Father of Sniper Suspect Testifies for Son's Defense

New York Times/November 25, 2003
By Adam Liptak

Chesapeake, Va. -- On the day the man he once considered his father was sentenced to die, Lee Malvo, 18, watched his biological father appear as the first witness on his behalf.

Mr. Malvo did not yet know that John A. Muhammad, 42, had been sentenced to death in the sniper shootings in the Washington region when his father testified, Mr. Malvo's lawyers said. They said they would tell him about the sentence on Monday night.

The testimony of his father, Leslie, was rich in tearful reminiscences of a Jamaican childhood.

"Lee is my pride son," Mr. Malvo, a stonemason, said. "And I love him very much."

None of the three witnesses who testified in the first day of the defense case tried directly to refute the prosecution evidence. Much of that evidence, including three sets of what are apparently confessions, tied Mr. Malvo to the shootings.

His lawyers have said they will focus on him rather than the crimes even in the first phase of the trial, in which the jury will decide whether Mr. Malvo is guilty. The lawyers will try to prove that Mr. Malvo was brainwashed by Mr. Muhammad, who acted as his surrogate father.

That theory is similar to the one prosecutors in Virginia Beach used to obtain a death sentence against Mr. Muhammad. Those prosecutors argued that the older man was the captain of a two-member killing team.

The focus on background is quite different from the approach of Mr. Muhammad's lawyers. Evidence about his background and motivation, which the lawyers called mitigation evidence, was briefly presented in the sentencing phase of his trial.

"They have been somewhat hampered by their client's unwillingness to be cooperative," a lawyer for Mr. Malvo, Craig S. Cooley, said about Mr. Muhammad's lawyers. Legal experts said Mr. Malvo's lawyers had made a smart choice.

"It's a wonderful tactic," Andrew Protogyrou, a defense lawyer in Norfolk, said about testimony like Leslie Malvo's. "That's all mitigation evidence, and they're bringing it into court in the guilt phase."

Scott E. Sundby, a professor of law at Washington and Lee University in Lexington, said the two phases in a capital trial were not distinct. "The best criminal defense lawyers in death penalty cases," Professor Sundby said, "try to view the guilt and penalty phases of the trial as two acts of the same play, because you have the same audience."

The lead prosecutor, Robert F. Horan Jr., expressed dismay and impatience as the defense case started. He objected, for instance, to the introduction of photographs of a young Lee Malvo.

Leslie Malvo testified in a Jamaican patois so thick that a translator repeated his statements. He occasionally wept, wiping his eyes with a handkerchief.

"Lee was handsome, willing, obedient, very manageable, had a lot of manners," he said.

Lee Malvo was born in Jamaica and lived there and in Antigua until he was a teenager, when he met Mr. Muhammad and traveled with him to the United States. Leslie Malvo described his son's earliest years as happy ones, highlighted by baptism, lessons in kicking a ball and riding a red bicycle that his father bought and consuming quite a bit of ice cream.

Father and son met on Saturday in the jail here, their first encounter in eight years.

Lee Malvo is on trial in the killing of Linda Franklin, an F.B.I. analyst, on Oct. 14, 2002, in the parking lot of a Home Depot store in Falls Church.

The defense case is widely expected to consist largely of testimony about Mr. Malvo's early life. He was, his lawyers say, a poor, religious and obedient boy. The defense will also present mental health experts who are expected to describe Mr. Malvo as having been indoctrinated by Mr. Muhammad.

The jurors are instructed daily to avoid news reports about Mr. Muhammad's trial. But legal experts said the jurors would almost certainly learn the bare fact that Mr. Muhammad had been sentenced to death.

"It could cut both ways," said Jamie Orenstein, a lawyer at Baker & Hostetler in New York who worked on the prosecution of Timothy J. McVeigh in the Oklahoma City bombing. The prosecution here could suggest, Mr. Orenstein said, that equity and proportionality require a death sentence. The defense, he added, will "suggest that one death is enough."

In a police interview taped last November and played on Monday for the jury, Mr. Malvo referred to Mr. Muhammad as "my dad.".

"As fast as possible, he's dead," Mr. Malvo said. "They're going to get rid of him as fast as possible."

He also evaluated his own fate.

"I accept it, I think they're going to kill me," he said. "Between Alabama, Louisiana and Virginia, Alabama, good as gold."

The two men are accused of shootings in the three states as well as in Maryland. Mr. Malvo was asked whether the prospect of death scared him.

"You want to hang me, poke me, shock me," he said. "It's just going to last for three minutes, five minutes, two minutes. Then you're dead."

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