Malvo has only two things going for him: his baby face and the sheer implausibility of the notion that a young man would or could be more evil than his mentor. But those two factors aren't likely to be nearly enough to allow him to avoid a conviction and, most probably, a death sentence. Not only do Malvo's prosecutors have a reasonably strong circumstantial case against him, they also hold a trump card that the prosecutors of the older sniper suspect, John Allen Muhammad, did not. Unlike Muhammad, Malvo severely incriminated himself after his arrest, saying things to law enforcement officials that are likely to shock his jury into furious anger toward him.
We'll see in the Malvo trial a reply of sorts of what we already have seen in the Muhammad trial. Like their counterparts in Virginia Beach, Malvo's prosecutors in Chesapeake will try to link the defendant to Muhammad and then try to link the pair to as many of the sniper shootings as possible. Jurors will be inundated with emotional testimony from eyewitnesses and surviving victims. There will be scientific and physical evidence that prosecutors say links the men to the weapon they allegedly fired and to the scene of many of their crimes.
But there will be some important differences, too. Think of the Malvo trial as a negative image of the Muhammad trial. Whereas Muhammad's prosecutors portrayed him as a modern-day Al Capone, Malvo's prosecutors will tell their jury that it was Malvo who was the muscle of the sniping operation. And whereas Commonwealth attorneys were conspicuously silent about who actually killed Dean Meyers, the victim in Muhammad's case, Commonwealth attorneys will almost certainly tell Malvo's jury that it was the young man himself who fired the shot that killed Linda Franklin, the victim in whose name the Malvo case has been brought.
And then there is perhaps the most important distinction between the two trials. Whereas all Muhammad's jurors heard from him was a terrible opening statement and a few lame witness examinations, all Malvo's jurors will hear from Malvo will be some of the horrific things he said to his captors last fall. If Muhammad was able to humanize himself during his short stint as his own attorney by being polite and courteous, surely Malvo's own statements have a demonizing effect. It doesn't matter how young and sweet Malvo looks: a fellow who apparently kills a man who is mowing his lawn and then laughs at the sight of the pusher-less lawnmower moving down the street is hardly the type of man who is going to generate sympathy with any jury, even the aforementioned Durst jury.
Malvo's attorneys will try to explain away their client's post-arrest comments to authorities as unfounded braggadocio from a young man who even after his arrest was trying to impress Muhammad, his putative father figure. This theory may or may not prove true. Clearly, there are issues between Malvo and Muhammad that even the most earnest attorneys and doctors (not to mention judges and jurors) won't be able to figure out any time soon. And, clearly, whatever tiny chance Malvo has of avoiding a capital sentence rests on whether even a single juror is going to buy into the dubious notion that one man can make another man, even a young, impressionable man, kill ruthlessly and efficiently but without any criminal intent.
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.
You don't have to buy the defense theory — I would be astonished if the jury does — but it may be the best explanation any of us are likely to get for what happened and why last fall.
By Andrew Cohen