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American Morning

Malvo Trial

Aired December 12, 2003 - 09:33   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.


SOLEDAD O'BRIEN, CNN ANCHOR: Attorneys for accused sniper Lee Boyd Malvo are expected to rest their case when his trial resumes on Monday. Malvo's lawyers contend that the teenager was brainwashed by John Muhammad. Yesterday prosecutors cross-examined the defense psychiatrist, trying to counter claims that Malvo was legally insane during the sniper shootings.
CNN's senior legal analyst Jeffrey Toobin is here to talk about this case.

Good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Can I talk about something else first? You know, it occurred to me this is your first Christmas at CNN. And NBC, you have a tree, you have a rather well-known Christmas tree.

O'BRIEN: We have a tree here.

TOOBIN: Well, that's right, and I thought this is an interesting difference between broadcast and cable. You know, the Rockefeller Center Christmas Tree.

O'BRIEN: They have a tree, we have a tree, yes.

TOOBIN: And I just think it's a beautiful thing.

O'BRIEN: You know what the difference is? Our tree is prelit, and the Rockefeller Center tree, they have to put a lot of effort into lighting that thing, and they invite a lot of people.

TOOBIN: I just thought that is the CNN tree, and it's a beautiful thing.

O'BRIEN: And now it's my tree to take home...

TOOBIN: I'm sorry, were you discussing something else?

O'BRIEN: I was going to talk about the sniper. Not a problem at all. I have to say those two trees in my heart, exactly the same.

But we move on. Seriously speaking, the tricky defense of course of brainwashing, that Lee Boyd Malvo was brainwashed. The problem that's becoming more apparent for the defense is the more they talk about the case, whenever Lee Boyd Malvo talks about having any kind of remorse, which a jury I guess likes to see, is a problem for their defense. TOOBIN: Because they have to talk about the facts of the case. I think a lot of people kind of checked out a little bit on this case. The details are, people aren't following this closely. But if you look at what's going on in this courtroom, it is the most unbelievable story of how awful these crimes were.

I mean, everybody remembers them -- many people remember that they shot one kid at a school. One of the things that came out yesterday was that they actually planned to shoot five kids at that school, and changed at the last minute just to shoot one. I mean, imagine that they were thinking things like that.

O'BRIEN: So I'm wondering if the jurors are seeing just pure, unadulterated evil to some degree. But at the same time, by making those distinctions, not shooting five, shooting one, and they had talked about maybe injuring some of those kids to show that they were a good shot.

O'BRIEN: Right.

O'BRIEN: All those things show nuances that if someone's trying to claim he's insane might be a problem for the defense, right?

TOOBIN: Absolutely. And also the biggest problem for the defense is that brainwashing doesn't really fit under the legal definition of insanity in Virginia. In Virginia, like a lot of states, it's inability to tell right from wrong.

But there really doesn't appear to be much evidence that Malvo couldn't tell right from wrong. He just was extremely disturbed and under the influence of Muhammad. And what I thought all along is what they're really doing is not so much trying to get him acquitted by reason of insanity, is setting up the penalty phase, where they can argue in a more broad way that he is simply too much under the influence to get the death penalty.

O'BRIEN: The same jurors will hear it. So they're laying the groundwork to try to see if they can avoid death in the end, as opposed to what they're negotiating for now in the case. That's your theory. We heard yesterday the prosecutor run down a list of the sniper shootings, boom, boom, boom, talking to the defense, grilling really the defense psychiatrist. What was the impact of that in the courtroom?

TOOBIN: I -- just, again, to emphasize the magnitude of this. Insanity is something that people sometimes think. A lot of laypeople I think correctly, think it's kind of a spasm of craziness, but by going through the number of shootings, you see just how much planning went on, how long, how long a period of time this went on. It's a lot harder to argue that all this meticulous planning, all these different shootings are the product of insanity as opposed to one irrational act.

O'BRIEN: Interesting.

TOOBIN: See you at the party. O'BRIEN: Yes, this afternoon, our big party.

TOOBIN: We'll learn how to behave.

O'BRIEN: I already know how to behave. But if you would like a few lessons.

TOOBIN: I'm sticking around.

O'BRIEN: You can stick around for that. Thanks, Jeff.

