CrimLaw

Sniper Malvo:

Today opening arguments will take place in the Malvo case. Unfortunately for it, the prosecution will not be able to scare/impress/anger the jurors by waving the rifle in front of them during opening statements.

In opening statements tomorrow in Malvo's trial, prosecution and defense teams are likely to lay out road maps of sorts of the cases they intend to present to jurors.

Fairfax County chief prosecutor Robert F. Horan is expected to portray Malvo as a willing killer who laughed and bragged as he told police investigators about his role in the sniper attacks.

Defense attorney Craig S. Cooley, meanwhile, said he will tell jurors that Malvo is not guilty by reason of insanity because he had been brainwashed by the older Muhammad.

Even though it is CrimLaw 101 that the prosecution does not have to prove motive, Malvo's lawyers are expected to concentrate on the question of "Why" in order to show Malvo was under Muhammad's sway. Many do not believe this will work (at least in the guilt/innocence phase):

It's the longest of long shots but it is a strategy that makes perfect sense given that Malvo's lawyers cannot tell jurors with a straight face that their client had nothing to do with Franklin's death. Rather than deny the obvious, then, Malvo's attorneys will instead try an insanity defense designed to paint their client as — almost literally — a killing machine programmed by Muhammad for death and destruction. Problem is, insanity defenses almost never work, especially when the period of alleged "insanity" lasted for weeks, which is what Malvo's attorneys will have to argue given the duration of last fall's sniper attacks. It's not just a temporal issue, either. There is plenty of evidence from the Muhammad trial that the pair meticulously planned their attacks — something Malvo's prosecutors surely will note when they talk about whether Malvo knew right from wrong.

Malvo's attorneys are talking insanity, then, not to gain an acquittal but to better their chances of avoiding a death sentence for their client. By raising the defense, Malvo's lawyers can hammer away on jurors from the start of the trial that Malvo would never have done what he is accused of doing without the intense and effective influence of Muhammad. Over and over again, we are likely to hear Malvo's attorneys say that their client didn't just snap like the typical insanity defendant but instead was manipulated by the older suspect over a long period of time into thinking that killing was OK if it made Muhammad happy. The idea is that this concept will be plausible enough given Malvo's tortured background to convince at least one juror to give the kid a break during sentencing.

And, just in case you were wondering, the Toronto Star has figured out why Malvo is being tried here:

They kill teenagers in Virginia, by law — three juveniles sent to death row since 1976. It is for this reason — Virginia's aggressive prosecution of young people on capital charges, its disinclination toward mercy even for juveniles — that prosecutors from two states and the District of Columbia agreed to have Malvo tried here first for one specific killing, the murder of 47-year-old FBI analyst Linda Franklin on Oct. 14, 2002.