He had shot the wrong target. On orders from his mentor, John Allen Muhammad, Malvo was supposed to shoot Isa Farrington Nichols, Cook’s aunt, who had supported Muhammad’s ex-wife in the custody battle over their children. The slaying orphaned Cook’s daughter, devastated her family and ended Nichols’ marriage. But Nichols, and some other victims of the D.C. sniper rampage 17 years ago, are supporting Malvo’s bid to be resentenced for his life without parole term, which will be argued before the U.S. Supreme Court on Wednesday as the latest chapter in the high court’s evolving reconsideration of how to handle juveniles in the criminal justice system.
“This is not about him being released,” Nichols said, knowing that even reducing Malvo’s 10 life sentences would not lead to his freedom. “The first time I heard it, I was like, ‘Are you kidding me?’ This was someone sent to my door to kill me. But as I listened more and more, I understood the totality of what’s involved, and the other families involved in youths sentenced to life without parole … I believe there’s a bigger picture here. This is something that needs to be done."
Not all victims want to see Malvo’s case reopened. Nelson Rivera, whose wife Lori Lewis Rivera, 25, was killed by the snipers in Kensington, Md., joined an amicus brief filed by the Maryland Crime Victims Resource Center that said the rulings clearing the way for Malvo’s resentencing “re-traumatize, revictimize, and violate the legal and human rights of victims.” The center’s lawyer, Victor Stone, said that “people like Mr. Rivera lost a really important family member.” Ordering new hearings “puts a tremendous burden and revictimization on victims’ families who struggle with that loss. They spent years trying to resume a normal life. The lack of finality to them, that is really something,” particularly if they must relive the trauma in new hearings.
After Cook’s slaying in Washington state, Malvo and Muhammad shot at least 21 more people around the country, killing 14 of them, including 10 homicides in the Washington area in a three-week rampage in October 2002. The shootings gripped the D.C. region and the world. The pair were arrested near Frederick, Md., and prosecuted in Virginia in 2003, where capital punishment was still an option for juveniles. Muhammad was sentenced to death, but Malvo’s jury chose a life sentence without parole rather than death for the Jamaican teen, who was 17 at the time of the sniper shootings. He then entered pleas in two additional Virginia shootings, and in six Maryland slayings, and received eight more life sentences.
Then the Supreme Court began a string of rulings that recognized the developing nature of teenage brains and changed the way juveniles are prosecuted. First in 2005, the court ruled that it was unconstitutional for juveniles to receive the death penalty, and in 2010 that juveniles may not receive life sentences for non-homicide convictions. Then in 2012, in Miller v. Alabama, the court ruled that juveniles may not be sentenced to life without parole unless they are found to be irreparably criminal. And in 2016, in Montgomery v. Louisiana, the court ruled that its Miller ruling could be applied to juvenile life sentences imposed years earlier.
“The distinctive attributes of youth,” Justice Elena Kagan wrote in Miller, “diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” The ruling did not prohibit life sentences without parole, but required that judges or juries consider whether the crime “reflects unfortunate yet transient immaturity,” or the defendant is “the rare juvenile offender whose crime reflects irreparable corruption” deserving of the harshest penalty.
And so Malvo, through his original trial attorney Craig S. Cooley, sought a new sentencing in Virginia. Malvo at the time was one of about 2,800 people nationwide who were juveniles when they were sentenced to life without parole, according to the Campaign for Fair Sentencing of Youth. Once the Supreme Court declared that the Miller ruling was retroactive, resentencing hearings began across the country, with about 1,950 inmates getting new hearings or relief from new laws: 22 states and the District of Columbia have now prohibited life sentences without parole for juveniles.
There is also a racial disparity to juvenile sentencings, said Jody Kent Lavy, executive director of the Campaign for Fair Sentencing of Youth. “African American youth get life sentences at a rate of 10 times white youth,” Lavy said. “And racial disparity actually increases when judges get more discretion in sentencing.”
Malvo, now 34, is one of 12 people sentenced as juveniles and serving life in Virginia, and “he understands that even if his sentence is reduced … he’s not getting out,” Cooley said. Malvo has six convictions in Maryland, where a similar motion for resentencing is pending, and prosecutors in Arizona, Georgia, Alabama, Louisiana and Washington state could still charge him with murder. “It may benefit people who have only one charge and sentence to deal with," Cooley said of the Supreme Court case. "It’s an important case for precedential purposes.”
Cooley and Malvo first had their resentencing motion granted in 2017 by U.S. District Judge Raymond A. Jackson, who made it clear that Malvo’s two convictions in Fairfax County, Va. — capital murder of FBI analyst Linda Franklin as an act of terrorism, and multiple murders in a three-year period — and two in Spotsylvania County, Va., were undisturbed and that new sentences could still result in life without parole. In Virginia, juries determine sentences in criminal cases, and judges then impose those sentences, with the option only to reduce them.
