The Strategy Behind Raising a Weak Insanity Defense in the Malvo Case
Why the Defense May Help Malvo Avoid the Death Penalty

By ELAINE CASSEL

Monday, Dec. 22, 2003

On December 18, a Virginia jury convicted 18-year-old "Beltway Sniper" Lee Boyd Malvo of terrorism and capital murder. The convictions, as I discussed in a previous column, rendered Malvo eligible for Virginia's death penalty.

By convicting Malvo, the jury rejected his insanity defense -- causing some to wonder why his attorneys had raised it in the first place. After all, the evidence of insanity was thin, and the defense was, at best, a long shot.

I will argue, however, that Malvo's attorneys were still smart to raise the defense on his behalf. Even a longshot is better than no chance at all. And by raising the insanity defense during trial, Malvo's attorneys have made it more likely that at the penalty phase -- which is occurring now -- jurors will spare him from execution.

Why Malvo's Insanity Defense Was Tenuous At Best

Under Virginia law, the jurors evaluating Malvo's insanity defense had to decide if he was suffering from a "mental disease or defect" that would render him not legally responsible for the killing.

Defense psychologists testified he suffered from a dissociative disorder. But that a tenuous diagnosis on which to hang an insanity defense.

The "best" insanity defenses are found in cases where the defendants are (or were, at the time of the crime) suffering from a psychotic disorder, such as schizophrenia. "Psychosis" means a break with reality. People with schizophrenia suffer from delusional thinking, such as grandiose or paranoid thoughts.

Consider, for example, Russell Weston, who more than five years ago stormed the U.S. Capitol building and killed two Capitol Hill police officers. Weston thought he was on a mission to seize a "ruby red satellite box" stored in the "great safe in the Capitol." Retrieving the box, he believed, would save the world from cannibalism. Before he left for D.C., Weston heard voices speaking to him from his parents' cable television box -- voices so disturbing that he ripped the box out of the wall.

Many jurors come to conclude that crimes by psychotic culprits like Weston should result in hospitalization, not jail. But it is hard to convince them to reach the same conclusion when the defendant is instead suffering from a dissociative disorder, as defense psychologists say Malvo was.

A person with dissociative disorder can seem entirely sane. Consider Malvo. His thinking is not delusional, and he does not claim that he was hearing voices. The evidence shows that he methodically planned the killings with his father-figure John Allen Muhammad. It is a safe bet that the jurors did not "see" a mentally ill defendant who should be relieved of criminal responsibility.

Indeed, the symptoms of dissociative disorder can make a defendant seem especially culpable -- cold-blooded and calculating. That's because a majority symptom is a disconnect between action and thought. It is a form of "detachment," or, in Malvo's words, "zoning out."

Jurors were likely horrified when Malvo described his heinous crimes calmly and without emotion. From a psychologist's perspective, however, that is only testament to his insanity. A sane person would feel emotion; Malvo did not.

Jurors, however, have great difficulty accepting that extreme dissociation can be a form of insanity. In part, this may be because unlike psychosis, dissociation -- "zoning out" -- is something jurors themselves have experienced. A mental trick as pedestrian as trying to pretend one is elsewhere, while at the dentist, counts as an extremely mild form of dissociation.

More than this, one need not be insane to exhibit dissociation, and indeed, sometimes it can aid survival. People facing extreme dangers -- such as death by freezing when stranded on a mountain-climbing expedition, or being stranded in the ocean after a boat capsizes -- report detaching their minds from their physical suffering in order to concentrate on staying alive. Similarly, people who suffer from posttraumatic stress disorder often experience dissociation in a way that protects them from fully realizing the horror of the trauma that haunts them.

If Malvo's dissociative disorder had been far more extreme, jurors might have recognized it as insanity. For instance, survivors of severe childhood abuse may develop multiple personalities that protect them from making the horrible experiences fully a part of their lives. This disorder, which used to be called multiple personality disorder, is now known as dissociative identity disorder (DID). But Malvo's disorder did not manifest itself that way.

For all these reasons, Malvo's invocation of Virginia's insanity defense, though grounded in plausible expert testimony, was very unlikely to succeed -- and it did not. Raising it, however, may have greatly helped Malvo's attorneys make the case that he should not sentenced to be executed -- as his father-figure John Allen Muhammad has been.

Why Raising Even An Unsuccessful Insanity Defense Can Help Avoid the Death Penalty

Granted, the defense may have lost credibility with some jurors when the prosecution ridiculed Malvo's insanity defense, and conducted blistering cross-examination of defense experts who supported it. But on the whole, the defense will likely benefit, in the penalty phase, from raising the insanity defense at the guilt phase. To see why, consider what the trial would have looked like if such a defense had not been raised -- and what it actually did look like.

Had the insanity defense not been raised, the trial would have been over with in short order, for it would only have involved the prosecution's establishing the facts of the crimes. Jurors would have dwelt on the heinousness of the crimes, and the terrible harm they caused the victims' friends and families -- and these factors would have been foremost in their mind up until they reached their verdict. By then, the jurors might well have hardened themselves against Malvo irrevocably.

Once the insanity defense was raised, however, the jurors were forced to confront the reality of Malvo's life. Defense attorneys were able to stress his youth -- even now, he is only 18 years old -- and impressionability. They were able to show that a conniving father figure who -- whether or not he actually "brainwashed" him -- plainly had an overwhelmingly strong, incredibly pernicious influence took in Malvo. And they were able to show, with the help of the testimony of psychiatric experts

-- as well as former friends, neighbors, and teachers testified -- that it was under, and largely because of Muhammad's influence, that Malvo became increasingly dissociated from reality as he entered the world Muhammad had constructed for them, a world in which virtually every move made, every breath taken, and every morsel eaten was controlled by Muhammad.

After hearing the defense's evidence, even jurors who did not conclude that Malvo was insane under Virginia law might have believed that he was mentally ill, just not sick enough to be absolved of responsibility. An insanity verdict is, after all, not a mental health diagnosis, but a legal construct reserved for defendants unable, because of a mental disease or defect, to know right from wrong and to conform their conduct in accordance with law. Because the insanity defense was raised, Malvo's attorneys were given a chance to have experts explain to the jury why what looked like callousness, could instead be dissociation, and what looked like evil, could be mental illness, even if not an illness sufficient to qualify as legal "insanity."

This evidence may well convince even a juror who did not want to be a holdout at the guilt phase, to become a holdout at the penalty phase -- a holdout against death. And since all it takes is one, if the defense reached a single juror, that could save Malvo's life.

This is a tragic case -- tragic for the victims, and for Malvo, as well. In raising the insanity defense, Malvo's attorneys had nothing at all to lose--and everything to gain. Let us hope that they can convince the jury to spare the life of an 18-year-old boy whom adults have otherwise grievously failed.


Elaine Cassel practices law in Virginia and the District of Columbia, teaches law and psychology, and has a web site on civil liberties. Her book, The Other War: The Bush Administration's Efforts to Dismantle the Constitution Since September 11, will be published in 2004 by Chicago Review Press.

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