My Post-Mortem on the Graner Verdict

I’m veering off-topic briefly to talk about an old love that will not die, court-martial practice. In this case, it was superbly performed by Major Michael Holley, who prosecuted Specialist Graner of Abu Ghraib fame. As I’ve previously mentioned in this blog, I was Major Holley’s supervisor when both of us were on active duty, back when he was still Captain Holley. Most of my supervision, incidentally, consisted of me telling him to keep doing what he was already doing, and occasionally, of helping him get travel orders. The Army showed that it was very serious about the Abu Ghraib cases by assigning Mike to prosecute them. I say this because he’s unquestionably the finest courtroom attorney among the many dozens I observed in my five years of court-martial practice (which is about as much as the Army lets you get, unf) and that’s obviously not just my opinion. Mike has the rare ability to be erudite yet modest, prepared yet never cocky, solemn yet never sanctimonious, humorous but always respectful. That said, I have no inside knowledge from Mike, which is how it should to be.

Here are some generalized observations, not necessarily in any order. In a few cases, I have cited the Army’s official jury instructions and trial procedure from Department of the Army Pamphlet 27-9, the Military Judges’ Benchbook. It’s a big pdf beast, so if you intend to follow this bouncing ball, the best I can do is to give you the page number that appears in your pdf window, in the lower left corner:

1. Result: Military panels are human beings who return unpredictable results. Lawyers can give great performances and obtain bad results, and vice versa. No person who did not hear the evidence can know what result was appropriate. Still, the conviction and sentence were strong, Andrew Sullivan’s hyperbolic criticism notwithstanding. The panel convicted him of every charge, save one conviction on a lesser included offense. The max sentence was 17 1/2 years; Graner got ten. Max sentences, by the way, almost never happen if there’s any evidence of good duty performance, which there usually is. Graner will miss the remainder of his youth in prison, and that’s no small punishment for a man who was not convicted of killing anyone.

2. Sentencing in the Military. The accused has the option of being tried and sentenced by a judge alone, by a panel of officers, or (except for officers) by a mixed panel of officers and enlisted, as in this case. Military panels need not reach unanimous verdicts except to agree on a death sentence. It normally requires a 2/3 vote by a panel to convict on a charge or agree on a sentence, but to agree on a sentence in excess of ten years, it requires a vote of 3/4 or more. Page 23. For a ten-member panel (as in this case, although the number varies from case to case according to member detailing and counsel challenges), that means just three members could have capped the sentence at ten. Pages 42, 103.

3. Punishing Graner for Embarrassing America. Sullivan and some others may be motivated by the publicity factor here. In a case like this, a panel has a fine line to walk. The judge will instruct the members to make their own decisions, based solely on the evidence properly before them, and free of any “command influence” by superior officers or civilian officials. Those issues are inevitably the subject of motions and detailed question by the defense counsel, and indeed those became issues in this case. If there is any hint that a member will consider it, he’s probably going to be excused from the panel. In my own experience as a committed defense hack, panel members tend to follow these instructions–in fact, all their panel instructions–very strictly, although counsel cannot know how the members deliberated or voted, which means that there’s admittedly some guesswork in my conclusion here. Panel members may consider the effect of a crime on morale, good order, and discipline in aggravation, but in their rulings and instructions, judges (in this case, Colonel Pohl, an experienced trial judge) err on the side of caution, particularly when it comes to the (highly improper) consideration of bad media coverage (courts-martial are open to the public and the media, although few judges permit cameras or recording devices and summarily administer sucking chest wounds if a cell phone goes off). The key issue is whether the publicity prejudiced the accused’s right to a fair trial (for an excellent discussion of these issues, see this case, which originated in the trainee rape cases at Aberdeen Proving Ground several years ago). The panel probably discounted most of the publicity here, and rightly so.

4. Close that door and lock it. One of the defense witnesses was asked by the defense counsel about Graner’s obedience to orders. Ouch. That flung open the door for Major Holley to ask about Graner’s tendency to disobey orders. So much for the Nuremberg defense, which is no defense in this case (Page 818) because any order to abuse a prisoner was patently unlawful. Why argue it? The defense counsel has wide latitude to present a defense, and panels never have to explain their verdicts. Lawyers call that asking the panel or jury to “nullify” the law, but panels only do that in the most sympathetic cases, which this wasn’t. I don’t have the transcript, but asking about Graner’s tendency to obey orders may have been a tactical error by the defense (and I’ve made my share of those, too). In this case, Major Holley must have done his homework by carefully interviewing the defense witnesses before their testimony.

5. It strikes me as odd that Graner was the first to be tried. The typical tactic is to try a small fish first–one who knows where the bodies are buried. The small fish then makes a deal for a sentence cap and immunity from the use of his testimony against him. The lawyers for those small fish might be worried about that by now.

6. Graner didn’t testify. That’s his absolute right. P. 92. The members would have been instructed not to consider it, unless the Defense Counsel asked the judge not to give the instruction. I also believe that panels generally follow that one. I’ve had my share of clients not testify and still get acquitted of the major charges, despite plenty of evidence of guilt that didn’t quite reach “beyond a reasonable doubt.” Most panels won’t hold it against an accused that he didn’t testify, and that, too, is how it should be, since it’s no use exercising a right if doing so only guarantees your conviction.