The advocate

Craig Cooley, L’77, has represented defendants in 70 capital cases, but the name of one client will forever lead any description of his career: Lee Boyd Malvo.

Malvo was 17 when he and John Allen Muhammad terrorized the Washington, D.C., area during a three-week, sniper-style shooting spree in 2002. Their victims were random people going about their day-to-day lives. Ultimately, the pair killed 10 people and seriously wounded several others, including a man near I-95 in Ashland, Virginia, just north of Richmond, before their arrest. During the attacks, schools closed, athletic events were canceled, and people sheltered indoors. Fear was widespread.

Muhammad, 42 at the time of the killings, was sentenced to death in 2003 and executed at Greensville Correctional Center in Virginia in 2009. Malvo received the lesser of two sentences available to a jury that sentenced him in Chesapeake, Virginia — life in prison without the possibility of parole — and agreed to the same sentence after pleading guilty in Spotsylvania. He also received multiple life sentences for six murders in Maryland.

In June 2018, three judges on the 4th U.S. Circuit Court of Appeals ordered Malvo’s resentencing in the Virginia cases. They did so, the judges wrote, “not with any satisfaction but to sustain the law.”

In 2012, the Supreme Court declared in Miller v. Alabama that sentencing minors to life without the possibility of parole is unconstitutional if its imposition is, by law, mandatory. A second decision, Montgomery v. Louisiana in 2016, clarified that the Miller ruling applies retroactively. As a result of these decisions, courts across the country have been engaged in proceedings to resentence inmates to whom the ruling applies. Some of the former juvenile defendants are now middle-aged and older, and some of their releases are inviting stories of redemption and second chances.

Bobby Hines was 15 when he received a mandatory sentence of life without the possibility of parole. He was an eighth-grader, “a small kid, just 5-foot-3,” according to the Associated Press, when he and two friends murdered 21-year-old James Warren in Detroit in 1989 in a drug dispute. His resentencing under Miller made him immediately eligible for parole, so in 2017, he walked out of prison older and, by all accounts, much wiser and deeply penitent at age 43.

Among his supporters were the father and the sister of his victim. At Hines’ parole hearing, Warren’s father spoke on Hines’ behalf, saying he had been punished enough. Warren’s sister met with Hines after his release for three hours. The AP published a photo of them hugging tearfully when it ended.

“To me,” she told the reporter, “forgiveness is up there with oxygen.”

Hines is perhaps the kind of offender that Supreme Court justice Elena Kagan had in mind when she wrote for the court’s majority in Miller that “children are constitutionally different from adults for purposes of sentencing [and] have diminished culpability and greater prospects for reform.” One reason for children’s diminished culpability, she noted, is their greater vulnerability “‘to negative influences and outside pressures,’ including from their family and peers.” For these and other reasons, Kagan and the justices who joined in her opinion concluded that sentencers may impose life sentences on juveniles but that the penalty may not be mandatory.

“Mandatory life without parole for a juvenile … prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional,” Kagan wrote.

Cooley, Malvo’s attorney, is a three-time University of Richmond graduate — undergrad in 1969, then a master’s in 1975 before earning his law degree in 1977. Not long before he got to Richmond Law, the school introduced a new policy that allowed students to work. Cooley put himself through law school stringing tennis rackets “at a couple dollars apiece,” he said. It was enough to support the family while his wife finished nursing school. He recalls some professors’ style as “call on you, question you, embarrass you if possible. … It scared me.” Looking back, he believes it helped prepare him for trial work. “I might not have thought it at the time, but it probably was a good experience.”

He did not adopt those tactics as part of his own professional demeanor. When Virginia Super Lawyers asked colleagues for descriptions of him for a 2006 profile, they used words like “gentle,” “mellow,” and “understated.”

“He reminds me of Matlock, the lawyer played by Andy Griffith,” one of them said. “A low-key, persuasive attorney who makes his rural background an asset.” While the profile noted a joking line on Cooley’s résumé — “I have lost to every prosecutor known to exist in central Virginia” — it also quoted a prosecutor who called Cooley, “in my humble opinion … the best criminal defense attorney in the city of Richmond, and maybe the entire state.”

