Chesapeake, Va.-- It started with a gag order and ended with the defence team choking on its own witnesses.
Not a good day at all for lawyers trying to construct an insanity defence for accused sniper Lee Boyd Malvo.
Perhaps, as Commonwealth Attorney Robert Horan thundered, there's simply insufficient merit to the insanity argument as applied to this 18-year-old defendant, charged with capital murder in last year's Beltway Sniper shootings - "an insanity defence that's like a puff of smoke."
Or maybe Malvo's attorneys were so discombobulated by an unfavourable ruling on Wednesday that knocked the pins out from under their case - a rant-from-the-heart letter the teenager had written was barred from being entered as evidence - they were simply unprepared to move forward, stumbling badly and appearing stunningly inept in handling the first few mental health "experts" they called to the stand yesterday.
The psychological stuff is palpably critical to Malvo's defence. But, after repeatedly suggesting a narrowly relevant line-of-questioning approach that would be acceptable to the court - advice that went nowhere - Judge Jane Roush essentially directed Malvo's lawyers to go home and think about their witness examination plan. At least as it related to a "cult expert" who was intended to explore one-to-one indoctrination, which the defence claims is what convicted murderer John Allen Muhammad did to the impressionable Malvo, whilst grooming him as a baby assassin.
Horan has throughout this trial complained Malvo's lawyers are "confusing indoctrination with insanity." Roush, in a rare boost to the defence, cut to the chase on behalf of Malvo's legal team, reminding Horan of the basic defence premise, that "indoctrination in this case was so severe that it resulted in a mental insanity in which (Malvo) couldn't tell right from wrong."
At another point, a clearly impatient Roush observed: "I'm taking the defence at its word that somebody is going to say Mr. Malvo was so thoroughly indoctrinated he didn't know right from wrong. I'll be sorely disappointed if that doesn't happen."
It hasn't happened yet.
With cult specialist Paul Martin on the stand - himself a former cultist before turning himself into a professional "deprogrammer" - Roush chastised defence lawyer Thomas Walsh for the broad nature of his questions. She then upheld an objection from Horan, who derided the examination as "a shotgun approach to indoctrination ... hypotheticals."
Argued Horan: "His field is deprogramming cults. There are no cults in this case."
The upshot: Martin was taken off the stand, to be recalled later, when the defence gets its act together. It was the second major embarrassment of the day for Malvo's lawyers.
Right off the top, Horan's associate, Raymond Morrogh, had whinged to Roush about the aforementioned letter's contents appearing for the second day in a row in the Washington Post. Malvo had given the letter to LaToria Williams, Muhammad's niece, after visiting with her family in Baton Rouge some two months before the sniper spree began. Roush ruled the letter to be written hearsay evidence and rejected it.
According to the published excerpts, Malvo wrote:
"Why am I here, there seems for me no purpose. Everyone who has met me hates my gutsy rambling and consider my jibberish fake.
"My patience is thinning, my conflict unresolved, my psyche and fear strewn ... I should have been banished and killed ... for I'm perceived as a walking time bomb waiting to explode ... All I ask is to be loved."
Malvo's lawyers argued, unsuccessfully, that the letter showed the teenager's gloomy mood and fatalism at the time, that he was crying out for help.
Morrogh asked Roush to have all the lawyers in the case questioned, under oath, about the leaked letter. Roush rejected the formal oath scenario but asked attorneys from both sides to answer a leak question. Lead defence attorney Craig Cooley stated he'd had nothing to do with it. But his associate, Michael Arif, rose and made this statement: "I will not comment. I think the inquiry is inappropriate."
That led Roush to issue a gag order, forbidding all lawyers from talking to the media. No more press conferences outside court.
Given all the peripheral issues, and the fact the jury kept being marched out of the courtroom for legal arguments, very little testimony was actually heard in the case yesterday.
But court did hear from David Schretlen, a clinical psychologist from Johns Hopkins University, who spent seven hours conducting neuropsychological exams on Malvo in August. Schretlen testified that Malvo had an average IQ but scored low - "unambiguously abnormal" - in tests that measured his cognitive processing speed. He couldn't figure simple things out easily. "My conclusion is that Mr. Malvo produced an abnormal neural psychological examination."
With no obvious cause for this - head injury, substance abuse, epilepsy, etc. - Schretlen concluded that Malvo was depressed, which might account for such sluggishness. And this elicited a snide interjection from Horan. "Does it surprise you that somebody sitting in jail for 10 or 12 murders might be depressed?"
Unflappable, Schretlen countered that Malvo had not appeared depressed in the least. "He was unusually cheerful. It was almost a goofy effect, if you will, quite out of step with the seriousness of the situation."
The test results did not show a significant mental derangement, certainly nothing that would come close to supporting an insanity diagnosis.
"There's nothing in any of the tests to indicate psychosis?" Horan asked.
Another defence witness, forensic social worker Carmeta Albarus told court she'd spent 70 hours in discussions with Malvo.
Malvo described to Albarus the new society of "superpeople" that he and Muhammad had intended to create - starting with 70 boys and 70 girls from around the world - all brought together in a new community planned for someplace in Canada. "I pointed out how ludicrous it was, the thought of changing the world through 70 boys and 70 girls ... He felt very confident that (they) would be able to do this."
Although no witness has commented on them yet, the defence entered as exhibits more than 100 drawings taken from Malvo's jail cell, many of them depicting anti-American themes and including anti-American commentary.
There are sketches of Saddam Hussein, Osama bin Laden, and a scoped rifle. In one drawing, sniper crosshairs are imposed on a sketch of the White House. An inscription scribbled above says: "You will weep and moan & MOAN. You will bleed to death little by little. Your life belongs to Allah. He will deliver you to us."
To one side of the crosshairs in this drawing, Malvo wrote: "Sept. 11 we will ensure will look like a picnic to you ...You can count on the above statement with every drop of my blood, being and soul."