Prosecution's Closing Argument During Penalty Phase of Malvo Trial

Monday, December 22, 2003; 5:06 PM

The following is the transcript of the Dec. 22 penalty phase closing argument by Fairfax Commonweath's Attorney Robert F. Horan Jr. in the capital murder trial of Lee Boyd Malvo. This is from a preliminary transcript of court proceedings compiled by court reporters Alvis & Cheesebrew, Inc.

MR. HORAN: Thank you, your honor.

Thank you again, members of the jury, for your attention to this case.

We are at that juncture that demands that 12 citizens be the ones to decide. As you know, the elected representatives of the people, the legislature, they determine what kind of murder a particular crime is. The elected representatives decide what the punishment is for particular offenses. There are many kinds of murder. An overwhelming percentage do not carry the possibility of the death penalty. A very narrow range of cases carry that penalty. You have now convicted this defendant of two counts within that narrow range of cases that can call for the death penalty.

The legislature not only determines the kind of crime, but as her honor has already indicated to you, superimposed on the question of punishment is the requirement of two--either one or both--but what her honor has called aggravating factors. You not only have to convict the defendant of the underlying crime; you must also find that it is either: one, vile, the vileness factor; or number two, that he is so dangerous in the future that there is a probability he would commit further acts of violence. Those two factors are superimposed on the verdict. You have already rendered a verdict, and you have got to decide punishment considering those two factors.

Of course, the law does not want any one person to decide these things. It is not the prosecutor's judgment, not the defense attorney's judgment. It is the judgment of 12 citizens. What we do is we ask the nurses, the teachers, the housewives, the sales people, the ordinary working people to decide these issues, and that is what is before you. No one suggests that it is an easy issue. It never, ever is. But it is an issue for the 12, the 12 citizens who have sworn to fairly decide the fate of this defendant.

The questions are really two-fold.

Question number one: Is the behavior of this defendant so outrageous that the penalty of death is called for? Is the behavior so outrageous? And the other prong is has he shown by his actions and in his attitude that he presents the danger of future dangerousness to such an extent that the death penalty is proper? We submit based on the evidence that is already before you that the penalty of death is the appropriate verdict in this case.

Question: Is it vile? Is it vile? Does it evidence depravity of mind? That is what the judge has instructed you. Does it show depravity of mind? We submit just starting on Oct. 3, 2002--forgetting about all of the other crimes this defendant has been involved with--from Oct. 3, 2002, until Oct. 22, 2002, they killed 9 people, 9 ordinary citizens going about daily human behavior. Nine ordinary citizens, killed for what reason? In the language of this defendant, "to stop the body bags," to intimidate the government into giving them money. They started out by killing innocent people before they ever told the government why they were doing it. They wanted to build up the intimidation in the government so that the money would be forthcoming. Members of the jury, we submit to you, if there is such a thing as vileness, that is vileness. What they did to these nine citizens is outrageously vile. It shows a depravity of mind. It is hard to believe. It is one thing to kill somebody because you hate. It is another to kill somebody to get revenge for something, but to kill at random, to just shoot people as part of a major plan to coerce money out of the government, almost by definition, that shows a depraved mind. You heard on Friday the 911 tape. I won't play it for you. You will have it in the jury room. That 911 tape begins to document the vileness of this defendant. He was the sniper. He was the one who killed Linda Franklin. And why? Why did he kill her? Look at his words:

"Yes. Her husband, he is moving too and from too much, so the thing was the sniper you could hit him but you know you won't get the effect you want if you are looking for a certain effect. Why, why waste, why waste it, if you're gonna do it, be good at it, don't be sloppy."

You notice the words. You won't get the effect you want if you shoot the husband. You want a certain effect. You want this killing to affect the way the government deals with you. What did he say? "Don't be sloppy." What's the result of that attitude, "Don't be sloppy?"

QUESTION: Okay so uh, you (inaudible) where did you, you know, where you shot the lady?

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