• This is a very puzzling essay. Plainly one cannot appreciate its argument completely unless one is in sympathy with its apparent view that the defendant is being unjustly treated if he is held responsible for shooting a prisoner. He is a former soldier doing a soldier's job with a soldier's training, and if he were a soldier on active duty he would be tryable under the UCMJ for homicide, and I see no reason to think a conviction unlikely. Being tried as a civilian is quite a break for him, but there's nothing about trying him as a civilian that gives him any reason in justice or equity to expect to be exculpated. He is factually guilty of killing, without legal excuse, and he is not in any equitable sense entitled to mitigation of liability because of the stresses foreseeably incident to doing a stressful, violent job.

• But even if one were in sympathy with your premise, he was not an uncounseled defendant, and his acceptance of the guilty plea, given the sentencing disposition that followed, looks like as soft a deal as you could possibly want. Neither side has any particular confidence in its case, the defendant because he is not safe in testifying, for whatever reasons, and the prosecutor because he does not want to try events happening so far from the jury's normal daily experience. The Justice Department wants a plea, not a trial, anyway, so under these circumstances you could be pretty certain a deal would happen at least 99 times out of 100.

• So the Monday-morning quarterbacking isn't very sensitive to the realities, so far as you describe them. And your law doesn't make any sense to me. Why does the jury—charged that if the level of stress on him was so high as to prevent him from forming the intent to kill prior, even by the smallest fraction of a second, to the act of killing, then he is guilty of manslaughter—acquit because of the stress? You might say they're going to acquit because the victim was unsavory, but if they do that they're going to have to acquit not only against the evidence but against a specific instruction that the law says it doesn't matter what the prisoner had done, or how much of an enemy he was. And you don't really believe that's the ground of acquittal; you lean on the stress defense, which plays straight to conviction on the lesser included offense. As that's the one to which your guy pled guilty and got a walk, it's difficult to see what, no matter how much of a cheerleader for this charming citizen one is, one has to be upset about.

The Case of Don Ayala: The First American Contractor Charged With Murder in The War on Terror

-- By JonathanFriedman - 18 May 2009 link text

The Facts

Mr. Ayala was charged with 2nd degree murder by a federal prosecutor in Virginia. He accepted a plea bargain for the crime of voluntary manslaughter and his sentence was reduced to five years of probation by a judge last week. At the sentencing hearing, the defense introduced testimony of an expert in ‘traumatology’ who said that "that Ayala's action can be explained by the ‘perfect storm’ of stress." The judge considered the considerable emotional wear of accumulated combat stress sufficient to deviate from federal sentencing guidelines in reducing Ayala’s punishment.

Declining His Day In Court

There’s precedent for such an argument. The Black Panther leader Huey Newton successfully overturned a manslaughter conviction by arguing that, he entered a state analogous to unconsciousness after he was shot in the stomach, and the acts he was accused of committing occurred as automatic reactions while he was in this trauma-induced state of unconsciousness. People v. Newton, 8 Cal. App. 3d 359. Mr. Ayala, similarly could have argued that he entered a shock state upon witnessing the horrific immolation of a close friend.

Further, given that the man Ayala stood accused of killing was a Taliban terrorist who had committed an extraordinarily cruel act of violence against an unarmed woman, it is likely that many potential jurors would have refused to convict Ayala of any crime. The jury’s capacity to nullify this way is often cited as an important check on the power of prosecutors.

However, in order to exercise the right to assert a defense or to leverage the mercy of the jury against prosecutors, Ayala would have had to turn down a plea agreement for voluntary manslaughter, and stand trial for second degree murder. Taking the plea agreement capped his potential jail time at a maximum of eight years; if convicted of murder, he would have faced a much longer sentence.

Under any similar circumstance in which a client charged with a crime like murder could plead to a crime like manslaughter, it would be very difficult to counsel the client to go to trial. Even if the lawyer believed the client to be entirely innocent, it would be difficult, and possibly irresponsible to walk away from such a deal. After all, innocent people are convicted of serious crimes every day in this country, and even where the prosecution looks flimsy and the defense’s case seems strong, the variability of the jury and the inherent interpretive nature of the fact-finding process makes any trial risky. And, although the appellate process may ultimately iron out wrongful convictions, such a process can often take longer than the sentence the defendant would have served had he pled guilty to the lesser offense.

A Possible Answer in Prosecutorial Discretion

Concerns of efficiency seem to be outweighing fairness on a case-by-case basis. Prosecutors have heavy caseloads, and their efficacy is assessed by their rates of conviction, so their incentive is to avoid time-consuming trials where they risk losing by pleading out as many defendants as they can. This might explain why a prosecutor would always seek to charge the accused with most severe crime for which he can get an indictment. The higher charge gives the prosecutor more bargaining power, and the defendant more to lose by going to trial. It should also be noted that the same set of prosecutorial incentives means that very serious violent criminals may often get lighter sentences than they deserve, because prosecutors prefer deals to trials.

Although as a society we cannot condone extrajudicial revenge killings, a prosecutor has the power to recognize equitable aspects that will give the process the best chance to reach a just result. If Ayala had been charged voluntary manslaughter, he could have presented an argument to the jury that his severe emotional stress rendered his acts non-criminal, instead of merely mitigating his crime.

The complete discretion of prosecutors, both in charging defendants and in offering them deals cuts the trial process out of the mechanism for securing criminal convictions in many or even most cases.

Word Count: 997 excluding headers.

Other News Articles For Convenient Reference

Contractor gets probation in death of Afghan prisoner

Cryptome: USA v Don Ayala: HTS Management, Army Leadership on Trial Too

Security contractor pleads to voluntary manslaughter in killing of prisoner

Probation sought for U.S. contractor

No prison for contractor who killed Afghan

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