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In defense of accused soldier



Last modified: Monday, April 11, 2011
Above his garage in Weare, Dan Conway is fighting a government narrative.

The narrative says his client, Army Pfc. Andrew Holmes, a 19-year-old from Boise, Idaho, shot and killed an unarmed 15-year-old boy, Gul Mudin, on Jan. 15, 2010, in La Mohammad Kalay, a farming village in Afghanistan. After conspiring to kill the boy and calling him over to where they stood, Cpl. Jeremy Morlock threw a grenade at him and Holmes fired his machine gun.

First reported last year, the story has taken off in recent weeks as German magazine Der Spiegel and now Rolling Stone have published photos taken after the incident. In one, Holmes is crouched above Mudin as he lifts the dead boy's head by his hair. Holmes's other hand holds a cigarette.

In another photo, Morlock strikes a similar pose with a teeth-bearing grin. Morlock has pleaded guilty to three counts of premeditated murder and is serving 24 years in prison for his role in what has been dubbed a "kill team" that murdered innocent civilians.

"Not very flattering," Conway, a 2007 graduate of the University of New Hampshire School of Law, says of Holmes's photo.

But the 32-year-old attorney doesn't see a murderer in Holmes, who is awaiting trial. Instead, he sees a shell-shocked 19-year-old on his first combat tour who was following orders and was just nearly killed by a grenade.

"There was no 'kill team.' There was no scenario," Conway said. "There was a young kid from Boise, Idaho, who . . . when he was told to do something, he did it the best he could. As it turns out, he missed."

This isn't Conway's first involvement in a high-profile military court case. As a law student clerking for Gary Myers, who lives a few miles away, he also helped out with the defense of Lance Cpl. Justin Sharratt, who was cleared of murder in a case that accused a group of Marines of killing 24 Iraqis in the city of Haditha in November 2005.

Before that, Myers had defended Chip Frederick, the first soldier to stand trial in the Abu Ghraib prisoner torture and abuse case in Iraq. The 67-year-old's involvement in soldier defense cases goes back to My Lai, the 1968 mass killing of hundreds of unarmed citizens in South Vietnam. As a young Army judge advocate, Myers defended Capt. Ernest Medina, who denied ordering the massacre and was acquitted of all charges.

"We have had the good fortune of being involved in the major international-political military law cases down through the years," said Myers, who recounts the highlight of his career as the first military court case to use DNA evidence in 1987.

 Setting up shop

Myers's law firm of 39 years, Gary Myers & Associates, is technically based in Washington, D.C., but Myers spends half the year in Weare. He and his wife moved there in 1989 from Alexandria, Va., to raise their newborn daughter while one of their sons attended Proctor Academy.

"I've tried to only be the soccer coach for my child and share a beer with the guys at the Weare Towne Grille," said Myers yesterday, back stateside from defending a soldier accused of forcible rape in Korea. "I have no interest in being anything but just another resident."

Conway's office could double as a man cave. The carpeted loft boasts a couch, flat-screen TV and treadmills. The mahogany desk is from Sam's Club and the guest chair bears the marks of the family rottweiler. Lining the wall above the staircase are stacks of court sketches and thick military court files bookended by blue cover sheets. He picks up the Abu Ghraib file, thumbing in search of the infamous photos from that case.

"These days, every soldier has a digital camera, which means any photo can be distributed to the world in 30 seconds or less. It's a problem," Myers says. "My Lai was exposed because of pictures, also, but it took years for them to be known. The difference between (the Holmes) case and My Lai is that it wasn't because someone disclosed hard copies, but a couple buttons were pushed."

Conway's spare set-up is a function of how rarely he finds himself working out of his office. In his short career with Myers, Conway has visited Iraq seven times and Afghanistan once. He flies 120,000 miles a year to visit soldiers or argue cases and could live anywhere in the country. The firm's third lawyer is a woman who lives in Minnesota.

"We live in New Hampshire as a matter of quality of life," said Conway, a San Antonio native whose wife works at Concord Hospital.

