Lee Boyd Malvo is in big trouble.
The 18-year-old is implicated in the shooting deaths of 10 and the injuries of three others in last October's Washington, D.C.-area sniper spree. He will be tried first in Virginia for the death of former FBI analyst Linda Franklin; Virginia was chosen by John Ashcroft specifically because Malvo will be eligible for the death penalty there, despite the fact that he was only 17 when the shootings occurred. Malvo is allegedly tied to the crimes by DNA and fingerprint evidence, handwriting samples, and—oh, yes—a lengthy taped confession in which he boasts of the killings, laughs at the dead, and says that given the chance, he'd do it again. The judge in the case, Jane Marum Roush, has already ruled that this confession, and other incriminating statements Malvo made to his prison guards, may come into evidence at trial. Jurors will hear two hours of Malvo giggling and crowing over his murders.
With the trial set to begin in November, the defense strategy, in light of the mountain of evidence against Malvo, has been to suggest, tentatively at first but with increasing certainty, that the boy was brainwashed by his co-conspirator, John Allen Muhammad, 42.
Malvo can't have been much fun to defend. He's been petulant and rude, refusing to cooperate with counsel and doing everything he could to undermine his own case. But in recent weeks, the defense team has remarked on a turnaround: According to last week's Washington Post, the "real" Malvo has begun to emerge as he breaks his bond with Muhammad—who's being held and tried separately. Malvo has begun smiling and talking at trial, engaging his lawyers, and joking with his guards. His attorneys note that this behavior is reminiscent of Malvo's personality prior to meeting up with Muhammad in Antigua in 2000. It certainly jibes with all the descriptions of his character given by teachers, friends, and family from Jamaica.
Is it possible, then, that Muhammad took a sweet, bright, attention-starved boy and turned him into a paramilitary freak, half starving him on a diet of honey and crackers and desensitizing him with video games, weapons training, and talk of a race war? Can a jury be made to believe that Malvo was suffering some sort of temporary madness; that he is neither evil nor responsible for his actions, despite the evident joy he took in assassinating innocents for money?
Malvo's defense team believes so. They will not try to prove he's been brainwashed during the guilt phase of the trial. They will try to make this argument as a mitigating factor in the penalty phase. In other words, the fact that he may have been brainwashed by Muhammad will be used only if the boy is found guilty, to persuade jurors that life in prison, as opposed to capital punishment, is the proper penalty.
The "brainwashing" defense has virtually never succeeded in a criminal prosecution, primarily because the concept has been largely dismissed both by academics and judges as junk science. Indeed, Patty Hearst, the most famous proponent of the defense, was convicted and sentenced to seven years in jail. But here's the kicker: Malvo may actually have one of the most credible claims of brainwashing in legal history.
In an article on the myth of the brainwashed defense, I explained the scientific basis for the phenomenon and the reason for its demise. Studies on brainwashing were done in the early 1960s, mostly on former POWs, and the results published by Edgar Schein and Robert Lifton. Schein and Lifton found that prisoners—and it was vital that they be captives—could indeed have their minds and values reshaped by their captors, but only under a very limited set of circumstances. Once removed from the influence of their jailers, original values and ideas returned.
This was why brainwashing theory broke down in the so-called "second-generation" theory—propounded by a handful of academics who believed that charismatic cult or religious leaders could control the behavior of thousands of disciples, without direct influence or captivity, and for long periods of time. In trying to push the phenomenon of brainwashing further than Schein and Lifton, a handful of scholars had a few good years on the witness stand, arguing that Moonies and Scientologists were the victims of mind control, even when they were free to leave or away from the influence of leaders. But there was never any empirical support for such claims; and the academy has largely written off second-generation scholarship as bunk. Courts were quick to follow. Today it would be tough to find an expert witness to defend the proposition that an individual can be brainwashed into committing crimes against his will.
Strangely, Lee Malvo looks like as good a candidate for a first-generation brainwashing defense as there could be. He meets Lifton's original criteria for POW brainwashing almost exactly: An individual who was isolated, degraded, forced to perform repetitive tasks, made to renounce earlier values—Malvo converted to Islam under Muhammad's guardianship—and cut off from external sources of information may actually claim that he's been brainwashed. And science does not disagree. The question is, will a court and jury buy it?
There is little doubt that the youth's personality changed dramatically over a two-year period. Accounts of Malvo's childhood tell of a strikingly different boy than the one on trial. He was overachieving, bookish, gentle, and so desperate for approval that he stayed after school to carry teachers' bags. He is described as quiet, deeply Christian, and artistic. Accounts of Malvo's behavior in Muhammad's presence are equally striking: witnesses say the boy was never more than a few feet from the man, never took his eyes off him, and was ever watchful and wary. Other witnesses describe a gregarious and chatty Malvo who would immediately go silent when Muhammad entered the room. He changed his name to John—Muhammad's first name—hid his Jamaican accent, and called Muhammad his father.
It's also clear that Muhammad isolated the boy from anyone else, including his mother, who traveled to Washington state in an unsuccessful attempt to reclaim him. Muhammad lived with the boy in shelters, in cars, and with friends, moving constantly, training him for combat, and prohibiting close connections with others. Since the boy was no longer in school, Muhammad became parent, teacher, playmate, and pastor to Malvo. And he turned him into an army of one, training him as a sniper, encouraging him to play hours of video games, insisting on a demented regimen of health food and exercise, and talking constantly of the race war in America. Malvo's writings and drawings from prison reveal that his theology and philosophy were deeply informed by Muhammad's teaching.
The question remains: If this impressionable young man really was yanked from his family and friends, isolated from outside influences, and inculcated with hatred, greed, and a lust to kill, does that absolve him of the evil he committed? Does it at least mitigate against executing him? Can one be so enthralled by another that one's own true self is lost? And if that is the case, is there any reason to believe that the "real" Malvo could ever be regained? This leaves jurors to make a near-impossible decision about evil and character, about redemption and free will and determinism; about whether a child can be morally ruined to the point that he should be discarded. These are more theological questions than legal ones. But perhaps that is also ultimately fitting for a jury that will be deciding whether a young man will die.