Malvo Insanity Gambit: Head Start On Death Case?


Sniper suspect Lee Boyd Malvo’s strategy for seeking a not guilty verdict by reason of insanity appears to be the first attempt of its kind in Virginia, the Richmond Times-Dispatch says. Defense lawyers contend that Malvo, 17 at the time of the sniper shootings, was under the corrupting influence of John Allen Muhammad, then 41, to the extent that he did not know right from wrong at the time of his crimes.

Such a defense did not work for newspaper heiress Patty Hearst, kidnapped by the Symbionese Liberation Army in 1974. If history is any guide, the Times-Dispatch says, Malvo’s chances of winning such a verdict in Virginia are slim at best, say experts.

Lawyers like Steven D. Benjamin and Warren Von Schuch say that Malvo’s defenders may be angling for an early start on their case to avoid a death sentence. Benjamin, a Richmond defense lawyer, and Von Schuch, a Chesterfield County prosecutor who has sent more men to death row than anyone else in Virginia, believe that Malvo’s attorneys want to present mitigating evidence during the guilt phase of the trial, long before the sentencing phase starts.

Mitigating evidence like an abusive childhood, may lessen a defendant’s culpability, depending on how a jury views it. Such evidence is not allowed in the guilt phase of a trial, but it could be used if an insanity defense is in play. “I think it’s a brilliant and necessary strategy,” Benjamin said.

Contrary to popular belief, very few criminals escape prison because they were found to be “insane” at the time of their crimes. A preponderance of the evidence must show at least one of the following: They did not know right from wrong; they did not appreciate the nature, character or consequences of their actions; or

they were unable to resist an impulse to commit the crime.

A recent study of 5,175 Virginia pretrial sanity evaluations in the past 10 years found that only 7 percent to 12 percent of those evaluated met stringent state standards for insanity at the time of their offense. An average of 36 people a year were found not guilty by reason of insanity by a judge or jury – out of the more than 25,000 criminal cases the state each year.

The Baltimore Sun says that the chief prosecutor in Fairfax County, Va., Robert F. Horan Jr., “is expected to be at the top of his prosecutorial game” in the Malvo case. Horan “is widely recognized around the state of Virginia as the dean” of prosecutors, said prosecutor Randolph Sengel in neighboring Alexandria, Va. He said Horan mixes legal knowledge with courtroom know-how and experience with the latest legal trends.

At 71, when many prosecutors are ready to cede a high-profile trial to ambitious assistants, Horan tackles some of the most notorious murder cases himself. Horan is known for his meticulous trial preparation and for mesmerizing jurors with his deep voice and dramatic flair. He has been known to wave a death certificate while blaming a defendant for turning a human life into just so much paperwork.

“We used to kid that we were legends in our own minds, but he is a legend in his own time,” said Leo E. Green, a Maryland state senator and a Horan college friend.

In court, Horan cites precedents, quoting passages and page numbers without referring to notes. An often-repeated tale has it that when defense attorneys spread a suitcase worth of files across their table, “Mr. Horan will come in with a pencil and a blank legal pad and eat ’em alive,” Sengel said.


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