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Criminal Justice Magazine
Spring 2004
Volume 19 Number 1

Juvenile Justice

Malvo Closing Argument

Robert E. Shepherd, Jr.

Robert E. Shepherd, Jr., is emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section's Juvenile Justice Committee.

NOTE: The following is an edited transcript of the closing argument by defense attorney Craig S. Cooley in the December 2003 penalty phase of the capital murder trial of Lee Boyd Malvo, who, along with John Muhammad, was responsible for the sniper shootings that terrorized the Washington, D.C., area in 2002. Malvo, who was 17 at the time of the crime spree, was tried in Chesapeake, Virginia, for a murder in Fairfax County. Federal prosecutors chose Virginia because it is one of only 21 states that allows for the execution of persons who were juveniles when they committed their crimes. Two other convenient possible jurisdictions-Maryland and the District of Columbia-do not. A jury found Malvo guilty of capital murder, and sentenced him to life imprisonment without possibility of parole. At least one juror stated in a CNN report that it was the impassioned closing of defense attorney Cooley that swayed a critical number of jurors to hold out against a death sentence.

May it please the court. For those of us who are parents or grandparents, and certainly for those of you who are entrusted with schoolchildren . . . now or in the past, and those of you who have been entrusted with parishioners, we all know that our greatest concern for our children, our greatest worry, is who our children will come to associate with. And our worries are greatest not when those children are nine, 10, and 11, or when they are two, three, four, five, and six . . . our greatest worries are when they get to be 15, 16, and 17 because that's the point in time where they begin to search for themselves. It's a time that makes them the most susceptible to peer pressure and to outside influence. It is a point in time where they are the most vulnerable.

The persons we are today . . . who each of us is today, is not of our making. It has much more to do with those folks who helped to shape us. If we're fortunate, really fortunate, we've had two parents, or at least one loving parent, to nurture us, to protect us, to teach us, and to be constants in our lives, both in their physical presence and in their consistency.

We are shaped. There's no such thing as a self-made man or a self-made woman. We cannot write or paint our own histories in the first person. We cannot describe our own lives without describing our interactions with other people.

Many of us still see ourselves and gauge ourselves by who we were in high school, what kind of athlete, what group we hung with, what friends we made, what our status was then. Those were the formative years-15, 16, 17, and 18. And yet many of us . . . still gauge ourselves through that. Our human intercourse defines us much more than our genetics. Our minds and our hearts are inevitably and inextricably entwined with those around us who we either trust or we fear, we love, or admire, or fall prey to. So it is with us, and so it is with Lee Malvo.

Children are not born evil, and when they commit evil acts, you can almost always trace those acts to the influences and acts that have been performed against them. And almost always those are acts and influences that precede any transgression by that child. As are we all, Lee is a product of his environment. Now, in the course of this trial, I hope that you have been able to see and come to know that Lee was uniquely susceptible to becoming attached to a father figure in the charismatic personage of John Muhammad. Lee's childhood was one of abandonment-ripped from the father that he loved, Leslie Malvo, at age five-and-a-half to be moved and moved and moved again. And by age 14, he had attended 10 schools and had almost an uncountable number of caretakers. And unlike some who have had frequent moves in schools . . . and moved around, Lee had no parent whatsoever. Some who move around have the benefit of a guiding and loving parent-not so with Lee. Lee's mother was abusive, and she was absent, and she returned only to uproot him again and again-to move him, to abuse him again, and then leave again. She denied him a father, and every time he began to form a bond . . . [with a father figure], Una James severed the tie and moved him again. And by the time she abandoned Lee in Antigua, where he had absolutely no family base or support system, he was desperate for a father. He was, in a phrase, "ripe for the picking."

There's . . . a quote by Mother Teresa. . . . It says: "One of the worst diseases is to be nobody to nobody."

Lee saw John Muhammad and came to love in him, not an evil man, but a loving parent; a man who was good to other children, a man who went out of his way to do kind things for people. Lee did not attach himself to some evil personage. Lee saw John Muhammad as a provider, as a person who lavished attention on him for the first time in his life, and a man whose boasted military expertise and exploits in the special forces seemed consistent with his military bearing and his physical fitness.

You heard from Mildred Muhammad. She said John was a magnet for children. You heard from the Douglases where John Muhammad brought Lee to live in their home, and from "Yellow" Jerome Martin and his wife, Leonie Martin, from Antigua. And they all describe John Muhammad as a pied piper-that he had an attraction that brought children to him, and none more so than Lee. Remember that when he took Lee physically into his home and into his family, John Muhammad gave the appearance to all-to mature adults as well as this impressionable 5-foot-3-inch child . . . all thought he was a man of kindness and had many admirable traits. Lee's adoration of John Muhammad was justified, and there was no way for Lee to know that far into the future Muhammad's obsession with the loss of his children would metastasize into serial murder.

