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Anybody-But-Dean Campaign: Is it Working?; Malvo Sentencing Verdict Reached

Aired December 23, 2003 - 15:30   ET


ANNOUNCER: The quest for an antidote to Howard Dean fever: how far will members of his own party go to try to stop him?

SEN. JOHN KERRY (D-MA), DEMOCRATIC PRESIDENTIAL CANDIDATE: So it looks like Howard Dean is trying to having it both ways.

SEN. JOSEPH LIEBERMAN (D-CT), DEMOCRATIC PRESIDENTIAL CANDIDATE: There's been a clarification of differences, and none are clearer than between Howard Dean and me.

ANNOUNCER: The Hollywood Insider: we've got the party circuit buzz on the Democratic presidential race.

President Bush by the numbers: a yearend look at the economic stats that could make or break is reelection.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: We have laid the foundation for greater prosperity and more jobs across America.



JUDY WOODRUFF, HOST: Thank you for joining us.

So much for holiday cheer in the Democratic presidential race. In New Hampshire today, Joe Lieberman tore into Howard Dean for calling the centrist Democratic Leadership Council "the Republican part of the party." Lieberman says the remark is offensive and divisive and doesn't sound like a joke, as the Dean camp has described it. It is the latest salvo in an increasingly bitter battle by some Democrats to nominate anyone but Dean.

Here now, our senior political analyst, Bill Schneider.


WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST (voice-over): Howard Dean is mounting a full-throated challenge to the Democratic Party establishment. Nothing stops him, not even the capture of Saddam Hussein, which was widely seen as discrediting Dean's anti-war cause. The latest "Washington Post"-ABC News poll shows Dean's support going from 17 percent in October to 20 percent last week to 31 percent this week. No other Democrat is in double digits. The same poll shows President Bush leading Dean by nearly 20 points.

To many Democratic insiders, Dean looks like a disaster waiting to happen. Why isn't the Democratic establishment fighting back? Maybe they are. Other Democratic candidates are getting tough with Dean.

LIEBERMAN: This man would take us back to where the Democratic Party was before Bill Clinton. Weak on security, big tax, big spend, and against trade.

SCHNEIDER: But they don't seem to be getting anywhere. Dean's army marches on, shrugging off the effort to discredit their candidate as politics as usual. A key establishment figure, Al Gore, has embraced Dean. Like many party leaders, Gore is enraptured by Dean's Internet army. Maybe he can win, they say, by bringing out a huge anti-establishment vote.

AL GORE, FMR. VICE PRESIDENT OF THE UNITED STATES: Howard Dean really is the only candidate who has been able to inspire at the grassroots level all over this country the kind of passion and enthusiasm for democracy and change and transformation of America that we need in this country.

SCHNEIDER: The Democratic establishment lacks the will to stand up for its beliefs, conservative columnist David Brooks writes in "The New York Times." Brooks likens it to the challenge mounted by John McCain to the Republican establishment in 2000. The GOP establishment squashed McCain like a bug.

Will the Democrats do the same for Dean? Unlikely, for a simple reason. McCain challenged the conservative ascendancy over the Republican Party. Conservatives fought back in the name of protecting the party's values. But Dean is fighting the Democratic Party establishment in the name of protecting the party's core values.

HOWARD DEAN (D), DEMOCRATIC PRESIDENTIAL CANDIDATE: We have to have the value of the Democratic Party. But in Washington, the culture is, say whatever it takes to get elected.

SCHNEIDER: In the end, Dean's positions, anti-war, anti-Bush, are what most rank and file Democrats believe.


SCHNEIDER: It's the Washington party establishment that sold us out, Dean says, possibly including the Clintons. For no other reason than to get elected. How contemptible -- Judy.

WOODRUFF: All right. Well, Bill, you've been talking about the Democratic establishment in Washington. But what about the powerful Hollywood block of the Democratic Party? You're out in Los Angeles. What are you sensing about that? SCHNEIDER: Well, I have been to Hollywood events out here, and people will come up to me and they'll ask me questions, "Do you think it could be Howard Dean?" And many of them are not happy at that prospect. In one word, "grumbling" is what I hear.

What are they concerned about? Well, number one, he can't win. Number two, he's criticized the Clintons. And many of the people here in Hollywood are Clinton loyalists. They're also concerned that he may not be reliable on Israel, an issue that a lot of people here care about.

And finally, and perhaps most important, they don't have any ties to him. When he takes on the Democratic Party establishment, that's not just Washington. That's also Hollywood -- Judy.

WOODRUFF: All right. That's for sure. All right. Bill Schneider, thank you very much, from the West Coast today.

Well, our "Campaign News Daily" has a new poll gauging Howard Dean support among Michigan voters. A little good news for him there. The survey spotlights potential problems, though, for Dean in the general election. But his rivals don't fare so well either.

A one-on-one match-up between President Bush and an unnamed Democrat results in a tie in the EPIC-MRA Survey. But a one-on-one between Mr. Bush and Howard Dean gives the president a seven-point lead. The same poll also gives Mr. Bush a 10-point lead over John Kerry and a 13-point edge over Joe Lieberman.

If consumer advocate Ralph Nader runs for president in '04, it won't be as a member of the Green Party. A Green Party official telling CNN that Nader has decided not to run as a Green Party candidate. But that he is still thinking about running as an Independent.

Actor Danny Glover is putting his talents to work for Democratic hopeful Dennis Kucinich. Glover narrates a new set of TV ads for Kucinich scheduled to begin airing in early January. An ad already posted on the Kucinich Web site focuses on the war in Iraq.


DANNY GLOVER, ACTOR (voice-over): Listen up young America. The preemptive war continues to drive our foreign policy. If our volunteer troops are stretched thinner and thinner, you could be facing compulsory draft. All young Americans deserve to face a world without end, not a war without end. Kucinich for president. The eyes that see through the lies.