Cooley became Malvo’s defense attorney in 2003 after a phone call from Judge Jane Marum Rousch, who was overseeing the case and wanted to appoint an experienced defense attorney. When she called, she suggested he talk it over with his family given the case’s public profile. The response from Cooley’s wife made it an easy decision. “This is what you do,” she told him. “If not you, who?”

The public announcement of Cooley’s appointment brought national reporters to his office and hordes of media trucks to the courthouse during his initial visit, but it did nothing to prepare him for his first meeting with his client waiting inside. His only awareness of the case was what he’d read in those media outlets.

“What I found was just a 17-year-old, in many ways considerably more respectful than most American 17-year-olds,” Cooley said. “In fact, that was something a lot of witnesses commented upon, that Lee was much more like a teenager from the 1950s in this country than he was a current teenager.”

Malvo’s arrest and trial coincided with his first meaningful separation from Muhammad in three years. The picture of him that emerged was of a highly impressionable and deeply obedient boy under the complete control of the profoundly disturbed and disgruntled Muhammad.

Muhammad had befriended Malvo and his mother on the Caribbean island of Antigua when Malvo was 14 years old. His mother then left him under Muhammad’s care when she emigrated to Florida. The pair moved from place to place together as Muhammad’s life disintegrated with a failed marriage, the loss of custody of his children, and other setbacks that embittered and emboldened him before culminating in the pair’s shooting spree.

“When we interviewed [Malvo], our belief was that he was under the spell of Muhammad and that would wear off as time went on,” Brad Garrett, an FBI agent who investigated the case, told The Washington Post in 2012.

This supposition, that Muhammad controlled Malvo, was part of the prosecution’s strategy when it tried Muhammad for one of the Virginia killings. Their problem was that much of the physical and eyewitness evidence linked Malvo, not Muhammad, to the crimes, according to an account of the trial by The New York Times. “The evidence against Mr. Malvo has made him virtually a shadow defendant in Mr. Muhammad’s trial,” the reporter wrote. “For the prosecution, it has meant trying to construct a story line for the jury that portrays Mr. Malvo as a puppet controlled by an often unseen master, Mr. Muhammad.”

Malvo made a similar impression of excessive deference on Cooley.

“He would never be a smart aleck,” Cooley said of their early conversations. “If you were saying things to him that he didn’t want to hear ... if you offered criticism of [Muhammad] or suggested that things that he had said to Lee were not accurate, Lee would never snap back at you. He would simply shut down.”

Cooley believes that the Virginia jury that chose life in prison without parole over the death penalty for Malvo might have offered an even lesser sentence had it been given the option. The Virginia jurors, Cooley told the Baltimore Sun for a story about the resentencing ruling, “opted to go as low as they could under the structure they were given on that date. … They may have gone lower if they knew they could have.”

His client is now 34 but still small-statured. “He’s still a kid to me,” Cooley said. He estimates that, when they first met, Malvo was 5-foot-3-inches “and probably 115 pounds. … He’s probably 5-foot-6 now, might be 150.”

Malvo is kept isolated at Red Onion State Prison, a Supermax site in southwestern Virginia, in part for his own protection. Cooley communicates with his client frequently, often by letter. During his visits to Red Onion, Malvo is heavily restrained.

“When they bring him, he’s in leg irons … handcuffed with a belly chain around him, and on a leash,” Cooley said. “They sit right outside the door, and they run this leash, and they put him in the chair there. And I’m directly across from him so that if he decides to attack me, they can pull him back with the leash. I’m 71, but I can whip Lee.”

Cooley is not an opponent of the death penalty generally, but he advocated against its application to people who committed their crimes while juveniles up until the Supreme Court declared it unconstitutional in 2005. Malvo’s 2003 trial, he believes, may have helped shape the court’s analysis of the nation’s evolving standards of decency in the ruling.

“If this case didn’t merit a death penalty, then perhaps no juvenile should be executed,” he said. “The jurors, in my mind, elevated us, elevated our humanity in our society with that verdict, and that affected me. It gave me even greater faith in our system.”

Malvo’s resentencing hearing will further test the justice system’s — and the public’s — appetite for the arguments about juvenile vulnerability and diminished culpability. 

