I Was Brainwashed!

If Muhammad’s guilty is Malvo innocent?

Guilty by remote control

Following six hours of deliberation, the jurors in the trial of John Allen Muhammad—the elder member of the alleged D.C. sniper team—found him guilty on all four counts charged, making him eligible for the death penalty. To find Muhammad guilty, the jurors needed to accept a slightly counterintuitive proposition: that Muhammad—who never touched a gun as far as we know—was so in control of his youthful accomplice, Lee Boyd Malvo, that the boy himself was the murder weapon. The jury had to have believed that Muhammad’s act of instructing and assisting the boy in the killings was tantamount to pulling the trigger himself. This theme was sounded explicitly in closing arguments at Muhammad’s trial when Paul Ebert, the lead prosecutor, described Muhammad as having molded Malvo into “an instrument of death and destruction.” It’s hard to accept that any one human can so manipulate another, but the Muhammad jury bought it.

This theory, of course, dovetails perfectly with the insanity defense being proffered in Malvo’s capital murder trial—which opened last week 20 miles from Muhammad’s in Virginia Beach, Va. Malvo’s attorneys are also arguing that the boy was a mere puppet, too under Muhammad’s sway to be held responsible for his actions. The prosecutors there argue that he was a free agent. This perfect mapping of the prosecution theory in Muhammad’s trial onto the defense theory in Malvo’s is troubling: Can both perpetrators be found guilty if only one prosecution strategy can logically be correct?

To put the question more urgently, can and should the guilty verdict in Muhammad’s trial exonerate Malvo? Doesn’t the Muhammad verdict definitively mean that, yes, Malvo was manipulated and used? As a legal matter, the Muhammad verdict can have no effect on the Malvo trial. They are, after all, being tried for two different killings—Muhammad for the murder of Dean Harold Meyers at a Manassas gas station; Malvo for the murder of Linda Franklin outside a Home Depot in Falls Church (although in fact evidence of all the killings is crucial to both murder charges, and both are effectively being tried for all of the sniper attacks in the D.C. area). Lawyers in the Malvo trial should not be able to use the Muhammad verdict as evidence, and the judge must admonish the jurors not to consider it in their deliberations. There is, moreover, no burden on Virginia prosecutors to offer consistent theories over the different cases. Still, the question remains, as a moral, if not legal matter, whether we can justify taking two lives based on two irreconcilable theories of the case. Can Muhammad die for manipulating Malvo, while Malvo dies for being a free agent?

More likely what will happen is that both juries will achieve a single and somewhat just end by accepting both versions of the truth, and neither. Ultimately this will result in a sort of loose legal equilibrium—with the jurors partially nullifying in each case—fudging the law on the margins to hold the elder sniper more responsible, which makes intuitive, if not legal, sense.

At bottom, both trials address questions of agency and manipulation, with both prosecution teams asking jurors to consider the boundaries of human influence over others: Who is responsible for our actions? Are children more readily influenced than adults? In one case, Muhammad’s agency was assumed by the jurors but never proved. In the other, Muhammad’s agency may well be proved but may still be legally irrelevant to an insanity defense.

Muhammad’s trial was ultimately about whether one can be a “virtual” triggerman. Putting aside the one capital charge in the case—allowing capital punishment where the perpetrators spread terror and extorted money—Virginia law generally provides that to be guilty of the second capital murder charge—for multiple killings over a three-year period—one has to be the actual “triggerman.” In Muhammad’s case the prosecution urged, and Judge Leroy Millette Jr. agreed, that it was enough that he was the “captain” of a “killing team.” Interpreting the Virginia “triggerman” rule so broadly that Muhammad’s Chevy Caprice itself was essentially deemed the murder weapon, Judge Millette ruled that it would be enough for jurors to find Muhammad guilty as a “principal in the first degree.” Whether that means that every getaway driver in Virginia is similarly eligible for the death penalty will eventually be a question for the appellate courts. The result in this trial was that the jury was instructed that Muhammad could be found guilty without ever having fired a shot.

The mistake made by Muhammad’s defense team was in believing that this question of agency had to be proved by the prosecution. After mounting a virtually nonexistent defense case—consisting of five witnesses over three hours—Muhammad’s defense counsel rested with the seemingly winning argument that the mounds of physical evidence in this case proved primarily that Malvo was guilty. Malvo’s prints were on the rifle, Malvo’s DNA evidence was at the scene, Malvo was spotted by witnesses. Muhammad was tied to the car but not the murders. In his closing arguments, defense attorney Peter D. Greenspun thus insisted that virtually no evidence of Muhammad’s supposed influence over Malvo had been offered or proved. His argument: You can’t convict Muhammad of manipulating Malvo without showing that manipulation. To find Muhammad guilty, the jurors either had to ignore that argument or find it was enough that Muhammad owned the Caprice. Somehow, the Malvo-as-puppet theory won the day without really having been proved.

The Malvo trial will more explicitly address the nature of the relationship between Malvo and Muhammad. After all, the physical evidence—along with Malvo’s taped confession—means he cannot claim Muhammad was the triggerman. But whereas the Muhammad prosecutors simply asserted that Muhammad was in control of this killing team, Malvo’s lawyers will need both to prove it and—to achieve a not guilty by reason of insanity verdict—to prove that Malvo had no agency at all; that he didn’t even know right from wrong. This is a tough defense; one that virtually never succeeds, and one that strains credulity where, as here, the boy’s chilling and detailed confession suggests a perfectly sound mind. As hard as it was for Muhammad’s prosecutors to prove Malvo a puppet, the Malvo defense will have to work even harder to prove that he was so indoctrinated as to be legally “insane.”

The defense team in the Malvo trial is nevertheless hoping for a mirror image of the Muhammad result: that the jury will disregard the actual letter of the law enough to save the boy’s life and blame the adult. By introducing evidence of Malvo’s alleged insanity twice—at the guilt phase and again at the sentencing phase—defense attorneys will have two bites at this emotional apple; two chances to appeal to the jurors’ visceral unease over killing a juvenile. There is, in fact, no such legal creature as a brainwashing defense, and Malvo’s claim to legal insanity is tenuous; the only purpose of this defense is to call Malvo’s agency into question just enough to unsettle the jurors about killing him.

In the end, then, Muhammad may lose and Malvo may “win” through strategies that have little to do with the law as written. In both cases, Muhammad may be assumed puppet master simply as a proxy for the general sense that he is more culpable than the boy. And while it’s not very believable that Muhammad was so in control of Malvo that the boy lost all free will and agency, the legal fiction will likely prevail across both trials to achieve a somewhat just result. Depending on what happens in the Malvo trial, and at both sentencing hearings, at the end of these two trials we may witness a result that is not precisely legal but nevertheless probably fair: Muhammad will be executed for murders he never quite committed, and Malvo’s life may be spared for murders he blatantly committed, because of an intuitive emotional consensus that he was not fully culpable as an adult. It is a cliché that the law is a blunt instrument. What we forget is that juries are quite subtle.