REP. DENNIS KUCINICH (D-OH), DEMOCRATIC PRESIDENTIAL CANDIDATE: I'm Dennis Kucinich and I'm running for president. Do I approve of this commercial? You bet.


WOODRUFF: Well, for its part, the Bush administration today is applauding a new third quarter economic report which shows the strongest growth in nearly 20 years. In the government's final estimate, the Gross Domestic Product surged at an annual rate of 8.2 percent from July through September. U.S. Commerce secretary, Don Evans, issued a statement saying "President Bush's pro-growth policies are clearly unleashing our economic potential. Despite the positive signs, the president will not rest until every American seeking work can find a job."

Our senior White house correspondent, John King, has more now on economic figures and how they add up for the Bush campaign.


JOHN KING, CNN SR. WHITE HOUSE CORRESPONDENT (voice-over): For a president seeking reelection, the numbers that tend to matter most are looking up.

BILL MCINTURFF, GOP POLLSTER: American presidents are reelected when the economy is strong. When the economy is weak, we toss them out of office.

KING: So the unemployment rate is a leading indicator of both economic and political strength. It was 3.9 percent when Mr. Bush took office. Hit a high of 6.4 percent this past June, but fell to 5.9 percent last month.

GREGORY MANKIW, CHAIRMAN, WHITE HOUSE COUNCIL OF ECONOMIC ADVISERS: We'd like to see unemployment falling farther, we'd like to see more job gains. I think we'll see that over the next year.

KING: Still, the economy has lost roughly three million jobs during the Bush presidency, 2.5 million of those in the manufacturing sector.

JOHN PODESTA, FMR. CLINTON CHIEF OF STAFF: The greatest job loss is in critical states for the president: in the upper Midwest and Missouri, in places that are truly the swing states in this country. And the president really has no program to deal with it.

KING: But the trend line of late favors the president. The economy has added more than 300,000 jobs since July. And Wall Street is closing the year on an upswing.

The Dow Jones industrial average was 10,578 when Mr. Bush took office. It fell to a low of 7,286 in early October, 2002. But it's now back above 10,000. Mr. Bush says his big tax cuts are a big reason for the turnaround.

BUSH: We have laid the foundation for greater prosperity and more jobs across America.

KING: Democrats say the price was too high. The government was running a surplus when Mr. Bush took office, but has a record deficit now. Yet Democrats also concede the economy is looking up as at an opportune time for Mr. Bush. PETER HART, DEMOCRATIC POLLSTER: The one thing you have to say about President Bush is he's not going to face the same negative feelings about the economy that his father faced 12 years ago.

KING (on camera): In fact, the new administration forecast due out next month predicts relatively strong economic growth and a steady drop in unemployment over the course of the next year, just as the president asks the voters for a second term.

John King, CNN, the White House.


WOODRUFF: All right. And back on the Howard Dean front, how badly are his own words coming back to haunt him? We'll talk with Dean campaign manager Joe Trippi and to two reporters covering Dean and his bloopers on the trail.

Also ahead, we will meet the man behind the meetup phenomenon that has rocked the '04 campaign and the political world.

And later, Governor Schwarzenegger's first test in a natural disaster.


WOODRUFF: We are learning at CNN that there is a verdict in the sentencing of John Lee Malvo (ph)s. That case gone to the jury after the jury convicted Malvo of murder in the Washington sniper cases. We are going to be determining in just the next few minutes when we will find out what the verdict is in the sentencing of John Lee Malvo (ph).

CNN working on that story right now.

Back to politics for a few minutes. Moderate Democrats may be thinking about candidate shopping, as well as holiday shopping. As we reported earlier, Howard Dean referred to the Democratic Leadership Council yesterday as "the Republican part of the Democratic Party." Well, today, DLC co-founder and CEO, Al Fromm, retorted that a Dean nomination is long way from becoming reality.

All right. My mistake. We are going to move on to -- from the DLC story on to our interview with the head of His name is Scott Heiferman. He has put together this organization.

Scott, how long ago, and did you ever believe that this quickly you would be such an enormous factor, your organization, in American politics?

SCOTT HEIFERMAN, MEETUP.COM: Well, we didn't design to be a part of politics at all. Meetup is the way in which people around the world organize gatherings about anything, anywhere. And it was launched just last year. And all of these political supporters started jumping on to it, and it's become a big deal.

WOODRUFF: So is that just a coincidence that the political people got on board? How did that happen?

HEIFERMAN: Well, you know -- so meetup is a system that can be used by people who -- you know, by poodle owners to meet up with other poodle owners, or people who share a health condition, single moms to meet up all around the world. So we weren't even thinking about politics. And it was initially the early Howard Dean supporters which saw -- you know, the campaign had no money, the campaign had no infrastructure. They needed to organize themselves locally everywhere, and so they saw as a great way to do it.

WOODRUFF: Well, let me ask you about -- there was a study done just recently by Bentley College, which shows that the Dean supporters are mostly -- and I'm reading from the description -- white, middle income professionals who use the Internet on a regular basis. My question is, is Howard Dean going to be able to expand beyond this pretty special group of people who have the money to go on the Internet and who have easy access to computers?

HEIFERMAN: Well, I've got to tell you, Judy, I'm no political expert here. All we do know is that we do know that a quarter million Americans have signed up for meet-ups about everything. You know, the fastest growing meet-ups in history right now are the conservative meet-ups of the Heritage Foundation, strangely enough.

And the -- you know, it's certainly not just a Dean story. And the people who are meeting up for Dean are definitely not young computer savvy people or they can't be labeled at all. The fact is, people tell their friends and coworkers and neighbors, and it may look a certain way right now, but it's growing very fast.

