If it looks like jury nullification and walks like jury nullification and quacks like jury nullification, it’s probably jury nullification.
It may be that there’s another explanation for the verdict in the military trial of Captain Robert Semrau, but it sure isn’t the obvious one.
Capt. Semrau is the 36-year-old Canadian soldier who on Monday was acquitted of three charges – including second-degree murder – but convicted of one count of disgraceful conduct. All the charges relate to a single incident, the alleged shooting death of a gravely wounded Taliban fighter on Oct. 19, 2008, in Helmand Province in Afghanistan.
Capt. Semrau’s conviction on the disgraceful conduct charge raises an obvious question – what did he do that was disgraceful if he didn’t shoot the wounded Talib?
By all accounts, the married father of two little girls is considered an excellent soldier and an upstanding and honourable man.
Yet by just about every indicator usually used in such matters, military prosecutors arguably proved their case.
Certainly, despite the absence of a body (the Talib’s was never retrieved from the battlefield, the allegations not arising until about two months later) or physical evidence, no one seems to ever have suggested at the court martial that a badly wounded Talib did not in fact die that day, or that this was all a mirage or something imagined through the fog of war.
An Afghan interpreter testified he saw Capt. Semrau fire the second bullet into the Talib’s body.
There was a cellphone video introduced at trial which showed a wounded man, allegedly the wounded man, lying still and unmoving.
There was contradictory testimony from members of Capt. Semrau’s small Operational and Mentor and Liaison Team (OMLT), with two soldiers saying Capt. Semrau told them afterward he had shot the Talib to put him out of his misery and the third denying any such discussion had taken place.
But there was also a potential explanation for the differing accounts, though the jury never heard it because the judge ruled it was inadmissible.
According to former corporal Tony Haraszta’s last-minute revelation, the unit had also discussed a cover-up at that team meeting, and the man who raised the idea, Warrant Officer Merlin Longaphie, was also the soldier who denied that Capt. Semrau had met with the team after the shooting and told them it was a mercy killing.
Capt. Semrau didn’t testify. His defence team called no evidence. In other words, the jurors were given no alternate explanation and had no denials ringing in their ears when they retired to consider their verdict.
As a smart lawyer friend of mine says, “The law is supposed to be consistent with or equivalent to some moral code. The question here is, was it?”
Jurors, whether civilian or military, usually get things right.
They accept the invitation and responsibility to enter the sometimes complex world of the law and to bring their life experience and common sense to bear, and, to a surprising degree, that collective wisdom usually also leads them to the legally correct result.
But what if, as my lawyer friend says, they were unhappy with the relationship between the law and the inherent moral question? What if they believed the punishment – in Capt. Semrau’s case, conviction on second-degree murder would have meant life in prison with no parole for at least 10 years – didn’t fit the crime?
It seems pretty clear to me that was the case here, that the jurors – though a criticism of them was that they are administrative and logistics officers, with no one from the combat arms – found a disconnect either between the severity of punishment and crime or between the law and morality, or perhaps both.
If that’s so, it would be akin to the several trials of abortion provider Henry Morgentaler, who performed safe abortions for women at his clinic for years in defiance of the Criminal Code. He was acquitted by juries every time, and went to jail only when one of those acquittals was reversed by a higher court. Those juries were plainly expressing their dissatisfaction with the state of the law.
The approval that has thus far greeted the military verdict is founded not in evidence but in supposition – not that Capt. Semrau, in the vernacular, didn’t do it, but that that he must have been acting mercifully. The Talib, after all, had life-threatening wounds to his abdomen and his legs from an attack helicopter called in to help the Canadians and the Afghan soldiers working with them; the small unit was in no position to call in a medical evacuation for him and was in an area overrun by hostile forces. The Talib must have been suffering terribly.
These were some of the things that ran through my head too, when the allegations against Capt. Semrau were first made public.
Yet every soldier I asked about it said pretty much the same thing: The Geneva Conventions, the International Law of Armed Conflict and the Canadian soldier’s bible on such matters, Duty with Honour: The Profession of Arms in Canada, all are firm that once a soldier is injured and hors de combat, French for “out of the fight,” he is considered a prisoner of war, and deserving of every protection.
It reminded me of something I once heard my favourite commander say, and this was in the early spring of 2006 in Kandahar.
Lieutenant-Colonel Ian Hope was addressing his troops at a grimy and isolated base. “We need discipline,” he said, “and we need to keep up our professionalism – that’s what distinguishes you from every other guy with a gun in this country.”
I should be clear: Lt.-Col. Hope was particularly talking about the need for his men to shave regularly, but he was also talking about much else. I wonder if that distinction between Canadian soldiers and every other guy with a gun in Afghanistan now will be more difficult to establish.
*** One question: if YOU were lying on a battlefield, with gaping holes in your abdomen and God knows where else - would you not want to be put out of your misery? Even the Taliban fighter knew that was better for him. Capt. Semrau is a soldier that other, average soldiers read about with awe. This prosecution was a waste of time and resources. MS ***