Malvo’s trial in 2003 was essentially one long sentencing hearing, in which his defense team laid out his troubled life story, and manipulation by Muhammad, as part of an insanity defense, which the jury rejected. But neither the jury nor Fairfax Circuit Court Judge Jane Marum Roush considered the criteria established nine years later by the Supreme Court of “irreparable corruption” and the “transient immaturity of youth,” and Jackson ruled that Malvo was entitled to have his crimes reviewed through that lens.
Franklin’s husband, William “Ted” Franklin, said he was unfamiliar with developments in the case and declined to comment.
Virginia Attorney General Mark Herring (D) appealed Jackson’s ruling, and last year the U.S. Court of Appeals for the 4th Circuit reluctantly sided with Malvo. Judges Paul V. Niemeyer, Robert B. King and Albert Diaz wrote that their conclusions were made “not with any satisfaction but to sustain the law.”
Herring appealed again, and the Supreme Court agreed to hear the case.
The attorney general argues that the lower courts improperly expanded the Supreme Court’s rulings to cases where the court had discretion in sentencing, as opposed to a mandatory life sentence.
Virginia has argued twice (and lost twice) that the judge in Malvo’s case had the discretion to reduce the jury’s life term for capital murder to something less. In 2017, the Virginia Supreme Court ruled that life sentences in capital murder cases could be partially suspended. Cooley said that in 2003 “everybody in the state who did these things believed there was no prerogative for the judge. Certainly the judge didn’t think so.” Cooley, who has tried dozens of capital murder cases and taught capital murder at the University of Richmond Law School, said, “Never did anybody suggest there anything other than the two options: death or life without parole.”
Roush, who imposed the jury’s two life sentences in March 2004, is now retired. She declined to comment. Malvo’s Supreme Court brief notes that Virginia “has identified no case prior to Miller, and counsel is aware of none, in which a Virginia court sentenced a juvenile convicted of capital murder to anything less than life without parole.” For the Supreme Court case, Cooley recruited Washington lawyer Danielle Spinelli to lead Malvo’s team. Spinelli was part of the team that persuaded the high court in 2005 to ban executions for juveniles.
“A life-without-parole sentence” for a juvenile without considering a defendant’s maturity and changeability, Spinelli wrote, “violates Miller whether it is ‘mandatory’ or not.”
But the 4th Circuit ruled that it didn’t have to decide whether Malvo’s sentences were mandatory because the Montgomery case confirmed that “a sentencing judge also violates Miller’s rule any time it imposes a discretionary life-without-parole sentence” without first making a finding of permanent incorrigibility.
Fairfax County Commonwealth’s Attorney Raymond F. Morrogh, who helped prosecute Malvo in 2003, said Virginia law has never prohibited judges from suspending part of a capital murder sentence, as it specifically does for other crimes.
Morrogh noted that Malvo’s maturity and culpability were amply explored at his trial. “That was the crux of the defense argument for a month in front of the jury,” Morrogh said. “It is a rare case that any juvenile should get a life sentence, but these were multiple killings. In my opinion, he was at least as bad as Muhammad. He sat there during the trial and drew pictures of [former Fairfax prosecutor] Bob [Horan] and me with targets on our backs.”
The case has attracted amicus briefs from significant parties on both sides. The Justice Department filed a brief in support of Virginia, and the court has granted the solicitor general time to participate in Wednesday’s oral arguments.
Stone said the impact on the victims should not be overlooked. “This affects lots of lives across the country,” Stone said. He has represented victims whose juvenile offenders won resentencings in Maryland, and “some ask for our help, some can’t talk when they stand up in court, and some don’t want to deal with it. Their whole life was changed.”
The American Bar Association and a group of former and current state and federal prosecutors and judges, to include former FBI and CIA director William Webster, filed briefs on behalf of Malvo, as did a group of crime victims including sniper victims Nichols, shooting survivor Paul LaRuffa and Cheryll Shaw, whose father Jerry Taylor was killed in Arizona in March 2002.
LaRuffa’s life was changed in September 2002, when he walked out of his Clinton, Md., restaurant, climbed into his car and then was shot five times by Malvo. Malvo then took $3,000 cash and LaRuffa’s laptop, which Muhammad used to plot subsequent violence. LaRuffa recovered, is now retired, and supports Malvo’s case.
“I really agree there is a big difference between youth and adult offenders,” LaRuffa said, “and I think they should be treated differently in the justice system. They have a better chance of being rehabilitated.” He said it was “hard when you use Malvo as an example,” because the sniper shootings were so horrific. “This case is for all juveniles. I think it’s reasonable to say if the death penalty for young people is off the table, it’s kind of the same reason life without parole is off the table.”