WOODRUFF: Right. Well, if -- and yet, I'm told that Dean has something like three times as many members involved in meet-up as say, for example, Wesley Clark. Why do you think -- I mean, you've obviously looked at this very closely. What do you think Dean has been so much more successful than any other Democratic candidate?

HEIFERMAN: Well, you know, the Dean campaign does a good job of telling its supporters very clearly that they can meet up locally with fellow supporters. But, you know, just because there are those higher Dean numbers, the fact is, Clark meet-ups happen in 300 towns across America every month. The Bush supporters meet-up happen everywhere. The Kerry and Kucinich, all of the political candidate meet-ups are happening in more places.

Yes, the Dean campaign does a particularly good job at making sure that whenever the governor makes a speech, he says, you know, I want you to meet up with your local supporters. You know, meetup is nothing more than just a plain and simple system that lets people who care about anything meet up locally. And it might have been -- you know, it's taken this Dean turn, but the meet-ups for -- you know, there's been nearly 10,000 political, you know, presidential meet-ups, presidential candidate meet-ups in the past few months in local towns across America, big and small. And they're about everything.

WOODRUFF: Right. Scott Heiferman with, making it sound like a very simple thing, and yet we've seen the Dean campaign take it and turn it into something politically extraordinary.

Scott Heiferman, thanks very much. Good to see you.

HEIFERMAN: Thanks, Judy.

WOODRUFF: We appreciate you talking with us.

And once again, this is INSIDE POLITICS, but CNN has just learned that the jury in the case of Lee Boyd Malvo, involved in the -- convicted of murder in the sniper shootings here in the Washington area, that jury has reached a verdict on a sentence, the sentencing for Lee Boyd Malvo.

That verdict to come down in a matter of minutes, we believe. We're working to get that information and, of course, we'll be moving to make it public as soon as we know what it is.

We'll be right back.


WOODRUFF: Breaking news from CNN, and that is that the jury in Chesapeake, Virginia has apparently reached a decision in whether 18- year-old Lee Boyd Malvo should receive the death penalty for his role in the sniper shootings here in Washington just about a year ago.

With me now, Jeanne Meserve, who has been covering the trial in Chesapeake, Virginia.

Jeanne, based on what we know, the jury had to choose simply death penalty or life in prison. Were those the two choices?

JEANNE MESERVE, CNN CORRESPONDENT: Those are the two choices they had on the capital murder charges. They convicted him on both of those. One was the commission of capital murder in the act of terrorism. Another was capital murder for the murder of more than one person in a three-year period.

They have only those two choices. If they're going to go for the death penalty, this has to be unanimous. If it is not unanimous, it automatically kicks to the lower penalty, the penalty of life in prison without parole.

This is, of course, a 12-person jury. There are eight women. There are four men. There are four African-Americans. There are eight Caucasians.

I sat in the trial of John Muhammad. And through that trial, one got a sense of the jurors and where their sentiments might lie through facial expressions. This jury in the Malvo case was much harder to read, they were much less expressive through their faces and actions.

We did see some reaction when they came back last week with that guilty verdict. A couple of women on the jury were clearly having some trouble containing their emotions. And I will say that when the penalty phase of this trail began, there was a lot of reaction. This is where this jury was exposed, for the first time, to some of the really emotional testimony in these cases. They heard the very dramatic 911 tape of Ted Franklin calling the police after his wife has been shot in the Home Depot parking lot.

He is anguished in this telephone call, and while they were listening to this call, they had Ted Franklin in the room with them. His head was down and in his hands, it appeared that he was weeping. Also in the courtroom, Linda Franklin's daughter, Katrina Hanam (ph).

In addition to that testimony, they heard from a number of other people who were relatives of sniper victims. The sister of Sonny Buchanan talked about how at this time of year, he would ordinarily be selling Christmas trees for charity just less than a block away from the very site where he was shot.

They heard the widow of Conrad Johnson talking about how her husband used to leave her love notes written in lipstick on the mirror so they'd be the first thing she saw when they came home. Very heart- rending testimony. A lot of the jurors very much effected.

WOODRUFF: Jeanne, I'm going to interrupt you just a second. I just want to let you know, we're being told the sentence is to be read by the jury or by the judge, I presume, at 4:00 Eastern. That's 1:00 Pacific. This is after nine hours of deliberation.

Jeanne, you're describing what the jury heard on behalf of the families who lost loved ones. What about on behalf of Lee Boyd Malvo?

MESERVE: Well, in this sentencing phase, they did hear testimony, too, from a few witnesses who had known him earlier in life. One of them was the mother of a friend of his. She also worked at a school which he attended for a short time.

She also was very emotional. She talked about how this was a young man who had been moved from place to place to place, how everybody felt for him and felt this wasn't fair, that he had a brilliant mind.

She was fighting tears while she was on the stand. And I have to tell you, the jurors were reacting tearfully to her as well. So they had their emotions pulled very much in two different directions by the testimony they heard.

There were very strong closing arguments from both the prosecution and the defense. The defense urging leniency, saying don't stone this young man, punish the child, but save the eye. That's a Jamaican expression that we'd heard throughout the trial. What it means is punish them, but don't hurt them. And then you heard from the prosecution, this was evil, this was vial, this young man should be put to death.

They've got a difficult decision before them. Clearly, it doesn't help that this is the holiday season. I'm told that Bob Horan, the prosecutor in this case, is now in the courtroom, Judy. He, of course, one of the key players in this drama as it's played out down in Chesapeake, Virginia.

WOODRUFF: All right. Jeanne Meserve, who has been covering that trial for us in Chesapeake. Jeanne, I want you to stay with us.

