Sniper Trial: Lee Boyd Malvo
Jeralyn Merritt
Criminal Defense Lawyer
Monday, November 10, 2003; 3:30 p.m ET
The murder trial of sniper suspect Lee Boyd Malvo begins Monday, Nov. 10, in Chesapeake, Va. He is charged with capital murder in the Oct. 14, 2002 slaying of Linda Franklin at a Home Depot parking lot in Seven Corners. His lawyers have indicated that they will pursue an insanity defense, arguing that the teenager was brainwashed by John Allen Muhammad.
Criminal defense attorney Jeralyn Merritt said in an interview with washingtonpost.com that jury selection in this case is absolutely critical for three reasons: the heinousness of the crime, the fact that Malvo was a juvenile when it was committed and that the death penalty looms as a verdict.
Merritt was online Monday, Nov. 10 at 3:30 p.m. ET to discuss the process of jury selection.
Merritt is an attorney in private practice and was one of the principal trial lawyers for Timothy McVeigh in the Oklahoma City Bombing Case. She is also treasurer of the National Association of Criminal Defense Lawyers and serves on the American Bar Associataion Criminal Justice Selection Council. She lectures nationally on a variety of legal topics and has been a television analyst since 1996.
A transcript follows.
Editor's Note: washingtonpost.com moderators retain editorial control
over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
Mt. Lebanon, Pa.:
Is Malvo a dead duck and we're all just "going through the motions" or is there some slim chance he could get a fair, impartial trial and manage eventually to walk out the front door a free man? Even if he pleads mentally unbalanced, he could walk out of the shadows one day - others do.
And if it is just a show trial, what's the rationale behind dragging the whole thing out?
Thanks much.
Jeralyn Merritt: There is virtually no chance Malvo will not walk out a free man. If he is found not guilty by reason of insanity, he will be committed to a mental institution. This happened to John Hinckley who was charged with shooting then President Ronald Reagan.
It is not just a show trial. It is a trial at which a teenager’s life is at stake. The defense needs to find at least one juror who will be unable to vote for death in the event of a conviction.
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Millerville, Md.:
With Malvo pleading not guilty by reason of insanity, what will the prosecution have to prove to consider him sane or does the defense have the burden of proof to consider him insane.
Jeralyn Merritt: Malvo’s lawyers have to prove he did not understand the difference between right and wrong. They will try to show that he did not understand the nature and consequence of his actions. They will also try to show that was unable to resist committing the acts due to the influence and mind control that Muhammad held over him.
Insanity defenses are very tough to prove. The defense will have an uphill battle, but they are on a dual track here. In the event the jury does not go for the insanity defense, the defense will try to convince the jury to vote against death.
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Harrisburg, Pa.:
An attorney I know has stated that jury selection is very important. While some attorneys attempt to select jurors who file profiles of people inclined to support their side, he argues the most important aspect of voir dire is to find jurors who seem to respond well to him personally. If you find jurors who seem to connect to an attorney, he believes it makes winning the cases easier. Plus, in criminal cases, you only need one juror to at least create a hung jury.
Is picking jurors by profiling overrated? Do you believe if jurors seem to initially connect with one attorney, they are more likely to ultimately favor that attorney's arguments?
Jeralyn Merritt: Selecting jurors is more of an art than a science. During voir dire, or the questioning process, we want to hear the prospective jurors' beliefs and attitudes about a variety of issues. Sure, it is nice if some bonding goes on between the prospective juror and the lawyer, but I don't think that is as important as whether the juror is likely to bond with the intended defense arguments. The defense will use the voir dire process to try and identify jurors who might vote for life if they convict Malvo of the underlying crime--and to introduce their theory of the defense, that Malvo was so under the spell of Muhammad that he could not exercise independent judgment.
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Arlington, Va.:
I suppose my question is asking you to read minds, but do you think that Malvo's attorneys are going with an insanity defense essentially to change the entire trial into a penalty phase? In other words, they have no expectation that a not guilty verdict is possible, but this way they can bludgeon the jury with enough information on his state of mind for an extended period, and hopefully spare him the death penalty.
Jeralyn Merritt: Yes. By pleading not guilty by reason of insanity, the defense is essentially conceding that Malvo committed the charged acts. They don’t have much choice because the Judge ruled that Malvo’s admissions to the killings when being questioned by police are admissible. Thus, the goal is to save his life–either by having him declared insane at the time of the shootings due to the spell Muhammad cast over him–or by convincing the jury to sentence him to life instead of death.
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Fairfax, Virginia:
If Malvo pleads insanity, does he have to testify about what happened? Can the prosecution or defense doctors who examine him testify about whether he says he was the triggerman? Thanks.
Jeralyn Merritt: Malvo does not have to testify at his trial. He retains his Fifth Amendment right against self-incrimination. The Judge has ruled that his admissions to the police that he was the triggerman can be used against him. The psychiatrists will be allowed to testify about the details of their examination of him.
