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CNN Live Today

Interview With James Fox

Aired November 11, 2003 - 10:17   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


DARYN KAGAN, CNN ANCHOR: In other news this morning, jury selection resumes in the trial of sniper suspect Lee Boyd Malvo. The trial got underway yesterday. Defense lawyers have subpoenaed Malvo's alleged accomplice John Allen Muhammad to testify. They are trying to show that Muhammad brainwashed Malvo into participating in the deadly sniper shootings.
In Muhammad's trial the defendant says he is innocent. The prosecution has wrapped up its case. After taking off for the Veterans' Day holiday, Muhammad's attorney will begin their defense tomorrow.

For more insight into the Malvo case we're joined by criminologist James Fox. And he joins us from -- where are you this morning?

JAMES FOX, NORTHWESTERN UNIV.: I'm in northern Massachusetts.

KAGAN: Very good, we tracked you down there.

(CROSSTALK)

KAGAN: Let's talk about some of the defense decisions and how they're trying to protect Lee Boyd Malvo. First of all, trying to suggest that he has been temporarily insane and brainwashed.

FOX: Well, we have a case where it's not in doubt whether he was there or not. And it may not even be in doubt whether he pulled the trigger.

The issue now is whether he had intent. The insanity defense is perhaps their last resort here. It's the only way they can attempt to defend this man, to say that he was brainwashed, that he was under the direction and control of Muhammad.

(CROSSTALK)

FOX: ... terms of an insanity defense. It rarely does. It may however have an impact in terms of the recommendations by the jury about the penalty.

KAGAN: And what about trying to subpoena John Allen Muhammad?

Well, apparently we look like we're having a technical problem with that. We'll try to get James Fox back. I think he's back. Are you back? Can you hear me, James?

FOX: I'm back, yes, I can.

KAGAN: Very good. OK, I was asking...

FOX: I'm not sure how much of the answer you heard. I didn't hear it but...

(CROSSTALK)

KAGAN: Let's talk about John Allen Muhammad, subpoenaing him to appear. Do you even that think he would anything to say or would he just plead the Fifth?

FOX: Well he may plead the Fifth. It's hard to say.

But what's clear for the defense in the Malvo case is they're happy about the fact that Muhammad in his trial is being painted as the mastermind. The prosecution in the Muhammad case, who perhaps don't have any evidence that he actually pulled the trigger, are saying that Muhammad directed Malvo to pull the trigger, explicitly or implicitly. Therefore he is sort of trigger man. That would help Malvo by suggesting that Malvo is under the control of this older mentor.

I think at the jury stage when it comes to the penalty phase, the jury may be persuade by that. Juries often do not want to sentence juveniles to the death penalty, particularly when it appears that he was being influenced in a significant way by Muhammad.

It may not eliminate his responsibility, it may not be substantial enough to prove insanity, I doubt that. But it may be a mitigating circumstance that will spare Malvo from the death penalty.

KAGAN: He was 17 at the time of the killings but he now is 18. So perhaps that will sway the jury in another way that he's now an adult.

KAGAN: Well, by law, 17 years old is old enough to be executed.

KAGAN: In Virginia.

FOX: In Virginia. And in other states as well. It's constitutional.

But still he is immature, at least less mature than Muhammad was. And the jury will not be persuaded in saying, Oh, let's let him go free. Because they think the insanity defense means he goes free. But they may be persuaded that let's not give him the ultimate penalty.

KAGAN: Well, if you look what the ultimate penalty is, of course, being the death penalty. And you look at this effort to try to prove he was brainwashed and temporarily insane. Is this all just a bid to try to save his life, do you believe?

FOX: Probably. I mean they have to put up a defense. But the insanity defense likely will not work. It rarely does. In a very small fractional cases does the insanity defense work. Juries don't buy it, they don't like it they don't believe it.

Plus, even in the cases where the insanity defense is successful, it usually is because the prosecution and the defense are both in agreement that the guy is so out of his mind that he is not criminally responsible and the insanity plea is then negotiated outside of court. This is not that case.

I would be extraordinarily surprised if the insanity plea works. They have to try some defense. But it will work, I believe, when it comes to sparing Malvo the death penalty.

What's curious here and ironic is one of the reasons why Virginia was chosen as the location of the trial, even though there were three jurisdictions involved, D.C., Maryland and Virginia, was that Virginia, indeed, did have the easiest access to the death penalty, particularly for Malvo being a juvenile.

Yet in the end he may not get it. Neither may get it.