Again, we're hearing the sentence is going to be handed down at 4:00 Eastern. Of course we'll be covering that and bringing it to you just the second that we hear it.

Also with us on the phone right now is Jeffrey Toobin, CNN legal analyst.

Jeffrey, on the part of the jury, what are the instructions, the legal instructions they get in terms of how they go about making this decision?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, there are two factors that the jury is specifically asked to determine. Is there future dangers, and does the crime indicate depravity of mind. The jury has to find either or both of those beyond a reasonable doubt in order to sentence Malvo to death. If they don't find either of those factors beyond a reasonable doubt, they're required to find him not guilty -- not to be executed.

WOODRUFF: And so -- but the fallback is life in prison. I mean, it wouldn't be any less than that, is that right?

TOOBIN: Absolutely. The best he can hope for is life in prison without possibility of parole. And given his age, we are talking about decades in prison.

But I think one factor to keep in mind here that's very important, Judy, is this is what's known as a death qualified jury, meaning that each of these jurors in the course of voir dire, in the questioning before they were named to the jury, said they could impose the death penalty, given the right circumstances. That means everyone on the jury at least considers the possibility of a death sentence appropriate in this case. That eliminates a lot of people.

A lot of people in jury selection in general say they can't impose the death penalty. They just simply are morally opposed to it. They may be morally imposed to imposing it on a juvenile.

Those people are not allowed to be part of the jury pool. That makes these juries pretty tough. And I think that is something that defense lawyers have fought over the years, but unsuccessfully. And it means this is undoubtedly a pretty tough jury.

WOODRUFF: Right. All right. Jeffrey Toobin, our legal analyst.

We're less than three minutes away from, we believe, hearing the verdict in the sentencing of Lee Boyd Malvo in those sniper shootings in the Washington area.

Jeanne Meserve, back to you, on the question of future danger posed by Lee Boyd Malvo. MESERVE: There are a couple of things that prosecutors brought up. One, the escape attempt that he made shortly after his arrest. He was in a facility, tried to climb out through some ceiling times.

Also, they introduced to great effect some letters that Malvo had written in prison after the date defense attorneys have said he was separating from the influence of John Muhammad. These letters were to another inmate in the Fairfax County Jail, identified only by the name Packman (ph).

In these letters, he talks about escape. He advises Packman (ph) to watch and see where the weaknesses in security are, to make his assessment of the guards, and to bide his time, and he will find an opportunity. And he says in this letter something to the effect, you can bet if I were in the general population that's what I'd be doing. I'll die trying to get out of here, in effect. So those are the sorts of things that were introduced in this trial relating specifically to that issue of future dangerousness, Judy.

WOODRUFF: All right. Jeanne, we've just been hearing that Lee Boyd Malvo is now in the courtroom. The judge is in the courtroom. I'm hearing he has called for the jury to come back into the courtroom.

We obviously don't have a camera there right now or we'd be showing it to you. All this going on in a courtroom in Chesapeake, Virginia. We're talking with Jeanne Meserve, who has been covering this trial, and also with our senior legal analyst, Jeffrey Toobin.

Jeffrey, it is not the norm in this country that juries determine sentencing. In what cases do we find where juries are frankly given the burden of responsibility?

TOOBIN: Well, it varies by state how much role juries have in sentencing. However, in death penalty cases, juries must always impose death sentences. In fact, the Supreme Court just had a big case involving that very issue last term, which basically forced juries, not judges, to take responsibility for the decision to impose death. So in the -- I believe it's (AUDIO GAP) that imposes the death penalty.

WOODRUFF: But it hasn't always been that way, as you point out?

TOOBIN: It hasn't always been that way. And, in fact, until recently, there were some states where if a jury said there was a life sentence, the judge could overrule and impose a death sentence. Those kinds of rules are now gone. It must always be the jury that imposes the death sentence.

Also, this is, of course -- I'm sorry. I don't want to interrupt you. Are we ready to go back to the courtroom?

WOODRUFF: No, go ahead, we're waiting to hear that verdict from the courtroom. But go ahead, keep talking.

TOOBIN: It's just that there are 22 states that allow capital punishment for crimes committed by 16 and 17-year-olds. Virginia is one of only a few of them. Maryland is not. And that is one reason why Attorney General Ashcroft sent this case to Virginia to be tried first, even though more of the sniper's victims were in Maryland, because Virginia is one of the small number of states to have death penalty for juveniles.

WOODRUFF: All right. Jeanne Meserve, to you.

MESERVE: I've just been told that the jury came in and told the judge that they were only ready to return a verdict on the terrorism charge and the judge ordered them to go back and render a verdict on the other charge, the capital murder charge.

So apparently, from what I'm being told, we are not going to hear what their decision was on the terrorism charge. This is all going to be held for a moment until they work some more on capital murder. That's my understanding of what's going on in the courtroom right now.

WOODRUFF: So, Jeanne, we can assume this is going to take a little more time. If after nine hours of deliberations they were prepared to only return one sentencing verdict, then this is going to take a little time.

MESERVE: That would appear to be the case. Jeffrey might have some more insight on that from a legal perspective. But that's certainly how I'd interpret it, what's going on now and I'm just told that they have now cleared the courtroom because the jury has gone back to deliberate some more at the order of the judge.

Jeff Toobin, what about that? The judge saying to the jury, go back and try to come back with a verdict on the other two charges, one capital murder killing in more than -- more than one killing in a three-year period and the third, use of a firearm in a felony?

TOOBIN: I think, and it's always dangerous to assume, but if they were going to impose the death sentence for the terrorism charge, I can't imagine they'd be wanting to go back to do anything else. I would suspect that this is good news for the defense, that they have not imposed the death sentence yet.

