In a case where the prosecutors seemed to hold all the cards, Lee Boyd Malvo's lawyers had only one to play. It was Malvo's age, and it turned out to be the ace that saved the teenager's life.
For more than a month, Malvo's lawyers called him a child, dressed him like a child and treated him like a child as his fate was argued in court. And as fervently as Fairfax County Commonwealth's Attorney Robert F. Horan Jr. tried to argue otherwise, he was hamstrung by the reality that Malvo -- heinous as his crimes were -- was 17 when he and John Allen Muhammad embarked on a cross-country killing rampage that culminated in the sniper attacks in and around the Washington area.
Nothing in the mass of evidence arrayed against Malvo, now 18, was going to change that, and no one, not even the commonwealth's attorney himself, expected it to be an easy decision for the jurors: to do what most countries and indeed the majority of U.S. states would not -- condemn a juvenile to death.
Advocates for abolishing the juvenile death penalty say the jury's decision sends a strong message to legislators and prosecutors that public opinion is shifting about executing teenagers. "I think in 10 years we will look back and this will have been a significant event," said George Kendall, who recently stepped down as director of the NAACP Legal Defense Fund's criminal justice project.
But if there was ever going to be a case for such a punishment, this was it, Horan told the jury in his closing argument Monday, as he recounted each of the nine sniper victims conclusively linked to Muhammad and Malvo. He emphasized that Malvo was just as responsible as Muhammad, who was convicted last month and sentenced to death. "They were an unholy team, a team that was as vicious, as brutal, as uncaring as you could find," Horan said.
And if any state would go forward with the ultimate sanction, it would be Virginia, one of the most aggressive in pursuing the death penalty and one of only seven that have executed juveniles since the Supreme Court reinstated capital punishment in 1976.
Kendall said it is telling that the jury did not impose a death sentence. "This was a very clear sign that this country is turning away from using the death penalty generally, but clearly in cases involving youthful offenders, no doubt about it," said Kendall, who this month argued before the U.S. Supreme Court on behalf of Texas death row inmate Delma Banks Jr. "I think that any prosecutor ought to think long and hard about spending all that money."
Joshua Marquis, the district attorney in Clatsop County, Ore., and co-chairman of the capital litigation committee of the National District Attorneys Association, said that if ever a crime merited the death penalty, it was this one. But he said seeking the death penalty against a young offender is fraught with obstacles. "It is always difficult to see the death penalty," Marquis said. "It is particularly difficult when they are youthful, whether they are 17 or 18, or 19 -- it doesn't make a difference."
Malvo, who was 17 during the sniper shootings, was convicted of capital murder in the Oct. 14, 2002, shooting death of Linda Franklin outside a Home Depot in Seven Corners. The conviction was always going to be the easy part; the sentence was always the real battle. Tuesday, Horan said Malvo's age, especially his baby-faced appearance, was the decisive factor. "He is very lucky that he looks younger than he is," Horan said. "You can make the argument very well, which they did."
In fact, that was the defense strategy from the outset -- keep harping on Malvo's age, particularly that he was only 15 when he first met Muhammad and fell under his spell. The defense attorneys knew it would take more than the mere mention of Malvo's age to persuade the jurors to spare his life. They also would have to make them believe that Malvo was a child -- and a child worthy of their mercy.
So, using a novel defense, they set out to tell the story of the boy Lee Malvo, troubled and vulnerable but not evil and incorrigible.
Led by Craig S. Cooley and Michael S. Arif, they argued that Malvo was insane and furnished experts to attest to that. Brainwashed by Muhammad, Malvo was, the defense attorneys and their experts said, suffering from a mental disease that left him unable to tell right from wrong. He was, they argued, legally insane and therefore not guilty.
It was a strategy that appeared to frustrate Horan, with defense testimony often going on for hours with hardly a mention of the shootings that terrorized the District, Maryland and Virginia for three weeks in October 2002 and Malvo's role in them. Horan had a trove of evidence that would be any prosecutor's envy, and yet the defense didn't even try to counter it.
Instead, they assembled an array of relatives, friends, acquaintances and experts to tell the story of the little boy who spent years in search of a parent's attention and ultimately found it in Muhammad.
In Cooley, Malvo had perhaps the perfect lawyer to tell his story, a master raconteur with a twang and a down-home style. Beginning with his opening statement, when he spoke of a "vulnerable child lost in the clutches of a madman," Cooley and the rest of the defense team took the jury on a journey that started long before the string of killings, to the slums of Jamaica where Malvo was born.
As a defense, in fact, insanity was unpersuasive -- the jury rejected it outright. But as a broader strategy, it was ingenious, other defense lawyers say. It allowed Malvo's attorneys to begin telling his story from the very beginning of the case, to make it as much a part of the trial narrative as the crimes themselves. And faced with a wealth of incriminating evidence, including Malvo's own unrepentant admissions, and one of the state's toughest prosecutors in Horan, Malvo's attorneys had to know that Malvo's story, told right, was the only thing that might save him.
It is textbook technique for capital defenders, but it is easier taught than executed. Armed with expert opinion that Malvo was indeed suffering from a mental disease, Cooley managed to make it work, offering days and days of evidence that would ordinarily have been irrelevant before the sentencing phase of a trial.
"I think that probably trying the case as an insanity defense gave the jurors some early insight into the difficulties that Lee Malvo experienced in his life," said Richard Burr, the Texas lawyer who defended Timothy McVeigh and who works with the Federal Death Penalty Resource Counsel. "I think the more the jury is exposed to a defendant's vulnerability -- and Lee Malvo had a lot of vulnerabilities -- the more it becomes real to them."