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JonathanFriedmanThirdPaper 3 - 16 Aug 2009 - Main.EbenMoglen
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The Case of Don Ayala: The First American Contractor Charged With Murder in The War on Terror | | | No prison for contractor who killed Afghan | |
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- 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.
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