Sniper Suspect's Longshot Insanity Odds

Oct. 20, 2003 -- Insanity may be young D.C.-area sniper suspect Lee Boyd Malvo's best defense at his upcoming trial — but its success is still a longshot.

Earlier this month, defense attorneys for Malvo announced plans to use an insanity defense at his trial, scheduled to begin Nov. 10. Malvo faces capital murder charges for his alleged involvement with his older co-defendant, John Muhammad, in 13 sniper shootings in the Washington, D.C., area that left 10 dead and residents of Maryland, Virginia, and Washington, D.C., terrified.

Muhammad is being tried separately, and Malvo is expected to be at the court today when proceedings in that trial get under way.

In previous motions and hearings, Malvo's attorneys have argued that the 18-year-old was "under the spell" of 42-year-old Muhammad, who was said to be his mentor. At trial, the lawyers will try to convince jurors that Muhammad had brainwashed his young protégé to such an extent that Malvo was unable to determine right from wrong at the time of sniper attacks.

Experts say the chances of a jury accepting Malvo's arguments are slim, especially since most insanity defenses are unsuccessful. Studies have shown contested insanity defense have been successful in only 1 to 2 percent of the cases where it has been used, according to experts.

"Trying to convince a jury that somebody is not guilty of a crime because they didn't know right from wrong is just a hard sell, especially if you consider the crimes they're charged with," said defense attorney Steve Cron.

"A jury is not going to like the idea of letting someone off free or being let out of a mental institution after a short amount of time. They're not going to know the consequences — what sentence — a person faces but they're not going to like the idea of letting a guy go or a guy being able to walk out on the street in any way."

Inexcusable Crimes

That an insanity defense is most often associated with heinous crimes doesn't help its standing with jurors.

The more horrendous or horrible the crime, the more difficult it is to defend, even with insanity defenses. Jeffrey Dahmer used the insanity defense before he was convicted in the slayings and cannibalism of 17 people in Wisconsin.

Similarly, a Texas jury did not believe Andrea Yates' insanity argument and convicted her of capital murder in the drowning deaths of her children — despite the fact that she had shown signs of postpartum depression and psychosis before the killings.

"The insanity defense usually deals with crimes, crimes that are so horrendous, you must think, 'That person must have been crazy to have done such a thing,'" said Robert Bloom, professor of law at Boston College. "And then, because the act is so horrendous — because jurors are so offended by the act — they feel like there's no way they could excuse the act."

Some jurors just do not believe that mental health facilities provide the same kind of punishment — or as sufficient punishment — as life in prison or the death penalty.

Many jurors, some experts argue, mistakenly believe that if they acquit a defendant claiming insanity, the person will walk out of court free. Or they believe that if the person is placed in a mental health institution, he or she will be released after a short period of time and still pose a threat to the community.

Stories like that of former Detroit police officer Paul Harrington scare potential jurors. In 1975, while still on the Detroit police force, he gunned down his wife and two daughters. He was found not guilty by reason of insanity two years later when his lawyer cited severe depression and his traumatic experience in the Vietnam War. Harrington was treated at a psychiatric hospital for two months.

Harrington went on to kill his second wife and 3-year-old son 24 years later. But this time, a jury rejected the insanity defense and convicted Harrington of first-degree murder.

Advocates of the insanity defense argue that cases like Harrington's are not the norm and illustrate how mental illness can often go undetected or improperly treated. They say jurors do not realize that a person found not guilty by reason of insanity could spend as much time confined in a mental institution as a prison cell.

"Many juries don't understand that a person found not guilty by reason of insanity does not leave the court free," said Ron Honberg, director of legal affairs for the National Alliance for the Mentally Ill (NAMI). "They are confined to a mental institution until they are deemed no longer a threat to themselves and society. They could be confined as long — if not longer — than they would if they were convicted."

The Hinckley Backlash

In some states such as Texas, jurors in insanity cases are not told what will happen to defendants if they are acquitted, and some argue that contributes to reluctance to accept mental illness defenses.

This was so in the Andrea Yates trial, said one lawyer in the case.

"We found that many jurors believed Andrea would be released if they found her not guilty," said George Parnham, Yates' attorney. "They had no idea that she would have gone to a mental health facility, and the jurors needed to know that."

There has been a backlash against the insanity defense since John Hinckley used it in 1982 to win an acquittal for his attempted assassination of President Reagan. (Hinckley has never returned to the community. He remains confined in a mental institution to this day, despite numerous bids for his release.)