“A lot of people say, ‘Well, clearly they don’t mean that someone like Malvo shouldn’t spend the rest of his life in prison,’” said Julie McConnell, director of Richmond Law’s Children’s Defense Clinic. “He’s one of the worst of the worst in many people’s minds.”

Through the clinic, she and her students offer pro bono representation to indigent youth throughout central Virginia. Based on her knowledge of Malvo’s case and Miller’s reasoning, she believes the courts have valid reason to reconsider Malvo’s fate.

She represented the first Virginia inmate resentenced under Miller, Azeem Majeed, who participated in a brutal murder in Norfolk in 1995 when he was 17. At his resentencing hearing, his two life sentences were reduced to approximately 29 years. With more than 20 years already served, he can now look forward to his release, is eligible to participate in re-entry programs, and has become “a voice for nonviolence, a voice for empathy for victims and restorative justice,” McConnell said, a point she underscored in local media interviews when he was resentenced.

“In his case, we have a very clear example of someone who committed very heinous crimes for which he feels incredible remorse, yet he has spent the entire time he has been in prison, for more than 20 years, without ever getting in trouble — not once,” she told reporters.

McConnell said that the analysis that led to Majeed’s resentencing applies equally in Malvo’s case, even given the horrifying nature of the sniper killings.

“[Majeed] and his co-defendants allegedly beat a man to death with a concrete block,” she said. “This is in no way a minor or insignificant crime. But what the Supreme Court has said is that even if the crime itself is horrific, you still need to look at the fact that they are young people whose brains are not fully developed, who have the potential to mature into someone that is better than that.”

Cooley argues that the mitigating circumstances of Malvo’s young life and subsequent remorse are too overwhelming to ignore.

“The bottom line was that Muhammad trained Lee as if he was a child soldier,” Cooley said. He even invited an expert on child soldiers to testify on Malvo’s behalf.

In such circumstances, “concepts of right and wrong are completely reversed,” Cooley said. “If the alpha male says, ‘We’re going to go into that village, and we’re going to kill every child in that village,’ that’s the right thing to do. It may seem to those of us looking from the outside to be a horrible thing to do, but for the child soldier, that’s exactly the right thing to do.”

Muhammad, he said, used his deep understanding of human nature to condition Malvo to follow orders and trust him completely. Witnesses at trial affirmed Muhammad’s charisma. His former wife called him “a pied piper,” and his oldest son testified that his father could persuade him “to do anything.” The son testified, “If my mother had not fought for me, it would have been me in that car instead of Lee Malvo.”

During Malvo’s years in prison, he has matured, Cooley said. “He got his high school diploma. He’s taken his college courses. He has done everything you would hope an inmate would do.”

Malvo expressed remorse in the last public interviews he gave, when media outlets ran stories coinciding with the 10th anniversary of the killings, in 2012. “I was a monster,” he told The Washington Post. “There is no rhyme or reason or sense.”

He said he has come to understand and regret the breadth of the devastation he caused. He was outwardly apologetic, the Post said, but also resigned to his inability to ever express sufficient remorse.

When a host of NBC’s Today show asked him about his victims, he said they should just try to forget about him. “Please do not allow my actions and the actions of Muhammad to hold you hostage and continue to victimize you for the rest of your life. … Do not give me or him that much power.”

Today also reached out to a family member of one of Malvo’s victims.

“We recognize that he was tremendously under the control of John Muhammad and he was, probably a good word would be brainwashed … and has had some years to recognize what he did,” said Bob Meyers, whose brother was killed at a gas station. “Our understanding is that he, given the chance, would not have chosen to take the same course again, but he can’t alter that.”

Regardless of the outcome of Malvo’s resentencing hearings in Virginia, six other life sentences in Maryland will stand because in those cases, the judge had discretion; therefore, the sentences do not run afoul of Miller. Barring a new development there, Malvo’s lifetime incarceration is assured.

Nonetheless, Cooley will soon make arguments to a Virginia judge based on mitigation, remorse, and redemption. Similar arguments proved sufficiently persuasive in the lower-profile cases of Majeed and Hines. Can Malvo merit similar reconsideration?

Malvo’s case “is important for basically all other juveniles serving life without parole,” Cooley said. “How much of a benefit it will be to Lee is something else.”