It may be that they have decided not to impose the death sentence for terrorism, but still are weighing that issue for capital murder. You know, I think the very fact that they are struggling so much with this, and I think it's safe to say they are struggling at this point, because --

WOODRUFF: Jeanne Meserve -- Jeanne is picking up something here.

MESERVE: Yes, I understand we're not going to hear what that verdict is on the terrorism count until they've made a decision on the others. But Jeffrey, let me ask you could this indicate some conflict over this issue of triggerman and who pulled the trigger?

My recollection is triggerman only applied to the capital murder statute, rather than the terrorism one. That may indicate they're having some trouble deciding whether or not he pulled the trigger in the key shootings in this incident, which are the shootings of Linda Franklin and secondarily of Dean Myers.

TOOBIN: It very well could indicate confusion on that issue and one of the important things to remember about death penalty cases is that when it comes to impose the death penalty, there are very strict rules under what the jury must find in order to impose the death penalty. As we've discussed in Virginia, it's future dangerousness and depravity of mind. But when it comes to decisions not to impose the death penalty, jurors can come up with any reason they want not to.

So it may be that they are uncomfortable with the triggerman issue, but they don't have to explain why they are not going to impose the death penalty, they only have to follow specific guidelines when they are deciding to impose the death penalty.

WOODRUFF: So -- but again, Jeff and Jeanne this could mean good news for the defense. We don't want to read anything into this because we don't know what they've decided. But Jeanne, you want to jump in on this?

MESERVE: I guess it's your definition of good news. But good news to them would be life in prison without parole. But just impossible to say at this point, I think, which way it's going to go.

WOODRUFF: All right. Jeanne Meserve, who has been following the sniper trials in Chesapeake, Virginia, and our senior legal analyst, Jeff Toobin, thanks to both of you. CNN will continue to follow the story. As soon as the jury comes back with anything more, we'll get right on it and be bringing it to all of you live. We'll take a quick break. We'll be right back.


WOODRUFF: Once again, we're following developments in Chesapeake, Virginia, where the jury, trying to reach a decision on what the penalty should be for Lee Boyd Malvo in those sniper shootings. Lee Boyd Malvo having been convicted in the killings of individuals back about a year ago.

The jury has come back in one of the convictions, they had reached a verdict. We don't know what that verdict is. The judge turned around and told the jury to go back and try to reach sentencing decisions on the other convictions as well.

Jeanne Meserve, who has been covering the trial. Jeanne, just to go back over this without confusing our viewers, because we had all believed that we were going to hear what their verdict was on the sentencing, now we know they've reached a verdict, apparently, in the sentencing on the capital murder terrorism charge, but not on the others.

MESERVE: That's apparently true. The judge has sent them back, said do a little bit more work on this please. I can tell you that one factor in the jury's decision making process will be Lee Malvo's age. He was 17 at the time these crimes were committed that means that he was a juvenile. A lot of debate in this country as you know about juvenile death penalty, not all the states allow it. In fact, fewer than half allow juveniles to be executed. That's one of the things they'll be looking at...

WOODRUFF: Jeanne, I want to interrupt and tell you I'm hearing that the court is about to reconvene, which I guess could mean they've quickly reached a verdict on -- a sentencing verdict on these other charges. It's a fairly remarkable turn of events. Until we know more we don't want to try to read too much into it. Again, what were you told -- you were told what the judge's charge to the jury was?

MESERVE: She just said, "go back and I want you to reach a verdict on all of these counts. I don't want to release one until I know what you're going to say on all three, until this work is complete." They're bringing everybody back in. Perhaps they've come to a verdict, perhaps they've decide they can't. I'm reluctant to read too much into the tea leaves at this point, not being in the courtroom.

WOODRUFF: Jeanne, were they supposed to have taken a break starting tomorrow, given that it's Christmas Eve? What were the plans?

MESERVE: The plans were to work through today, then they were going to go on break. If they hadn't reached a verdict they'd come back next Monday and set down to work again on all of this.

WOODRUFF: I'm asking, because it's hard to believe they'd reach a verdict on such a critical question here in just a matter of minutes. So maybe you're right and we don't want to speculate.

MESERVE: Difficult in these situations.

WOODRUFF: It is. We don't know what's going on. The jury is back, we're told. I'm sorry. I'm now told the judge, Jeanne, is back in the courtroom and presumably, if he's back, he must be in a position to call the jury back.

MESERVE: And it is a female judge, Judge Jane Marum Roush in this case, so she could call the jury back or she may be informing the rest of the court about something. We just don't know exactly what's happening.

WOODRUFF: Jeanne, you describe this as -- they do have sentences on both counts, Jeanne. I'm hearing this from our producer in my ear just at the same time you are.

MESERVE: You can bet if we're waiting on tenterhooks, the family members are. There are a number of family members who have been in that court each and every day listening to that testimony. The jury is very aware they're there and they are very anxious to see sentencing here. What they want to see, most of them have said they want to see is they want to see a death sentence for Lee Boyd Malvo.

WOODRUFF: All of the family members have been there?

MESERVE: Not all of them. Ted Franklin, who is the husband of Linda Franklin and also, the daughter, Katrina Hannum. I've seen them in the courtroom every day that I have been there. In addition, Vicky Snider (ph), who is the sister of Sonny Buchanan has also been there every day. Her mother has been there almost every day.

In addition, in the last week or so we've seen some additional families come in. Some of the Myers family came in. Some of Conrad Johnson's family came in.

Also, the sister of Pascal Charlot, who was shot here in the District of Columbia, she has also been a fairly continuous presence at this trial. They're all there. One of the Muhammad jurors who I spoke to said they were very aware of family members in the courtroom. That they read their faces and they felt that they were getting a message from the family members, simply by their presence -- Judy.

WOODRUFF: That had to be the case.

