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The insanity defense worked for would-be presidential assassin John Hinckley Jr. It worked for Lorena Bobbitt, who cut off her husband’s penis. It even worked for Dan White, whose lawyers invoked the infamous “Twinkie defense” at his trial for killing San Francisco Mayor George Moscone and city supervisor Harvey Milk. And now defense attorneys for teen sniper suspect Lee Boyd Malvo are hoping the insanity defense will work for their client, too. The chances of success, though, are slim. “It’s not what the public thinks — that you just say you’re crazy and you get off,” says Roger Groot, a professor at Washington & Lee University School of Law and director of the Virginia Capital Case Clearinghouse. “It’s very seldom raised in cases generally. And the legal standard is very strict.” Conventional wisdom holds that the insanity defense is the defense of last resort. Many observers believe Malvo stands little chance of an acquittal in the Oct. 14, 2002, murder of Federal Bureau of Investigation analyst Linda Franklin during the highly publicized shooting spree that terrorized the D.C. area last fall. Malvo faces the death penalty if convicted. It may not be surprising, then, that his attorneys have notified the court that they will “put in issue his sanity at the time of the crimes charged.” At best, the insanity defense is a crapshoot. By pleading not guilty by reason of insanity, a defendant is acknowledging he committed the crime. And defense lawyers caution that when the strategy fails in death penalty cases such as Malvo’s, there is the added risk that the jury has already rejected what would usually be mitigating evidence for the sentencing phase of the trial. According to the Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, only 1 percent of criminal defendants nationally raise the insanity defense. Of those, it is successful only 25 percent of the time. In Virginia, there is an average of 35 acquittals by reason of insanity per year. Most of those are by agreement with the prosecutors, says Richard Bonnie, director of the Institute of Law, Psychiatry, and Public Policy at the University of Virginia School of Law. Malvo’s court-appointed attorneys, Michael Arif of Springfield’s Martin, Arif, Petrovich & Walsh, and Richmond solo Craig Cooley, did not return calls seeking comment. The death penalty trial of Malvo’s alleged conspirator, John Allen Muhammad, began Oct. 14 in Virginia Beach. Muhammad is charged with murdering Dean Meyers on Oct. 9, 2002, and his trial is expected to last six weeks, overlapping with the scheduled Nov. 10 start date for Malvo’s trial in Chesapeake, Va. The sniper shootings traumatized the region and made headlines around the world. And the publicity surrounding Malvo could make defending him that much more challenging. The mythology about the ease of securing acquittals by pleading insanity may stem from a few notorious cases. Think Hinckley and Bobbitt. “You don’t remember the cases where there was a little blurb in the paper and the guy got 50 years,” says Groot, who is working as a consultant for the Malvo defense team and declined to speak about that case. The reality, however, is that the insanity defense usually fails, even in famous cases. Think of Andrea Yates, convicted of killing her children to protect them from Satan; and Jeffrey Dahmer, who murdered and dismembered 15 victims, some of whom he also ate; and heiress Patty Hearst, who served 21 months in prison for her role in a 1974 bank robbery. “Unless you have a bevy of doctors saying the guy had a brain tumor that had consumed his entire skull at the time of the incident,” juries generally reject the insanity defense, says Bernard Grimm, of D.C.’s Grimm, Petras & Wieser, who won an acquittal of second-degree murder charges by reason of insanity for Tomar Locker in D.C. Superior Court in 2000. Malvo’s attorneys are expected to argue that Malvo, 18, was in the thrall of the 42-year-old Muhammad, indoctrinated into a reality determined by Muhammad alone. There are no documented examples of Virginia cases in which a defendant was acquitted on insanity grounds using the argument that he had been brainwashed or indoctrinated. The legal standard for insanity in Virginia is particularly strict. Under state law, a defendant was insane at the time of the offense if he had a mental disease or defect rendering him unable to understand the nature, character, and consequences of the act and was unable to distinguish right from wrong. A defendant may also be found insane if he was driven by an irresistible impulse to commit the act. “The problem with indoctrination is that it doesn’t convert into any particular legal doctrine,” says Stephen Morse, professor of law and psychiatry at the University of Pennsylvania. “It didn’t work for Patty Hearst, and I don’t know that it could work [in the Malvo case].” According to Susan Fiester, a Chevy Chase, Md.