin at a store parking lot in Falls Church, Virginia. He is charged with killing Franklin in the commission of an act of terrorism, the killing of more than one person in a three-year period and unlawful use of a firearm during the crime.

Although most of the deaths attributed to the sniper shootings occurred in Maryland, U.S. Attorney General John Ashcroft moved the trial to Virginia, a move intended to allow local prosecutors to seek the death penalty if they obtain a conviction. Virginia and 20 other states allow the execution of convicted murderers who committed the crime when they were either 16 or 17 years old, depending on the state.

"Virginia and Texas are the two places in the world where juveniles are most likely to be sentenced to death, and where death sentences will be carried out," said Steven Drizin, clinical director of Northwestern University's Bluhm Legal Clinic. Virginia has executed three juvenile murderers since the death penalty was reinstated in 1976.

Trial will examine Malvo's relationship with alleged accomplice

The relationship between Malvo and John Allen Muhammad -- the alleged accomplice who was convicted Monday of one of the sniper slayings -- likely will take up much of the testimony in the teenager's trial.

In opening statements, prosecutors said last week that Malvo and Muhammad acted as a team that was responsible for 10 dead and three wounded in the shootings around the D.C. suburbs in October of last year. Prosecutors said Malvo was the one who fired the shots in the Franklin slaying and Muhammad was the spotter. (Full story)

Malvo's attorneys countered by saying Muhammad exerted heavy influence over Malvo from the moment they first met, when the boy was 15 years old. They also argued that police interrogation tactics could be more intimidating to a youth than an adult.

"He's very young. He is, frankly, in terms of maturity, probably about two years behind his age," defense attorney Craig Cooley told jurors.

Defense attorneys are expected to present a number of mental health experts to tell the jury how Muhammad's strong personality effectively acted like a spell over the teenager.

Prosecutors are expected to stress to jurors that Malvo knew what he was doing when he allegedly fired the deadly shots, and that the insanity argument is simply a strategy to avoid punishment. They are expected to present their own psychologists to counter defense arguments.

start quoteJuries often don't buy the idea that someone can't distinguish right from wrong.end quote
-- Steven Drizin, Bluhm Legal Clinic

The prosecution's case against Malvo is strong: Malvo's fingerprints were on a Bushmaster rifle that fired the shots that killed Franklin and seven other sniper victims. The murder weapon was found in the car that Malvo and Muhammad were in when they were arrested.

Additionally, Malvo admitted to several of the shootings in interviews with police and prison guards. The judge overseeing the case ruled that much of that confession may be admitted into evidence. (Full story)

Virginia law requires the defense to prove that the alleged indoctrination amounted to a "mental disease or defect" that left Malvo unable to distinguish right from wrong or made him unable to control his actions. That will be difficult to prove. In 1976, publishing heiress Patty Hearst's lawyers unsuccessfully tried it, saying she had been brainwashed by her Symbionese Liberation Army captors.

The insanity defense also will allow Malvo's attorneys to counter the prosecution's witnesses and evidence, presenting its own issues of Malvo's mental health and brainwashing, Drizin said.

Those are subjects the defense could not otherwise mention until the sentencing phase that follows a capital murder conviction. In effect, the insanity strategy could allow Malvo's lawyers to present their indoctrination defense twice.

Degrees of responsibility, psychologist says

Research shows that adolescents are more likely to be vulnerable to pressure from others than adults, said Laurence Steinberg, professor of psychology at Temple University. An expert on adolescence and the juvenile justice system, Steinberg said research shows that the pre`frontal cortex, part of the brain that controls impulsive behavior and rational thought, isn't fully developed until a person is well into their 20s.

Additionally, studies show that the presence of a parent is vital to a child's social and intellectual development, said Dr. Mark Welleck, a specialist in adolescent psychiatry. Malvo was without a father for much of his childhood, and was without his mother beginning at age 15.

"What parenting really provides is it helps kids develop their minds," Welleck said. "It is a way a child learns what can and can't be done." A parentless child will look elsewhere for guidance, said Welleck, past president of the American Society for Adolescent Psychiatry.

"I would bet if they do scan on the kid, it will show an undeveloped prefrontal cortex."

The Malvo case, however, should not be judged in a purely guilty or innocent light, Steinberg said. If jurors find Malvo played the role in the sniper attacks that prosecutors allege, they should assess the degree of responsibility, Steinberg said.

"Whether or not you can generalize from the pressure argument, that will be difficult," he said.

Insanity defenses are usually a tough argument for defense attorneys to make, Drizin said. "Juries often don't buy the idea that someone can't distinguish right from wrong."

Still, American juries have historically been reluctant to hand down a death sentence to an offender who was a juvenile at the time of the crime, Drizin said.

Even if Malvo's attorneys are successful, their client would not necessarily be set free.

If Malvo is found guilty of any charge less than capital murder, Fairfax County Circuit Court Judge Jane Marum Roush would release the jury and she would determine the sentence.

If Malvo is found not guilty by reason of insanity, he would be committed to a maximum-security state mental hospital, where he would stay until his condition improved and he was no longer considered a danger to society. Such confinements tend to run as long as prison sentences.

And if jurors find Malvo guilty of capital murder, they must hear evidence to determine a sentence. Prosecutors have not formally said they would seek the death penalty.

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