KAGAN: We will be tracking it. Thank you for your insight. Appreciate it this morning.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com







Aired November 11, 2003 - 10:17   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: In other news this morning, jury selection resumes in the trial of sniper suspect Lee Boyd Malvo. The trial got underway yesterday. Defense lawyers have subpoenaed Malvo's alleged accomplice John Allen Muhammad to testify. They are trying to show that Muhammad brainwashed Malvo into participating in the deadly sniper shootings.
In Muhammad's trial the defendant says he is innocent. The prosecution has wrapped up its case. After taking off for the Veterans' Day holiday, Muhammad's attorney will begin their defense tomorrow.

For more insight into the Malvo case we're joined by criminologist James Fox. And he joins us from -- where are you this morning?

JAMES FOX, NORTHWESTERN UNIV.: I'm in northern Massachusetts.

KAGAN: Very good, we tracked you down there.

(CROSSTALK)

KAGAN: Let's talk about some of the defense decisions and how they're trying to protect Lee Boyd Malvo. First of all, trying to suggest that he has been temporarily insane and brainwashed.

FOX: Well, we have a case where it's not in doubt whether he was there or not. And it may not even be in doubt whether he pulled the trigger.

The issue now is whether he had intent. The insanity defense is perhaps their last resort here. It's the only way they can attempt to defend this man, to say that he was brainwashed, that he was under the direction and control of Muhammad.

(CROSSTALK)

FOX: ... terms of an insanity defense. It rarely does. It may however have an impact in terms of the recommendations by the jury about the penalty.

KAGAN: And what about trying to subpoena John Allen Muhammad?

Well, apparently we look like we're having a technical problem with that. We'll try to get James Fox back. I think he's back. Are you back? Can you hear me, James?

FOX: I'm back, yes, I can.

KAGAN: Very good. OK, I was asking...

FOX: I'm not sure how much of the answer you heard. I didn't hear it but...

(CROSSTALK)

KAGAN: Let's talk about John Allen Muhammad, subpoenaing him to appear. Do you even that think he would anything to say or would he just plead the Fifth?

FOX: Well he may plead the Fifth. It's hard to say.

But what's clear for the defense in the Malvo case is they're happy about the fact that Muhammad in his trial is being painted as the mastermind. The prosecution in the Muhammad case, who perhaps don't have any evidence that he actually pulled the trigger, are saying that Muhammad directed Malvo to pull the trigger, explicitly or implicitly. Therefore he is sort of trigger man. That would help Malvo by suggesting that Malvo is under the control of this older mentor.

I think at the jury stage when it comes to the penalty phase, the jury may be persuade by that. Juries often do not want to sentence juveniles to the death penalty, particularly when it appears that he was being influenced in a significant way by Muhammad.

It may not eliminate his responsibility, it may not be substantial enough to prove insanity, I doubt that. But it may be a mitigating circumstance that will spare Malvo from the death penalty.

KAGAN: He was 17 at the time of the killings but he now is 18. So perhaps that will sway the jury in another way that he's now an adult.

KAGAN: Well, by law, 17 years old is old enough to be executed.

KAGAN: In Virginia.

FOX: In Virginia. And in other states as well. It's constitutional.

But still he is immature, at least less mature than Muhammad was. And the jury will not be persuaded in saying, Oh, let's let him go free. Because they think the insanity defense means he goes free. But they may be persuaded that let's not give him the ultimate penalty.

KAGAN: Well, if you look what the ultimate penalty is, of course, being the death penalty. And you look at this effort to try to prove he was brainwashed and temporarily insane. Is this all just a bid to try to save his life, do you believe?

FOX: Probably. I mean they have to put up a defense. But the insanity defense likely will not work. It rarely does. In a very small fractional cases does the insanity defense work. Juries don't buy it, they don't like it they don't believe it.

Plus, even in the cases where the insanity defense is successful, it usually is because the prosecution and the defense are both in agreement that the guy is so out of his mind that he is not criminally responsible and the insanity plea is then negotiated outside of court. This is not that case.

I would be extraordinarily surprised if the insanity plea works. They have to try some defense. But it will work, I believe, when it comes to sparing Malvo the death penalty.

What's curious here and ironic is one of the reasons why Virginia was chosen as the location of the trial, even though there were three jurisdictions involved, D.C., Maryland and Virginia, was that Virginia, indeed, did have the easiest access to the death penalty, particularly for Malvo being a juvenile.

Yet in the end he may not get it. Neither may get it.

KAGAN: We will be tracking it. Thank you for your insight. Appreciate it this morning.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com