All right, our senior legal analyst Jeff Toobin is back with us again, Jeanne. Kind of a quick turnaround of events here, Jeff, where the judge told the jurors to reach a sentencing verdict on the second charge, capital murder, killing more than one in a three-year period.

After they said they'd reached a verdict on the capital murder- terrorism charge, we're told the jury has reached a sentencing decision on both charges. And we've are we're also told, Jeff, that the jury is back in the courtroom and so we're waiting to hear this any second.

What does this tell you, Jeff, the fact that we've had the back and forth going on here?

TOOBIN: It suggests there are one or two people who had a problem and they quickly had their problem resolved.

You know, these are very emotional, deeply wrenching decisions that these people face. And it's the day before Christmas Eve. You can be sure they didn't want to come back again to have to deal with this. They would have to wait till next Monday, according to the judge's schedule to start deliberating again. They wanted to get it over with.

But jurors take this stuff seriously. And it is quite literally a life or death decision, emotional decision

WOODRUFF: It also tells you that if those jurors were making this decision this quickly, they must have been on the edge of tilting one way or another or it wouldn't have happened that way.

TOOBIN: That's right. And jury deliberations in penalty phases tend to be somewhat shorter than guilt phases because there really, in a way, isn't that much to discuss. You know the evidence by that point. You know the person, the defendant is guilty. And it really is just a gut check decision of whether to execute or not. And these decisions tend to be rather quick, because people react emotionally, viscerally to that issue. And often is really just that not much to discuss.

WOODRUFF: And yet it's -- nothing is more important than that, taking a life or not.

TOOBIN: I have watched jurors come into the courtroom...

WOODRUFF: Jeanne, we have a verdict. Jeanne Meserve.

MESERVE: We do. We understand the verdict on the capital murder in connection with an act of terrorism has come back. Lee Malvo has been given life in prison without parole and a $100,000 penalty. Once again, no death penalty on this charge. Life without parole the jury's decision on one of the charges of capital murder facing Lee Malvo.

WOODRUFF: And so now we are waiting to hear what the verdict would be on capital murder, killing more than one in a three-year period.

MESERVE: We are, indeed. No word on that quite yet. If this follows -- once again, I'm told we now have a verdict on the second charge. It is life in prison without parole with a penalty of $100,000. Once again, on the two capital murder charges, he is not getting the death sentence, he's getting life in prison without parole.

This, of course, different than John Muhammad. John Muhammad, in both these charges, got the death penalty.

WOODRUFF: So, Jeanne, in effect, that means -- and, Jeff, this means that the jury bought the argument that to a degree, at least, Lee Malvo was a tool of the older man? Jeff?

TOOBIN: I think this is a tremendous victory in the magnitude of these crimes. And I think the defense strategy, which was to try this insanity defense, in the guilt phase, which really wasn't much of an insanity defense, was really just setting the stage for a penalty phase defense. It worked very well. I think it was extremely artfully designed. And, obviously very successful.

WOODRUFF: Jeanne, what's your sense, having covered this?

MESERVE: Well I can tell you I talked to one of the Muhammad jurors after the trial was over about the Malvo case. This is a woman who had voted for the death penalty for John Muhammad. And she said to me, I could not give the death penalty to Lee Malvo, despite all that I know about this case. I could not do it because he is 17- years-old.

The juvenile issue weighed very, very heavily with her. More with her than the particular evidence in the case and the evidence that John Muhammad might have been the mastermind here. TOOBIN: Judy?

WOODRUFF: Go ahead, Jeff.

TOOBIN: Well, I just -- this sets up a very interesting dilemma on the part of the authorities who are dealing with this case because, after all, he faces other trials elsewhere in Virginia and other counties and in Maryland and in Alabama, that just because he avoided the death penalty in this case doesn't mean that he won't get it ultimately because there are so many crimes here. He can be prosecuted for those crimes in other jurisdictions including, in federal court. And he may yet get the death penalty.

WOODRUFF: And that's right. This was purely for the one and only incident that he was being tried for. That was the murder of Linda Franklin. One of those -- the ten killings that literally terrorized the Washington, D.C. area in the fall of 2002.

Jeff, how common for defendants this young to get the death penalty?

TOOBIN: Well, it's pretty uncommon. But not without precedent. Virginia has -- they've executed four people for crimes they've committed as juveniles since the death penalty came back in the mid- 70s.

At the moment, there are no juveniles no people who committed crimes as juveniles on death row. But it does happen occasionally. But only 22 states even allow it. And the Supreme Court has indicated reluctance to approve death sentence on juveniles, but they have not yet outlawed it completely.

WOODRUFF: Jeanne, what do we know about other trials that could be getting underway, the timetable for those, these other killings?

MESERVE: We know virtually nothing. It's really a very difficult situation. There are so many jurisdictions lined up to prosecute. They just don't know exactly where it's going to go next.

When I talked to Muhammad's prosecutor about the next step for him, one of the people on the team said, We just don't know. And we don't even know who's supposed to make the decision. They presume it will be someone at the Justice Department. But when this trial wrapped up, they had no idea when that might come.

We have heard talk that perhaps these two jurisdictions would flip-flop and that Malvo would be pry tried by Prince William and Malvo by Fairfax -- or did I get that confused? But you understand what I'm saying? They'd flip-flop on those two jurisdiction.

WOODRUFF: These are counties in Virginia?

MESERVE: Counties in Virginia. But then I've also heard talk just around the courthouse that there's a possibility they could to go to Alabama next. It's very unsettled. We don't know what the timetable is or how that interfaces with the appeals process on this particular case, because you know there'll be an appeal.

WOODRUFF: Jeff, is this an initially complicated case because of the jurisdictions involved?