 Wrong place, wrong time

Conway said he's visited Holmes, who has spent nearly a year in pretrial confinement at Fort Lewis in Washington state, several times and speaks with him as frequently as possible. In two weeks, Conway will appear in court to litigate several motions in Holmes's case. The motions include a request that Michael Baden, the former New York City medical examiner known for his testimony in the O.J. Simpson murder trial, be appointed as a forensic pathologist to determine how Mudin died based on the photos taken afterward. The boy's body was not recovered, Conway said.

Conway said even though the photos only show Mudin's back, there are no wounds consistent with machine gun fire.

"You don't need to be a rocket scientist to figure this out, but when somebody's shot with a machine gun you expect there to be some bullet holes, particularly some exit wounds," he said. "Essentially, we believe those photos illustrate that Andy Holmes was not the cause of death."

In June of last year, Holmes was charged with conspiracy to commit murder and premeditated murder, as well as a litany of other offenses, including possessing a human finger, wrongful use of hashish and taking or possessing photos of human casualties, Conway said.

Conway said other soldiers have testified that Holmes was initially on a hill about 100 feet away when the boy approached Morlock, who was standing behind a waist-high wall. Morlock yelled "Holmes, reposition!" and the 19-year-old ran down the hill and took a knee facing away from the boy, Conway said. Holmes wiped off his goggles and took a swig of water before Morlock yelled "Grenade! Holmes, shoot him!" prompting Holmes to fire off an eight- to 10-round burst that was wide left, Conway said.

"How is it that a machine gunner misses from nine feet with the machine gun if there was a conspiracy and he knew he was going to be firing at the guy? He missed because he didn't know there was a conspiracy, because he was in the wrong place at the wrong time, getting used by Morlock as a cover story," Conway said. "That's our basic defense."

Just before the grenade detonated, a witness testified that Morlock reached up and pulled Holmes down by the back of his uniform. Holmes was so surprised he left the machine gun on the wall and it fell down on his head, Conway said.

"This, according to the government, is a co-conspirator," Conway said.

Platoon leader Staff Sgt. Calvin Gibbs reportedly cut off Mudin's pinky finger and gave it to Holmes, who proudly carried it around in a zip-lock bag as a memento. Conway says Holmes never wanted the finger and got rid of it after Gibbs insisted he take it.

"The defense really there is that there's a not a rulebook for that," Conway said. "What do you do when you're a 19-year-old private in combat and your superior says, 'Here take a finger.' I don't know about you but I say, 'Thank you sir, that's mighty thoughtful of you.' And then you get rid of it, which is precisely what he did."

And the photo?

"The kid's 19 years old - that photo was not his idea," Conway said, adding that the entire platoon leadership was gathered around Mudin. "They told him to get in the photo, so he got in the photo."

Conway said he's unaware of Holmes having a criminal history as a civilian, unlike Morlock, who reportedly logged a string of offenses that included burning his wife with a cigarette a month before he was deployed to Afghanistan in 2009.

"As far as I can tell, he's a good kid from Boise who wanted to serve his country," Conway said. "He just found himself lumped in with a psychopath of no fault of his own."

 'Enlisted perspective'

Conway, who spent six years in the Marines, finishing in 2001 prior to the Sept. 11 attacks, said he can bring an "enlisted perspective" to his cases. Fourteen years after boot camp, he can still repeat the Marine definition of discipline - "the instant, willing obedience to orders, respect for authority and self reliance" - that was likely drilled into Holmes before he shot at an innocent Afghan boy.

"I know what it's like to have been 19 years old in a barracks room in Okinawa," Conway said.

Myers said countering the government narrative isn't just a process that takes place in the courtroom. The public affairs office of the Pentagon is often the first battle line, he said.

"Their first instinct is to isolate and vilify these young troops and remove any notion that they're part of the larger whole," Myers said. "They're not ignoring anything, but they are making every effort to treat these cases as aberrant behavior."

Both Myers and Conway say they feel a sense of duty in their work.

"They're service members. It's a self-selected society of individuals who are patriotic, they tend to be very intelligent," Conway said. "Most of our clients are good people who have found themselves in some trouble so part of our job is to protect them from the law."