How quickly Lee fell prey to that indoctrination is clearly a function of his susceptibility. In the first two months that he knew and lived with John Muhammad, he Americanized his dialect, he eliminated even a hint of his Jamaican accent; he converted from a Seventh Day Adventist. And you heard from Rev. King his commitment to the faith. His commitment to Christianity was such that Rev. King didn't doubt it in the least. He walked two miles to the baptismal service carrying his clothes so that he could look good and be respectful in that service.

He converted . . . within two months to whatever particular sect of teachings of Islam that Mr. Muhammad had for him. And all of that was done to imitate and to emulate and to impress the man that called him "son" and invited him to call him "dad." When John Muhammad delivered Lee to the promised land of the United States and offers adoption to him and the wonderful educational opportunities that this country and particularly Bellingham High School had to offer, he had demonstrated his constancy to Lee, something never before in Lee's life. And still there was not the slightest suggestion of what was to come. By the time Lee came to Bellingham, Washington, the training and the desensitizing to firearms practice and all that went into it began.

Lee's devotion, his indoctrination, indeed . . . his "idolization" of John Muhammad was absolute. Why wouldn't he accept lock, stock, and barrel these teachings of social injustice, of social misdeeds by the government? Why wouldn't he accept what Mr. Muhammad had to say to him when every single thing that Mr. Muhammad had promised him before had come true? Mr. Muhammad had delivered. "Word is bond," and the degree of that indoctrination is such that in spite of efforts and in spite of time, there will be relapses. There will be times when Lee returns to that questioning and that indoctrination. That's what the experts told you. . . . [They] said relapses are quite common. It's not something that is going to happen overnight. You take John Muhammad away from Lee, and suddenly Lee's entire thought process from the indoctrination of two full years, from age 15 to 17, simply changes overnight? It doesn't. John Muhammad's powers of persuasion have been commented on to you by a great number of witnesses, but none more eloquently than his older son, Lindbergh Williams [taken in by Mohammad when he was 11 and only returned to his mother after she filed suit] He said, "My father has a way of getting into your head. He convinced me that I had been abused and rejected by my mother and that I should now reject her and stay with him. And if my mother had not been a strong woman, if my mother had not fought for me, then it would have been me rather than Lee Malvo in that car with John Muhammad in October of 2002." What a precursor of what happened to Lee. What a predictor.

The Commonwealth will say to you this child is intelligent. They will say to you he's very intelligent. He should have known better. But remember the testimony of their expert, Dr. Evan Nelson. Intelligence does not equate to judgment. Intelligence does not equate to maturity. He told you about the work that was done at the National Institute[s] of Mental Health. You may have seen it on the front cover of Newsweek a year or so ago. It had a picture of the juvenile brain. It's called brain imaging. It's hard science. That shows that the juvenile brain is different. And when you are like me, if you're a parent and you have teens and adolescents and they do something that you say is so foolish that it defies common sense, and you say, "What were you thinking when you did that?" Well, science has answered that question for us, because the frontal lobe of the juvenile brain is not developed. It's the CEO of the brain, as Dr. Nelson testified. It is the portion of the brain that gives us our judgment, and it doesn't fully develop until we're into our early 20s. It certainly is not fully developed at 15, 16, and 17, and that's why we, as a society, have chosen not to grant full responsibilities . . . to teenagers. We don't give it to them when they're . . . even 19 or 20 in some circumstances. As a society, we have elected to say that children have not had sufficient life experiences, training, and development to understand and appreciate the consequences of their acts. So we've barred them from voting, from sitting on a jury, from gambling, from purchasing cigarettes, or drink[ing], or obtaining alcohol.

Lee was 15 when John Muhammad took him in and he was 17 in October of 2002 when these events occurred. At that point, he was four years from, according to our societal policies, being able to even buy and drink one beer. He was 17, and until he achieves the age of 21, that would have been impermissible. Why? Because we understand that his judgment and maturity are not sufficient for him to be charged with that responsibility. But there's a terrible incongruity in all of this, because in this long list of things that we've made that 17-year-olds are not responsible enough to do, we didn't include their execution.

We live in a society that force feeds violence upon our children-[o]n TV, in movies, and in video games. . . . You had . . . the opportunity to see some of that. . . . It was traumatic. We glorify vengeance, and we glorify violent response to violence. We teach our children that justice is vengeance and retribution, and we forget to tell them that compassion and love are the counterweights on the scales of justice and together that they merge to form the concept of mercy. While vengeance and retribution are the measures of our resolve, compassion and love are the measures of our humanity.