-based forensic psychiatrist, much of the literature on indoctrination deals with the process that occurs when people are lured into cults. Part of the phenomenon, says Fiester, is that a complete belief system is imposed on the indoctrinated person. Important factors in Malvo’s insanity defense, potentially, are whether Muhammad has a belief system and whether Malvo adopted it wholly. Then it’s up to the jury. FITTING THE PROFILE Descriptions of Malvo’s life that have circulated since his Nov. 4, 2002, arrest fit many of the characteristics common to those who fall prey to controlling authority figures. By all accounts, Malvo’s childhood home life was unstable. His mother’s presence in his life reportedly was sporadic. And he seems to have had no permanent home. Muhammad arrived in Malvo’s life when the youth was about 14 and came to be his de facto guardian. According to court documents, Malvo referred to Muhammad as his father in conversations with investigators. Muhammad “indoctrinated” the boy, Malvo’s lawyers have said. As a strong father figure, the older man “could have had such an enormous influence on Malvo’s young, malleable mind that he only knew the reality Muhammad gave him,” Morse speculates. “It could be found to be the functional equivalent of a psychosis.” But prosecutors will likely use Malvo’s own behavior to argue that he was sane. At trial, Commonwealth Attorney Robert Horan Jr. “will undoubtedly highlight to the jury that Malvo evaded arrest for weeks, indicating that he had an appreciation that what he was doing was wrong,” says Joseph Bowman, a former Virginia defense attorney who is now assistant bar counsel in D.C. Andrea Yates’ 2002 jury conviction is a testament to juries’ resistance to arguments that multiple methodical acts can be the product of a deranged mind, Groot notes. “The fact of the matter is she killed five children, and she had to do it serially,” he says. “There was clearly a thought process going on. I think that what the public tends to do is to equate a logical thought process — however evil — with sanity.” The jury in Yates’ case rejected the death penalty and sentenced her to life in prison. If a jury decides that Malvo was insane at the time of the shooting, Virginia law mandates he spend 45 days in a psychiatric facility for evaluation. At the end of that period, the psychologist and psychiatrist assigned to him will recommend either conditional release, release with no conditions, or further inpatient hospitalization. Hospitalization is open-ended, and the court maintains jurisdiction over the matter as long as the state doctors consider the patient unfit for release. So slim are Malvo’s chances of acquittal, say many defense lawyers, that the real point of using an insanity defense in his case is mitigation. It could help keep him alive by avoiding the death penalty. And in capital cases, ethical rules require defense attorneys to raise evidence of any mental impairment, notes Harry Trainor Jr., who has been appointed to defend Malvo against any Maryland state homicide charges that might follow the Virginia trial. Trainor declined comment on the Virginia proceedings. DOUBLE-EDGED SWORD Although the publicity surrounding his case likely will hurt Malvo in the guilt phase of his trial, it could end up helping in sentencing. “You’d be hard pressed to find a potential juror who hasn’t already made up his mind about the guilt,” Bowman says. “There are things everyone already knows: He was a juvenile. It appears he was deeply influenced by Muhammad. And he was essentially homeless,” Bowman says. These things could augment the picture of insanity by indoctrination that would be a mitigating factor in deciding Malvo’s sentence. “The sentencing phase is going to be the important phase and where the attorneys are going to put their energies,” he adds. Indeed, juries don’t always reject insanity evidence in both the guilt and sentencing phase of death penalty trials, says Trainor of Upper Marlborough’s Brennan, Trainor, Billman & Bennett. But he warns that “a lot of strategic thinking” should precede any insanity defense. “The complete insanity defense is very difficult. Having found that someone actually committed a murder and then find them not responsible for it is difficult. And it is rare, but it can happen.” Says Blair Howard, one of the lawyers who secured Lorena Bobbitt’s 1994 acquittal by reason of insanity: “Respectfully, I don’t think he has a prayer on insanity. I believe, however, that it could be very powerful and very compelling mitigation that could save him from the electric chair.”

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