In 1984, Congress passed the Insanity Defense Reform Act, which shifted the burden of proof from prosecutors to the defense in federal cases. Previously, prosecutors had to prove the defendant was sane. But after the act's passage, defense attorneys had to provide evidence that their clients were insane.

Several states, such as Texas and Arizona, then revised their laws and narrowed the definition of insanity. Once, defendants in most states could be found legally insane if they couldn't comprehend the nature and consequences of their actions or did not know right from wrong.

But after the controversy over the Hinckley verdict, insanity only addressed whether defendants knew right from wrong at the time of their crimes. The insanity defense's already bleak chances of success became even dimmer.

"The legal standard in my state is so archaic, that we're talking about the times of the Salem Witchcraft Trials," said Parnham. "To Andrea [Yates], the voices she hears are as real as my voice is to you. Our standard in Texas fails to take into account that reality in a psychotic mind is totally different to the reality that you and I experience. Andrea did not have the capacity to make a decision over whether something was right or wrong."

Fear and Loathing in Insanity

There are rare victories for the insanity defense. In a 2001 bench trial in Arizona, a judge found Kelly Louise Blake "guilty except insane" of two counts of murder and attempted murder for setting fire to her three children in 1998. (Two of the children died. Blake also set fire to herself and was severely disfigured.)

According to NAMI, Arizona and Oregon are among the few states that have the guilty except insane provision. Under this option, defendants do not spend time in prison but are placed in a mental institution under the care of an independent agency that monitors their treatment for as long as their prison sentence would have been. They could be released from the institution, but only under very strict conditions.

So, instead of facing life in prison, Blake faces life under supervision at a mental institution. Vikki Liles, the public defender who represented Blake, realizes that her client's fate could have been much different if she had been tried by a jury, not a judge.

"I don't know what would have happened if she had gone before a jury," Liles said. "I'd like to think they would have been open-minded and examined and considered all the facts. But I just don't know."

Liles believes that part of the reason the insanity defense is so rarely successful is that mental illness is still generally misunderstood — and feared.

"Mental illness is still a shameful thing in our society. It's something that we can't put our arms around … that's very hard to be around and something we don't want to be around," Liles said. "It's something we fear and know that we'd never want to have. It's a terrible, terrible thing to live with and to be around. And when we hear that someone has committed a crime, we ask, 'What did they do? And when are they getting out?'"

The ‘Late-Blooming’ Defense

Lee Boyd Malvo will be first tried for the shooting death of an FBI analyst outside a Home Depot store in Virginia. Virginia prosecutors did not hide their skepticism when Malvo's attorneys announced their intent to pursue an insanity defense. Fairfax County Commonwealth's Attorney Robert Horan Jr. said reports from a court-appointed mental health expert working for the defense had never suggested any signs of insanity or mental disease.

"It says absolutely nothing about insanity," Horan said. "Apparently, it's a late-blooming insanity."

Arguably, the general public perceives the insanity defense with similar distrust. Some believe defense attorneys resort to the insanity defense even if there's no proof of mental illness and despite the legal strategy's difficulties.

"If there seems to be no doubt about a defendant's involvement in the crime — if there really is no doubt — and there seems to be nothing else, a defense lawyer has to hang his hat on what he can," said Bloom. "At same time, though, it is no wonder that juries can be suspicious of the defense attorney tactics."

Still, it remains to be seen how jurors will receive Malvo's insanity argument, especially after prosecutors present his alleged confession.

Jurors are also expected to hear evidence that he and Muhammad drilled a hole through the trunk of their car to enable them to fire at the victims while remaining concealed and taunted investigators with public warnings such as "Call me God" and "Your children aren't safe."

"In contested insanity defenses, many jurors cannot reconcile mental illness with how a person can still perform a series of complicated acts over a sustained period of time," said David Siegel, professor at the New England School of Law. "To them, it seems inconsistent with the actions of someone who's insane."

Defense attorneys, Siegel noted, may also try to use arguments on Malvo's state of mind to save his life if he is convicted of capital murder and faces the death penalty. Elements of his insanity argument would still be relevant in the death penalty phase of the trial.

Still, in either case, it may be difficult for Malvo to gain jurors' sympathy.

"Here you have a guy [Malvo] with a gun and a device set up in the trunk of a car seemingly with the same MO. That's not [the act] of someone insane," said Steve Cron. "That's something planned, well-thought out in advance. And it wasn't just one incident but a series of crimes."

"I don't know that it's [the insanity defense] his best bet. Since there's no question that he was involved in the crime, they [his attorneys] have nothing to lose," Cron continued. "Given the nature of the crime and the circumstances, his chances for success are virtually nil."