Merry Christmas, Lee Boyd Malvo

malvo sniper trial prison jail sentence
In his commentary, CBS News Legal Analyst Andrew Cohen looks at some numbers - the date of the trial and Lee Boyd Malvo's age - and wonders about their impact on the jury's decision to spare the life of the convicted sniper. The sentence instead is life in prison without parole, but Cohen predicts more legal fireworks in the not too distant future.

Merry Christmas, Lee Boyd Malvo.

As long as you live, you will never get a better or more valuable gift from a group of strangers than the one you got two days before Christmas 2003. Although you coldly and cruelly shot all those people last fall, and although you bragged about your crimes once you were arrested, your jurors found in their hearts and minds a degree of sympathy and compassion for you that you probably didn't deserve and certainly didn't expect. You were given the gift of learning, at the fulcrum of your life, that people are capable of extraordinary mercy and kindness at great expense to themselves. You, Lee Malvo, are George Bailey. You haven't had a wonderful life but you've just lived a wonderful day.

Your jurors gave you the gift of life even though you are technically more culpable than the older sniper, John Allen Muhammad. So count your lucky stars that you aren't on death row with Muhammad. Your jurors gave you the gift of life even though you laughed about your victims. They gave you the gift of life even though you showed no remorse during the trial and no inclination to behave behind bars. They declared with their guilty verdict last week and again with their findings today that they find you reprehensible and yet they still found your life worth sparing. They gave you a gift even though they surely knew that they would forever be criticized for it. Think about that if you are still alive on Christmas Day, 2013. Think about what's just been given to you and what you have given to society in your short span on this earth. Good will toward men? You got your share and more today.

Your lawyers, too, gave you a gift you will never ever be able to repay. They fought like wildcats to ensure that you could get as fair a trial as possible in the circumstances. Then they figured out a way to use the insanity defense not to gain you an acquittal - even they knew that wouldn't fly - but to be able to educate jurors from the start of the trial about your miserable childhood and your awful life choices that stemmed from it. As long as you live, and as many other sniper trials as you now will surely face, you will likely never again be represented by lawyers who match the quality of men like Craig Cooley and Michael Arif. Right now you owe your life to Cooley, especially, for the way he connected with jurors and made them think more broadly about their roles in the system.

While you are at it, you ought to send a holiday card to your trial judge, too. Fairfax County Court Judge Jane Marum Roush didn't simply roll over and permit prosecutors to overwhelm jurors with emotional evidence. From her ruling to keep cameras out of the courtroom to her decision to move the venue of the case to Chesapeake, Judge Roush was willing and able to ensure that you had a fighting chance. She gave you more fairly and justice than you ever gave any of your victims. She is not responsible for today's result but she is responsible for showing that prosecutors who try to shop around for the best venue in which to try a capital case don't always win in the end.

Speaking of your prosecutors, for them Christmas 2003 will be a grim holiday. In his quest to put you on death row with your "father," John Muhammad, Commonwealth attorney Robert Horan was done in by three things - bad timing, your baby face, and your awful life. The bad timing came in the form of the need for capital deliberations during Christmas week, which Horan conceded on Tuesday didn't exactly help Virginia's cause. You, Lee Malvo, simply lucked out that your jury was forced to make a life-or-death decision about you during a season when people take stock of their lives and otherwise think of sacrifice and forgiveness. If today were June 23rd, I suspect your jury still would be deliberating your fate.

I don't know if Horan worried when the trial began back in early November that your jurors would be deliberating your fate two days before Christmas. But he should have. And he could have done something about it. He could have cut his case short and then pushed the defense to finish its case more quickly. But he could not have put on a stronger case against you and surely you know in your heart that today's result has nothing to do with any weaknesses in the evidence against you. And, even if Horan could have gotten out from under the Christmas deliberations quandary, he surely could do nothing about your looks.

You, Lee Malvo, are fortunate enough to look five years younger than you actually are. Your baby face saved you today. Every time jurors looked at you they saw a boy, not a man, and certainly not a killer. Your face thus fit perfectly with the defense theme that you are just a child whose miserable early life made you vulnerable when Muhammad happened upon you. If you looked older - or even just your actual age - that defense still might have worked. But the fact that you look 13 obviously didn't hurt you. So Merry Christmas, young man, your God-given gift of youth and youthfulness spared you today.

But enjoy it while you can, Lee Malvo. Christmas 2003 is likely to be the happiest Christmas you'll ever again enjoy. Today's result practically guarantees that you will be tried again, particularly in Alabama, where you can again face a capital charge or two. You won't likely find similar generosity during your next trial. By then you likely will look older and your next prosecutors almost certainly will avoid a holiday-time trial. You won't have Cooley to bail you out next time, either. You see, the gift you've been given isn't necessarily a gift that keeps on giving.