Offensive Defense

Can you believe it? The story begins, SAN FRANCISCO (Reuters) – The civilian attorney representing the U.S. soldier accused of murdering 17 Afghan villagers wants to replace the military lawyer assigned to the case after disagreements over how to handle his defense.

“You are fired, sorry, but we have much more experience than you,” Seattle-based John Henry Browne, the outspoken lawyer who has been the public face of the defense of Staff Sergeant Robert Bales, said in an email to military lawyer Major Thomas Hurley.

One recalls Shakespeare’s pithy comment in Henry VI, Part II where Dick says “The first thing we do, let’s kill all the lawyers.” That seems about right. The man accused of killing 17 Afghan citizens in a blind fury and who might well have been suffering from brain damage and battle fatigue after seven tours of duty in two different war zones is now depending on warring lawyers to save his own life. How ironic. It would be funny if it weren’t so sad. One of the lawyers was appointed by the military, the other selected by Bales himself; each has his own ideas about how to conduct the defense.

You have to love the way the firing of Major Hurley (which must be approved by Bales and the military before it becomes a reality) is accomplished by a terse, grammatically incorrect, self-promoting email message. And while the lawyers fight among themselves about the best way to save this man’s life, the accused is about to undergo a psychological examination to determine whether or not he knew what he was doing when he went out, twice, and allegedly shot seventeen civilians. The one bright spot in all this is that our system of law (despite the wranglings of the lawyers) still maintains a person’s innocence until proven guilty. Let’s hope the system prevails in spite of the lawyers. As Kant noted long ago: without courts of law we are barely above the level of the brutes.

Be that as it may, the story goes on, There was also disagreement over the decision to put Bales’ wife on the Today show, where she said her husband showed no signs of post-traumatic stress disorder, potentially damaging Bales’ most likely defense. What’s going on here? The defendant’s wife is dragged on a talk-show and attests that her husband seemed perfectly normal, though in an interview with ABC earlier she said he didn’t seem to know where he was or why. In any event, it is easy to understand why this must frustrate a lawyer who knows full well that Bales’ wife is not a trained psychologist and also sees that the best way to save his client’s life is to claim temporary insanity. But that’s the way we do things these days: we try the defendant in public while the public is still interested — interest does indeed wane rather quickly, as we know — and then we take the defendant to court.

So we have the man’s wife going on talk shows offering her unprofessional opinion about her husband’s mental condition. Meanwhile, wrangling lawyers argue publicly over the way to try their client who waits to see if he is found guilty, first in the public eye, then in the eye of 12 good men and women who are supposed to be impartial and presumably have not already judged the man before the trial begins. Again, if it weren’t so serious it would be funny — and if the families of the murdered victims back in Afghanistan weren’t waiting to see that justice is done.

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One thought on “Offensive Defense

  1. Hugh, it’s interesting. You mention that we try the defendant in public more and more, and yet in a lot of these recent cases it is (as your headline implies) the defense that puts their own client or case before the cameras first. I can never quite figure out the strategy, unless they are trying to wear down the prosecution by offering up so many explanations and muddy the waters so that the case either is dropped or the chargers lowered before it ever gets to a jury. You’ve got Hurley’s lawyer. George Zimmerman’s lawyer was on TV for a while (even though Zimmerman hasn’t even been charged yet). Amy Senser’s lawyer in the Twin Cities, etc. (she’s the wife of former Vikings star Joe Senser accused of drunken-driving, and fleeing the scene where she killed a stranded motorist). And a lot more. – dana

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