Bar News - September 19, 2008
Protecting the Protectors: Representing Accused Soldiers
By: Craig Sander
NH Attorney Dan Conway - seen here in Iraq - defends US military personnel charged with various crimes.
Dan Conway, in a tent at Camp Victory in Baghdad, Iraq, was writing a motion for a case when he received the letter last year telling him he’d passed the NH Bar. He was thrilled, but the excitement quickly passed as Conway returned to the struggle of trying to exonerate an American soldier accused of murder.
Conway, 30, began his career with a bang in his second year of law school when he clerked for military defense attorney Gary Myers – a seasoned litigator who defended one of the soldiers in the My Lai incident of the Vietnam conflict. Conway’s first taste of military defense? The largest courts-martial in the history of the US Marine Corps – the Haditha case.
Myers, who is based in Weare but is not a NH Bar member, took on Conway as a clerk after Myers began representing Lance Corporal Justin Sharratt, who was accused with seven other marines of murdering 24 civilians in Haditha, Iraq, in 2005 after a roadside bomb was detonated under their convoy.
That civilians were killed was not in doubt, but the accused, their counsel and supporters argued a point that has dogged Coalition soldiers in Iraq: what qualifies as a threat and when are soldiers justified in the use of deadly force?
As of this summer, charges against Sharratt and three other defendants have been dismissed; one had charges dropped in exchange for testimonial immunity; another was found not-guilty after a jury trial; and one defendant is pending an appeal of the trial judge’s decision to dismiss charges on account of unlawful command influence. Only one soldier – Staff Sergeant Frank Wuterich, who led the raid in Haditha – remains accused, but charges have been reduced.
"Haditha changed the landscape of military law. The prevailing wisdom has been to take anybody even accused of wrongdoing and bring down the hammer. I think it’s my job to protect these soldiers and be the voice of sanity," said Conway. "Continuing the prosecution against SSgt. Wuterich after the other Marines accused of murder had their charges dismissed is troubling to me."
In 1997, Conway took a break from his education at the University of Texas – San Antonio to join the United States Marine Corps, where he served as an Intelligence Analyst in Okinawa.
During his tour, in 1999, a small republic in Southeast Asia called East Timor declared its independence from Indonesia. Anti-independence rebels quickly fought back with force and a United-Nations peace-keeping envoy was dispatched to the country. As part of that group, Conway was asked to brief the United States Speaker of the House Dennis Hastert and others.
"I was a corporal and I was asked to brief the Speaker and his party, with no advance notice," Conway said. "It was an experience; most people in the room at the time were attorneys and I saw the influence they had."
Thus was born Conway’s legal aspiration. When his tour of duty ended in 2001, he returned to the University of Texas to finish his undergraduate degree, and then was accepted at Franklin Pierce Law Center. Conway said that coming to New Hampshire was a great decision.
"It was a quality-of-life issue. My wife got a good job here, it’s a great area and the dean of the law school [John Hutson] was a former Judge Advocate General (JAG)," Conway said. "And by my second year I was very fortunate to have begun clerking for Gary Myers."
Conway began on the Haditha case as a clerk and after being admitted to the NH Bar in 2007, ended the case as co-counsel for Lance Cpl. Sharratt, who eventually had all charges against him dropped for lack of sufficient evidence.
Today, Conway is working "one case after another." He’s traveled to Iraq on three separate occasions, visited numerous military bases in the United States and recently returned from a trip to Afghanistan, where he’s defending Marines in another case of alleged murder.
Common threads unite all of the cases that Conway takes on, he says. With nearly every soldier he represents, he is seeing the toll that war takes on America’s fighting men, the effects of multiple tours-of-duty in combat zones and an increasing sense of fear to act when threatened. These are all problems, he says, that bring soldiers to the breaking point.
Conway said that by the time these men get into trouble and need his help, they’re already struggling. "Two of the clients I’ve represented were at the very bottom in their lives. They were 22 or 23, married. They can handle the 15-month deployments, but the trauma of heavy combat is the straw that breaks the camel’s back," Conway said. "They start having nightmares, incredible stress and they start self-medicating and then get into trouble."
In his recent work in Afghanistan, Conway interviewed witnesses of a battle that took place after a roadside bomb detonated in a Marine Corps convoy. The troops were then fired upon and they defended themselves, allegedly killing 12 and wounding 50. Soldiers were then charged with manslaughter and in court, Conway said, lawyers tried to "Monday morning quarterback" the battle.
"The procedure is now ‘Don’t fire unless rounds are hitting around you.’ It’s dangerous when a Marine has to fight the reaction he’s been trained for," Conway said. "Here in the states, law-enforcement officers have qualified immunity. If there is a suspected threat of deadly force, they are authorized to use deadly force to defend themselves. The irony is that a military police officer checking IDs on a base has more constitutional protection than the soldier on the front lines."
With US troops on the ground in two heavy conflicts, and with US military forces stretched thin around the world, Conway expects to remain busy.
"There is a lot of change going on with the way we try military cases and whether soldiers will eventually be liable for civilian prosecution when they return to the United States," Conway said. "It’s a really interesting time for military lawyers."
America’s Wounded Warriors
When Dan Conway takes on new clients, he says that many share similar challenges. Extended tours-of-duty, working under vague Rules-of-Engagement, suffering from Post Traumatic Stress Disorder and Traumatic Brain Injury – Conway’s soldier-clients have shouldered heavy burdens. Conway believes that it’s time the military took a closer look at its soldiers.
"When soldiers returned from battle, they would have to fill out a card that asked if they were suffering from stress or mental health issues, and of course they all wrote ‘No’," said Conway. "There’s a mentality that soldiers don’t want to admit they have a problem – that results in trouble. I think there needs to be more screening on the part of the military."
A particularly gratifying development for Conway, considering his decision to live and work in the Granite State, is the passage in the last session of the NH Legislature of HB1335, which establishes a commission to study the effects of post-traumatic stress disorder and traumatic brain injury suffered by New Hampshire soldiers and veterans returning from Iraq and Afghanistan. "I think it’s great that people are starting to take an active approach to the problem," said Conway.
Conway’s firm, Gary Myers, James Culp & Associates, runs an extensive military health care practice that deals with virtually every aspect of service-related medical issues. Conway says that’s important considering the high survival rate of soldiers injured in explosions.
"Access to health-care for post-traumatic stress disorder and traumatic brain injury are issues that are dear to my heart. With increasing frequency we’re seeing soldiers and Marines that have survived multiple explosions," Conway said.
While the technology allowing serve-members to survive explosions has improved dramatically over the last few years, we still have much to learn about traumatic brain injury."