There's a [q]uote of Dr. Martin Luther King, Jr., in which he says: "Darkness cannot drive out darkness. Only light can do that. Hatred cannot drive out hatred, only love can do that." The acts are despicable; the child is not. The acts are beyond redemption; the child is not. It is easy for us to love the lovable, but it's a test of our humanity to condemn the act but love the child. And that's the challenge here today: To love a child who has been led to participate in despicable acts by the deluded mind of a 41-year-old man who [the child] had come to trust and to idolize. Compassion and love do not require us to refuse to punish, but rather to temper the harshness of that punishment. When we measure culpability, blameworthiness, does anyone believe that Lee led John Muhammad, or that John Muhammad was not the controller throughout these events?

Children-adolescents-are responsible for their acts, but they are not as responsible as mature adults. The choice here for you is not one of death or no punishment. The choice for you today is not death or freedom. The choice here is whether to take a human life or sentence this youngster to a lifetime of imprisonment, for his society, [so] the potential of future dangerousness is limited to what movement he gets in the super-max prison within the Department of Corrections of Virginia.

The Commonwealth has found not one act of violence or cruelty by Lee directed at any human being before he came into contact with John Muhammad. Indeed, the evidence is clear that Lee was kind and sweet. He was giving even when he was impoverished. He would give money to other students who didn't have money for their own lunch and go without, and he did all of that in the face of intense loneliness.

It's difficult for me to believe that anyone who has sat in this courtroom through the trial could believe that, absent the intervention of John Muhammad . . . this 5-foot-3 child . . . would have ever harmed . . . any soul in the country (or even been in the country) or in his homeland of Jamaica.

In ancient times, execution was a participatory act. Each member of the jury would go and arm themselves with a stone, and then they would hurl it into the head or body of the defenseless accused. And after it was over, each would retrieve their stone, and it would be soaked with the blood of the condemned. You are not holding it, but you can feel the weight of the stone. This stone has no humanity. This stone is ungiving. It is unfeeling. This stone has no compassion. And once it has been cast, it has no ability to temper its impact. And after you have cast it, you can feel on your fingertips the grit of the stone, and you know you've thrown it.

The Commonwealth urges you to vote to kill, to stain your stone with the blood of this child. The prosecution urges you to take up the stone. Your humanity challenges you to let the stone lie. A sentence of death requires unanimity. That means in order for an execution to occur, each of you must actively participate or, worse, acquiesce in that decision. I beg each of you to consider and hold onto your conscientious beliefs.

You've heard the story of Lee Malvo's life, and it may be two lives within one. The mitigation in the case cries out to you. Don't be swayed by the voices of vengeance and retribution, but hold on to your conviction. For your deliberations will last maybe minutes, maybe hours, maybe a few days, but the death penalty will last not only for Lee's abbreviated life, but for the rest of our lives as well.

Some of us in this room . . . have participated in capital cases before, and there're not a lot of things I can tell you about [it] with certainty. But one that I can tell you is that our conscious minds will bring us back to this courtroom on many days for the rest of our lives. When it does, will your fingertips feel the grit of the stone, or will your heart recall your exercise of compassion?

You heard a witness for the Commonwealth testify, in effect, that some children are just born bad, that children are not affected by what we do to them. They simply choose to do wrong. Every tenet of my faith and every fiber of my body rejects that concept. Every person, certainly every child, has good within them, and every person has worth and every person is redeemable. If you attend the candlelight service two nights from now on Christmas Eve, if your church is like mine, the last hymn they sing is Silent Night, and you pass the light from one candle to the next. Listen to the third verse when you sing it. It contains the phrase "radiant beams from thy holy face, with the dawn of redeeming grace." There is grace, and there is a redeeming grace, and it will come to Lee, if his life is . . . allowed to continue.

Every life is precious-certainly the lives of the innocent people who were lost by the delusions of John Muhammad-and so also is precious the life of Lee Malvo. What lesson does the Commonwealth seek for us to send to our children when it urges us to kill this child to teach them that killing is wrong? Our children should know, and Lee should know, that when you commit terrible acts that there is terrible punishment to follow. There are consequences, but you and I need to remember that the two greatest qualities we as human beings possess are compassion and love, and it is by our exercise of those that we all ultimately will be judged.

As Una James did far too many times, Lee's life is about to be put in the hands of others. We're about to entrust the life of this child to you, and in a very real sense, you are the last of the very long line of caretakers. I ask you to exercise your compassion and your mercy. Temper the punishment that you choose. And as Una James did with all of the caretakers that she gave this child to, I leave you with a phrase. It's a phrase that both invites you to mete out punishment [and] . . . temper it; to draw the line short of the ultimate penalty. . . . "Punish this child; save the eye."


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