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Fairfax, Va. :
What if a juror answers all the questions that they are unbiased but the lawyer sees them glaring at the defendent, can they get rid of them? How?
Jeralyn Merritt: There are two ways for lawyers to challenge prospective jurors. One is for cause, where the juror has exhibited severe bias or prejudice or an unwillingnewss to follow law. This is a call the Judge makes after motion by either party. The other is called a peremptory challenge. This allows either party to excuse a juror for any reason--including, for example, your scenario of where a juror glares at the defendant or one of the lawyers. A peremptory challenge can be made for any reason, so long as it is not based solely on an impermissible factor such as race. Each side gets a set number of peremptory challenges.
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Fairfax, Va.:
Does a juror have any choice about whether to serve? Seems kinda rough to spend weeks out of work for a trial.
Jeralyn Merritt: In a long trial, such as this promises to be, the Judge asks the jurors at the outset if any of them will undergo a severe hardship if picked. The Judge, in her discretion, can excuse these persons from serving. But, no, absent a real hardship, a juror does not have a choice about whether to serve.
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Fairfax, Va. :
Do the jurors stay at a hotel while they are being picked? Are they allowed to talk to each other about the selection process?
Jeralyn Merritt: No, the jurors do not stay at a hotel while the selection process is taking place. After the jury is picked, the Judge can decide to sequester them. I don't think that will happen in this case.
Any prohibition against the jurors speaking with each other about the selection process would have to come from the Judge. If they filled out juror questionnaires prior to reporting today, or while at the courthouse this morning, they were likely told to answer the questions themselves and not discuss their answers with anyone else.
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Fairfax, Va.:
What would happen if they could not find impartial jurors? Does the Constitution say that someone could then go free?
Jeralyn Merritt: If impartial jurors could not be found, the venue, or place of the trial, could be changed to another county in Virginia. Another possibility would be for there to be an abatement of the trial--a postponement--until the publicity died down or passions in the community lessened. Just before the McVeigh trial started, we asked the Judge for a one-year abatement of the trial. The Judge said no.
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Washington, D.C.:
Is it safe to say that Malvo will be admitting to the murder because of his trial being based on reason of insanity? Whether insane or not, he would be admitting to taking someone's life.
If this is the case, what are the odds of him being tried for capital punishment is he loses the insanity trial?
Jeralyn Merritt: Yes, Malvo is essentially admitting his guilt to the charges by pleading not guilty by reason of insanity. He is saying he did it but he is not legally responsible. The trial will focus on Malvo's alleged indoctrination by Muhammad and his susceptibility to being indoctrinated.
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Annapolis, Md.:
What type of person do you think the defense will try to pick for jury selection? Will they be gearing toward a certain type of person to help their case?
Jeralyn Merritt: The defense will be trying to life-qualify the potential jurors. They will ask probing questions about the jurors' attitudes towards the death penalty, looking for those jurors who might vote for life if they find Malvo was not insane and is guilty of the charged crimes. They will be looking for jurors who will be responsive to their theory that Malvo was under the spell of Muhammad and less culpable than Muhammad.
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Washington, D.C.:
Could Malvo be acquitted because he was a minor and under the spell of a real mad person? And if he doesn't get the death sentence, will he serve jail time for the rest of his life?
Jeralyn Merritt: Malvo cannot be acquitted simply because he was a juvenile at the time of the crime and under the spell of Muhammad. If he is found guilty, the jurors will decide if he gets life or death. If he gets life, he will spend the rest of his life in jail.
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Arlington, Va.:
Can you expand a little on the standards for legal insanity? On all the TV legal dramas (which I realize are not necessarily a reliable source of information), the standard seems to be that the person has to be a raving, drooling lunatic to be insane. In other words, if he was able to dress himself and find his way out of the house, he can't have been insane. I'm guessing this isn't the legal standard.
Thanks so much.
Jeralyn Merritt: One does not have to be a raving lunatic to be legally insane. The test is whether one knows the difference between right and wrong. Can one appreciate the nature, seriousness and consequences of their actions?
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El Paso, Tex.:
Seems like the legal system is geared towards protecting the criminals instead of the victims! Now Malvo is the victim? What is the legal standard in Virginia that the defense lawyers will have to show that Malvo was insane? Is it when he did the crime or now or both? And how crazy does he have to be? Won't the prosecutors argue that not all indoctrinated people kill other people?
Jeralyn Merritt: The Bill of Rights was designed to protect the citizen accused of crime against the sometimes overreaching and awesome powers of the Government. It was not designed to protect citizens from individual actions of other citizens.
The relevant time period for the sanity defense is the time when the crime was committed, not now.
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Jeralyn Merritt: Thanks, everyone for your thoughtful questions and your participation. See you next time!
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