The Malvo verdict

Despite the initial leanings of some of them, the twelve members of the Virginia jury that convicted 18-year-old sniper Lee Boyd Malvo of capital murder ultimately voted against imposing the death penalty.  Predictably, prosecutors and family members of his victims have expressed their disappointment.  Although I haven't seen any polls, I suspect that a substantial portion of the public, probably a fair-sized majority, may also disapprove of the jury's decision and believe that his crime warranted the death penalty — and indeed, on the basis of what I know, that would be my personal opinion as well. 

Like me, however, disapproving members of the public can, at best, have followed the trial from a remote distance, filtered through press accounts.  We have not been privy to all the evidence; we have not seen what the jury saw or heard what it heard; and most importantly, we have not sworn the oath that jury swore nor participated in the deliberations its members conducted in the fulfilling of that oath.  We should therefore be loathe to second-guess its decision.

From what I know through press reports, I have no reason to doubt that the prosecutors who attempted to persuade this jury to sentence Malvo to death — for a crime committed while he was still technically a juvenile — were capable and skilled professionals who did their jobs competently.  I have no reason to doubt that through their efforts, the State of Virginia got a fair trial.  Nor do I have any particular reason to suspect that there was a gross imbalance in the quality and capabilities of the prosecution and defense teams that could have resulted in a skewed process.

If you believe in the capital punishment system as it currently exists in America, you must rely on juries to serve as the collective conscience of our community.  If, in general, you trust juries to wield the awesome power to condemn someone to death, then you must likewise, in general, respect their prerogative to spare someone from that punishment.  I know of nothing to take this case out of that general proposition; my own (necessarily less than fully informed) opinion as to whether the death penalty would or would not have been appropriate isn't enough to do so.

Malvo was being tried for only one of the many murders he committed.  Legally, prosecutors could try him again and again on each of the other crimes, and indeed do so in several different states in addition to Virginia; eventually, some prosecution team somewhere might well get a different result in the sentencing phase. 

That prosecutors could do this, however, does not mean that they should do so, even if doing so would please the members of the public who think that both Malvo and his co-conspirator John Allen Muhammad should be executed for what they did.  Although I disagree with the jury's decision, I nonetheless believe that all of the relevant prosecutorial authorities ought to respect it rather than trying to supercede it with a new prosecution.

Unfortunately, however, I frankly doubt that all of the relevant prosecutors will be able to withstand the public pressure.  Indeed, authorities in Alabama are already making noises about trying Malvo there:

[Montgomery Police Chief Jim] Wilson said the primary reason to try Malvo in Alabama is the strength of the case against him in Montgomery, including witnesses who saw him at the scene of the shootings.

This misses the point by a substantial margin.  The Virginia jury didn't fail to convict Malvo of capital murder, so witnesses who saw Malvo at the scene of the Alabama shootings wouldn't add anything substantial or meaningful to what the Virginia jury heard.  The crimes in both states — sniper murders of essentially random victims — were basically the same, and I'm unaware of any reason why the general evidence of aggravating and mitigating circumstances that would be presented in an Alabama trial would be any different than that which the Virginia jury has already heard.

A zealous prosecutor would probably answer my qualms by saying, "He shoulda thought of that [i.e., the risk of multiple prosecutions with possibly inconsistent results] before he committed so many different murders in so many different states."  And that is indeed the correct and wholly sufficient answer to the legal question of "Can we try him again?"  I submit, however, that unless someone can identify some fundamental flaw that would lead us to disrespect the Virginia jury's verdict, other prosecutors still ought to respect it.