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LIVE FROM THE HEADLINES

Malvo's Attorneys Blame Muhammad for Brainwashing Teen

Aired June 25, 2003 - 20:37   ET

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

PAULA ZAHN, CNN ANCHOR: Attorneys for D.C. area sniper suspect Lee Boyd Malvo are pointing the finger at his co-defendant, John Allan Muhammad. Malvo's attorneys are suggesting Muhammad brainwashed the teen into taking part in last fall's shootings. They want a judge to order the release of any evidence showing their client was under Muhammad's spell. Our own legal analyst Jeffrey Toobin joins us now from Washington. No, indeed. That's what they wrote (UNINTELLIGIBLE), but of course, he's right here in New York City.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Boy, am I tired.

ZAHN: And I can prove that. We're here on the plaza, he's in New York City tonight, folks.

All right. So what kind of -- is this nonsense?

TOOBIN: It's not nonsense. But it's not a defense either. There's no such thing as under the spell. Insanity is the defense, not having the intent to commit the crime is a defense. But under the spell is something that comes out of the movies.

What I think they're trying to do, which is not crazy at all, is trying to prepare the public, prepare a jury pool to find him not getting the death penalty. This is all about the death penalty. It's not about guilt or innocence.

ZAHN: Is it going to work?

TOOBIN: I don't know. I don't know. It's certainly not going to work in front of a jury to say someone's under the spell, because the judge will just instruct the jury, under the spell is not a defense.

ZAHN: Now, we've seen this used before in court before, though, in the Patricia Hearst case.

TOOBIN: We have indeed. The Patricia Hearst case...

ZAHN: And remind us of what happened.

TOOBIN: Well, just talk about a good case for that, for the defense. There's a woman who was kidnapped, no one said Malvo was kidnapped, she was kidnapped, dragged out of her apartment, and then apparently literally brainwashed, and got involved in bank robberies. She was prosecuted for the bank robberies and convicted. So the jury didn't buy the brainwashing defense. They certainly, especially in something like this, where you've got 10, 12 shootings, where someone could change their mind after each one, had the opportunity to leave, they're not going to buy it here. But I don't want to ridicule this too much, because there is a legitimate point here, which is that when dealing with the death penalty, a jury doesn't have to operate by the rules. They can use any rationale they want to find someone not worthy of the death penalty.

ZAHN: So take us to that next step, then. So if there's any sympathy at all for this position, that Mr. Muhammad passed this kid off as his own, that this young man was terribly impressionable, is that really going to lighten the burden?

TOOBIN: Well, it might. It might, it might when it comes to the death penalty, because he is 17. Muhammad is in his 40s. I mean, it obviously is a father-son type relationship. You don't want to give the kid a pass, you don't want to say, boy, we feel sorry for you, give him a pat on the head, go straighten out your life. But if the choice is execute or life in prison, you might say as a juror, well, perhaps he was sort of under the spell, give him life in prison instead.

ZAHN: Jeffrey Toobin in the Big Apple this evening.

TOOBIN: That's right where I want to be.

ZAHN: (UNINTELLIGIBLE) in Washington next week.

TOOBIN: Sending me away.

ZAHN: You can't always believe what's thrown in at the last minute, can you?

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