The two sides presented closing arguments yesterday. The judge refused to allow an instruction on irresistible impulse. As always the argument for not allowing the instruction is that there is no evidence to support such a finding - which one would think ought to be the jury's decision.
The arguments went back and forth over whether Malvo was a shadow, unable to separate himself from Muhammad, or the two were peas in a pod. The prosecutor used a slick, multi-media presentation to close his case:
Commonwealth's Attorney Robert F. Horan Jr. used a multimedia presentation of crime scene photos and Malvo's tape-recorded confession to argue that Malvo was the triggerman in many of the shootings. Malvo "described [them] in a way only the killer could describe," Horan said, with Malvo's voice resounding through the still courtroom. The recording had an eerie cockiness, punctuated by odd chuckles, as the defendant said of the shootings, "They're all easy; they're not hard."The Defense countered with an argument that Malvo couldn't have possibly made the shot he is accused of taking and that he was completely under Muhammad's control the entire time.Apparently, the Defense attorney was losing his voice during his argument:
At one point, as Malvo's voice described the collapse of sniper victim Pascal Charlot in the District on Oct. 3, 2002, a transcript of his words was posted on a large screen. Fairfax homicide detective June Boyle asked him where Charlot was hit, and Malvo responded, "Chest shot." As he did, a larger-than-life autopsy photo of Charlot's fatal chest wound appeared beneath Malvo's words on the screen.
At first, Malvo listened to Horan's argument with his head bowed as photos of the sniper victims flashed above him. But soon, he returned to his habit of sketching furiously on a legal pad and ignoring the proceedings, as he has done for long stretches of the trial.
Defense attorney Michael S. Arif began his closing argument walking back and forth in front of the jury box, both hands in his pants pockets. His voice raspy and weak from a cold, Arif told the jury that he didn't deny that Malvo was with Muhammad when Franklin was killed, but he said Muhammad took the shot that killed her.The prosecutor exercised the huge advantage he is given during trial of having the last word:
He said that the defense does not dispute that Malvo was involved in the shootings, but argued that killing Malvo would serve no purpose.
"Adding another life to that pile of death does not solve anything," Arif said. "It does not bring anyone back. It is just revenge. There is an old adage; if you are going to kill for revenge bring two shovels."
While Arif spoke, Malvo watched him from the defense table, his right hand resting on his chin. Horan fiddled with a pile of papers in front of him, appearing not to listen to Arif.
He stood and waved three handwritten letters Malvo sent to a fellow inmate in the Fairfax County jail in late summer and early fall this year.Now it's in the hands of the jury.
"If you fight them all the time they will always be looking at you," Horan, reading from Malvo's letter, said to the jury. "But if you never resist, when you do resist -- they will be caught by surprise, never expected it, wouldn't even dream you were capable of such cruelty, hatred, brains."
Here are transcribed portions of the closing arguments.