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 December 12, 2003 - 09:33   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SOLEDAD O'BRIEN, CNN ANCHOR: Attorneys for accused sniper Lee Boyd Malvo are expected to rest their case when his trial resumes on Monday. Malvo's lawyers contend that the teenager was brainwashed by John Muhammad. Yesterday prosecutors cross-examined the defense psychiatrist, trying to counter claims that Malvo was legally insane during the sniper shootings.
CNN's senior legal analyst Jeffrey Toobin is here to talk about this case.

Good morning.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Can I talk about something else first? You know, it occurred to me this is your first Christmas at CNN. And NBC, you have a tree, you have a rather well-known Christmas tree.

O'BRIEN: We have a tree here.

TOOBIN: Well, that's right, and I thought this is an interesting difference between broadcast and cable. You know, the Rockefeller Center Christmas Tree.

O'BRIEN: They have a tree, we have a tree, yes.

TOOBIN: And I just think it's a beautiful thing.

O'BRIEN: You know what the difference is? Our tree is prelit, and the Rockefeller Center tree, they have to put a lot of effort into lighting that thing, and they invite a lot of people.

TOOBIN: I just thought that is the CNN tree, and it's a beautiful thing.

O'BRIEN: And now it's my tree to take home...

TOOBIN: I'm sorry, were you discussing something else?

O'BRIEN: I was going to talk about the sniper. Not a problem at all. I have to say those two trees in my heart, exactly the same.

But we move on. Seriously speaking, the tricky defense of course of brainwashing, that Lee Boyd Malvo was brainwashed. The problem that's becoming more apparent for the defense is the more they talk about the case, whenever Lee Boyd Malvo talks about having any kind of remorse, which a jury I guess likes to see, is a problem for their defense. TOOBIN: Because they have to talk about the facts of the case. I think a lot of people kind of checked out a little bit on this case. The details are, people aren't following this closely. But if you look at what's going on in this courtroom, it is the most unbelievable story of how awful these crimes were.

I mean, everybody remembers them -- many people remember that they shot one kid at a school. One of the things that came out yesterday was that they actually planned to shoot five kids at that school, and changed at the last minute just to shoot one. I mean, imagine that they were thinking things like that.

O'BRIEN: So I'm wondering if the jurors are seeing just pure, unadulterated evil to some degree. But at the same time, by making those distinctions, not shooting five, shooting one, and they had talked about maybe injuring some of those kids to show that they were a good shot.

O'BRIEN: Right.

O'BRIEN: All those things show nuances that if someone's trying to claim he's insane might be a problem for the defense, right?

TOOBIN: Absolutely. And also the biggest problem for the defense is that brainwashing doesn't really fit under the legal definition of insanity in Virginia. In Virginia, like a lot of states, it's inability to tell right from wrong.

But there really doesn't appear to be much evidence that Malvo couldn't tell right from wrong. He just was extremely disturbed and under the influence of Muhammad. And what I thought all along is what they're really doing is not so much trying to get him acquitted by reason of insanity, is setting up the penalty phase, where they can argue in a more broad way that he is simply too much under the influence to get the death penalty.

O'BRIEN: The same jurors will hear it. So they're laying the groundwork to try to see if they can avoid death in the end, as opposed to what they're negotiating for now in the case. That's your theory. We heard yesterday the prosecutor run down a list of the sniper shootings, boom, boom, boom, talking to the defense, grilling really the defense psychiatrist. What was the impact of that in the courtroom?

TOOBIN: I -- just, again, to emphasize the magnitude of this. Insanity is something that people sometimes think. A lot of laypeople I think correctly, think it's kind of a spasm of craziness, but by going through the number of shootings, you see just how much planning went on, how long, how long a period of time this went on. It's a lot harder to argue that all this meticulous planning, all these different shootings are the product of insanity as opposed to one irrational act.

O'BRIEN: Interesting.

TOOBIN: See you at the party. O'BRIEN: Yes, this afternoon, our big party.

TOOBIN: We'll learn how to behave.

O'BRIEN: I already know how to behave. But if you would like a few lessons.

TOOBIN: I'm sticking around.

O'BRIEN: You can stick around for that. Thanks, Jeff.

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