TOOBIN: It sure is, Judy. I think we should all consider ourselves fortunate that we live in a society where murders of ten people are pretty uncommon. And so you don't have a lot of precedent for a decision like that.

But I think as you'll recall, this -- the decision to go to Fairfax and Prince William first was made by Attorney General John Ashcroft. And he very specifically said one factor in his calculation was the fact that Virginia had an active death penalty in place. And now presumably, that will still be a factor in the decision to have -- of where to go next.

WOODRUFF: Jeanne Meserve, you have a little information?

MESERVE: Just that final sentencing has been scheduled. It's going to be done on March 10. That's a Wednesday at 10:00 a.m. in the morning by Judge Roush.

WOODRUFF: Now what does that mean? Final sentencing.

MESERVE: Go to Jeffrey for that one.



TOOBIN: It's pretty much a formality. Just the -- that is when the sentence of life in prison without parole will be imposed, as well as the fine.

But the Supreme Court has said there's no way the judge can overrule the jury on a question of life or death. So that will basically be the end of the process in the trial court and it will allow the appeals process to begin.

But March 10 will just be a formality.

WOODRUFF: So what about the third -- the use of a firearm? Jeanne, did we hear about that?

MESERVE: You know, I haven't heard anything on that. Let me check the e-mail here.

WOODRUFF: There were three charges that the jury was asked to come up with a sentence, a recommended sentence on. One was capital murder terrorism. The other was capital murder, killing more than one in a three year period. In both of those, the jury gave Malvo life in prison without possibility of parole and, as I understand it, a $100,000 fine in both of those cases.

Jeanne and Jeff, what does that mean in a situation like that, where presumably this is somebody who has no -- you know, not much of a bank account?


TOOBIN: It mean absolutely nothing. I mean he will never pay that fine. I believe prison workers in most states make about ten cents an hour. So some of that can be garnished. Even in a sentence of life without parole, he's not paying any pay $100,000. It's the way of the jury imposing a maximum sentence.

MESERVE: And, Judy, on that third charge you were curious about, that firearms charge, he was convicted of that. And that carries a mandatory three-year sentence. So that's where that one stands.

WOODRUFF: OK. So it was just really just the two murder charges we were waiting for sentencing on?

MESERVE: That's right.

WOODRUFF: So the jury, we understand, Jeanne, has now been dismissed? Or do we know?

MESERVE: That's my understanding. They have left the courtroom. We expect them eventually to make their way down to the stakeout position, which is outside the courthouse.

Also, we expect to hear from some family members and also from both the defense and prosecution teams for all their perspectives on what's happened today. This verdict of life in prison without parole for Lee Malvo.

WOODRUFF: All right Jeanne Meserve summing it up. Jeanne having covered the trial for many weeks in Chesapeake, Virginia of Lee Malvo, the young man who was 17-years-old when he worked with John Muhammad in the sniper shootings of ten people in the Washington, D.C. area. Jeanne, thank you very much.

We've got some news conferences coming up and our senior legal analyst Jeff Toobin has been joining us on the telephone from New York.

Both of you with us on this day before Christmas Eve when presumably those jurors wanted to get a decision behind them so they can be with their families and get ready for the Christmas holiday.

We're going to take a short break. Be right back back. Again, news conferences coming up from Chesapeake, Virginia.


WOODRUFF: Breaking news this hour as we've been reporting. A jury in Virginia has decided to spare the life of 18-year-old Lee Boyd Malvo, who, along with John Muhammad, his mentor, you would say, was involved in the -- both of them involved in the sniper shootings in the Washington, D.C. area in the fall of 2002.

Again, the verdict in those, both of those charges, in the killing of Linda Franklin, life without parole. Life in prison without parole, but spared the death penalty.

CNN legal analyst Jeff Toobin is with us and also Jeanne Meserve, who's been covering the trial us of John Muhammad and Lee Malvo.

Jeff, quickly to you. People are wondering why only -- why Linda Franklin? Why was this the first one? When are we going to know about the others who were victims of the sniper shootings last year?

TOOBIN: The reason Linda Franklin went first is that Attorney General John Ashcroft decided that this county, Fairfax County was the strongest case that could be brought and the best chance to get a conviction and death sentence.

The trial -- there was a change of venue. It was moved south in Virginia to a different county. But the -- because so many jurisdictions were involved, it was a Justice Department decision, presumably. And as Jeanne said, we don't know for certain, that the decision on who goes next, which county and which state, whether it's Maryland or Alabama or, indeed, the federal government, which could also bring its own prosecution, being that will have to be the subject of another conference among prosecutors. And a decision ultimately, I suspect, by the attorney general once again.

WOODRUFF: So, Jeanne, if it was done in Fairfax, thinking that was the best location, the best chance to get a death sentence, turns out to be a miscalculation.

MESERVE: Apparently it has been. There has to be great disappointment of Robert Horan, who was the prosecutor in this case, who has a pretty strong record when it comes to the death penalty.

And he was very effective in this case. Mounted quite a streamlined prosecution, as compared to the case against Muhammad. But by most people who watched it, a very effective one. He saved a lot of the really emotional testimony for the last phase, hoping that that one, two, three punch of hearing from family members would affect jurors in such a way that they did vote for death.

Obviously, his calculations didn't work here. But it has to be a considerable disappointment on his part this afternoon.

WOODRUFF: Jeanne, what would you say was the most effective argument on behalf of those who presented the Lee Malvo side of all this, saying spare the life of this young man? What was the most effective argument?

WOODRUFF: I tell you, part what was made it so effective was Craig Cooley. He is the lawyer from Richmond who specializes in death penalty cases. He's a very gentlemanly sort of defense attorney, always very cordial to the prosecution, the jury, and whoever was on the stand.

