BALTIMORE — He is either a case study for why the death penalty should be abolished for juvenile killers or an example of why age should not be a determining factor for a death sentence.
As Lee Boyd Malvo’s capital murder trial approaches, the debate is being renewed between opponents of executing criminals who were younger than 18 when they killed and advocates for allowing the death penalty for juvenile killers.
Malvo was 17 when an FBI analyst, Linda Franklin, was fatally shot Oct. 14, 2002, in a Home Depot parking lot in Fairfax County, Va. His trial as an adult, set to start tomorrow and moved to Chesapeake, Va., to find jurors unaffected by last fall’s sniper siege around the District of Columbia, is being closely watched by both sides.
“I think this is a strong case for the difference between an adult and a juvenile,” said Richard C. Dieter, executive director of the Washington-based Death Penalty Information Center.
“One of the things about juveniles is that they are often led by older other people who may influence them.”
For months leading up to the trial, Malvo’s defense team has depicted the Jamaican-born teenager as “under the spell” of John Allen Muhammad, 42. The older sniper suspect is on trial in Virginia Beach, Va., for capital murder in another of the 10 Washington-area sniper killings.
“The bond was father-son, but maybe it was jailer-inmate in a way,” Dieter said. “You do things to survive.”
But those who argue that execution should be available for people who kill as juveniles say some crimes are so awful that prosecutors and juries should not be limited by a convicted killer’s age. Age — emotional, intellectual, and chronological — is among factors presented to a jury weighing life or death.
“This certainly is a crime that qualifies for it,” said Michael Rushford, president of the Criminal Justice Legal Foundation, which supports the death penalty.
William C. Mulford II, a former prosecutor turned defense attorney in Annapolis, Md., said: “Does it get any worse than premeditated, deliberate killings of innocent people who were doing nothing more than pumping gas or mowing a lawn?”
Maryland is among 28 states in which execution of juvenile killers is not allowed. This means the death penalty is impossible for Malvo in the state where most of the sniper killings occurred.
Instead, US Attorney General John D. Ashcroft sent the cases to Virginia, saying it offered “the best law, the best facts, and the best range of available penalties.”
Second to Texas in overall executions, the state of Virginia has executed three juvenile killers since the death penalty was reinstated in 1976. Another is on death row.
“In looking at those circumstances in which juveniles have received the death penalty, they generally seem to involve particularly heinous crimes,” said Michael O’Neill, a law professor at George Mason University in Virginia and a member of the US Sentencing Commission.
The first person executed in Virginia since 1976 for a murder committed while a juvenile was Dwayne Allen Wright, in 1998. He was 17 when he went on a rampage in 1989 that killed three.
In asking a jury to sentence Wright to death, Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. — who also is prosecuting Malvo — pointed to the random nature of the killing. Horan is expected to make a similar argument if a jury convicts Malvo of capital murder.
Malvo’s jury will first consider a defense of not guilty due to insanity. If the jury finds him guilty of capital murder and if Horan seeks a death sentence as expected, the jury will hear evidence for either a death sentence or life without parole.
Mark J. Yeager, who represented Wright, said Malvo’s contentions about insanity and brainwashing would be tough, but maybe not impossible, to sell.
“The only problem is that that kind of stuff only happens in the mind of a novelist; it doesn’t happen in real life all that often,” he said. “A jury, I would think, is going to be somewhat skeptical of that argument.”
Legal specialists doubt Malvo’s case will have an effect on the future of the death penalty for juvenile offenders, although they expect advocates and opponents to add it to their arsenals of arguments. Victor L. Streib, a law professor at Ohio Northern University who studies the death penalty, said the execution of juvenile killers is heading for oblivion despite the sniper case — either state by state or by the Supreme Court halting the practice.
“It’s kind of like when we have a cold day and somebody says global warming is over,” Streib said. “Malvo is our cold day. But the ice cap is still melting.”
Four months after barring states from executing mentally retarded killers, the Supreme Court, in a majority vote, declined to decide whether juvenile killers should be executed.