They put in considerable mental health testimony in this phase. And it came during the guilt or innocence phase rather than mitigation. The prosecution objected to that but unsuccessfully. And a lot of people talked extensively about the very difficult childhood that this young man had had, that he had a mother who left him friendly frequently to work other places, the parents had divorced when he was quite young. The father was not a factor in his life. So he was moved from place to place school to school, a very difficult thing for a young man.

He looked for a father figure. He thought he'd found it in John Muhammad. John Muhammad who, with his own children, everyone testified, was a magnificent father. And so the two of them clicked and began traveling together. And then they went into this argument about indoctrination.

I'm not sure how successful their presentation on indoctrination was. We're going to have to hear from the jury on all of that. The reason I question how successful it was because there was pretty effective counter-testimony from the prosecution side this on, discounting the effect that that might have had on this young man and his ability to judge what was right, what was wrong.

But clearly, in the guilt or innocence phase, they made their decision on whether he could distinguish right from wrong, whether or not he was insane.

But I think some of that testimony about his youth and about the difficulty of his youth might have carried the day with some of the jurors.

It was a rather young jury, by the way,I a might mention, Judy.

WOODRUFF: Both Jeanne and Jeff, I want to ask you to stand by for just a second because Elaine Quijano, who was in the courtroom when the jury came back in and delivered this sentencing decision -- Elaine, tell us what you heard and the reaction of the people in the courtroom when this was announced?

ELAINE QUIJANO, CNN CORRESPONDENT: Well, Judy, first of all, we should mention the jury came into the courtroom not once, not twice but three times because of the confusion over the verdict forms.

And when they came in the last time, I was watching very closely, they did not make eye contact with Lee Malvo. In fact, Lee Malvo was looking at them very intently all three times that they came in. He appeared to be very intently watching them. More so, some observers said, than in past times when the jury has filed into the courtroom.

And at the moment of the reading of their verdicts, Lee Malvo had his head down, he had his hands up sort of on the desk and was looking straight ahead, blinking. That's the only reaction that we saw. Just a lot of blinking while his defense attorney, Craig Cooley, who sat immediately to his right, a had his head bowed, was not even looking up. And as the verdicts were read, his head sank lower and lower.

At one point, we also saw of other attorney, Michael Arif, who was sitting on the far right at the defense table, put his hand on Craig Cooley's back and seemed to pat him and rub him. This is an incredibly emotional time, as you can imagine.

Craig Cooley, before the verdict was read, has been seen pacing in the courtroom as he waited word, after the verdict was read, after the families also who were in the courtroom had no real reaction, no discernible reaction. It was an emotional time for them too, obviously. And with the confusion over the verdict instructions, they were ready about 15 minutes before the actual verdict was read. They were watching very intensely. There were Kleenex boxes at the ready.

One person I should mention, Paul LaRuffa, a shooting victim who survived, was in the courtroom in the third room. He sat with his head down, was not looking at anyone and he had a tissue, a Kleenex that he just kept kind of tearing up in his hand, kind of just sort of nervously sort of fidgeting as the jury was filing back into the courtroom. And at the time the verdict was read, no actual reaction from him as well. They all exited the courtroom before any of the media was allowed to leave.

And I should also tell you, Detective June Boyle who played a very central role in the investigation, she is the detective who sad sat down with Lee Malvo and whose voice was heard on that audio taped confession.

I saw her after -- immediately afterwards and she looked at me and shook her head. We asked her for any comment. She simply shook her head. We asked her, obviously, this was very upsetting for her. She shook her head and walked away.

Members of the sniper task force doing the same, sort of filing outside silently. It was very quiet...

WOODRUFF: Shaking their head, presumably, because they felt that he deserved the death penalty? Is that what you're reading into it?

QUIJANO: Well, that's the prosecution had been saying in their closing arguments, what they wanted was not vengeance. They wanted justice, they said. And they flashed the pictures of nine out of the ten sniper victims on the screen in the courtroom, in life and in death. And they were talking about how that was the verdict that the jury should return to get justice for the family members.


QUIJANO: And the police in this case, as I said, playing a very central role with those audio taped confessions that many said were so damaging because they were Lee Malvo's own words, own thoughts on tape. And that was something that some thought they would not be able to overcome.

However, yesterday, Craig Cooley, the lead defense attorney, very strong, powerful will in his statements, bringing in even a visual aid. He brought a stone, a fist-sized stone into the courtroom. And he talked about how in ancient times, jurors would participate in executions by stoning the accused, each juror, one by one.

And he urged them to not stain their stone with the blood of this child. He kept saying this child. Lee Malvo was 17 years old at the time of the shootings. That certainly weighed heavily on the jurors' minds, though we've not yet heard from them. We are awaiting to see if they will, in fact, speak to the media -- Judy.

WOODRUFF: All right, Elaine Quijano outside the courtroom in Chesapeake, Virginia. Elaine having covered this sentencing phase of the trial just for the last couple of day. Elaine, thank you very much.

She was in the courtroom when the jury came back a few moments ago and said that they would spare the life of Lee Boyd Malvo, who was 17-years-old in the sniper shootings that took place a little over a year ago here in the Washington, D.C. area.

Elaine, thanks to you. Thanks to Jeanne Meserve, our correspondent who has been covering the trials in Virginia. And also to our senior legal analyst, Jeff Toobin.

Again, the jury sparing the life of Lee Boyd Malvo. We're waiting any minute now for news conferences on the part of the prosecution, the defense, perhaps the jurors. We're waiting to see who comes before the cameras to talk about this development, final development in this trial, Lee Boyd Malvo.

All right, a very brief break. And we move on to "CROSSFIRE." I'm Judy Woodruff in Washington. Thank you for joining us.


Sentencing Verdict Reached>

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