After he defended ’70s serial killer Ted Bundy, before he convinced a judge to go light on the “Barefoot Bandit” last year, and before the soldier accused of killing 16 innocent civilians in Afghanistan called last week and asked for his help, Seattle defense attorney John Henry Browne tackled one of the most difficult death-penalty cases any lawyer has ever handled.
The client was Benjamin Ng, who was accused, along with two other defendants, of gunning down 13 people in a 1983 robbery-gone-massacre, the state’s worst mass murder in history. Browne’s client, Kwan Fai “Willie” Mak, and the unrelated Wai-Chiu “Tony” Ng were all arrested after the only man to survive the shooting spree in Seattle’s Wah Mee gambling club fingered the trio.
The ringleader was Willie Mak, and he got the death penalty, a sentence later overturned in federal habeas corpus proceedings. Tony Ng, represented by Seattle defense attorney John Muenster, avoided a murder charge, but went down for robbery. But it was Benjamin Ng, Muenster told The Daily Beast, who presented the biggest challenge to defend. Ballistics matched 11 of the 13 murders to Benjamin Ng. If Willie Mak was going to get the death penalty, Ng surely would, too.
“I thought it was an almost un-winnable case,” Muenster said. “These were totally innocent victims.”
But Browne found a way to win. The towering Tennessee native had his client testify about a head injury. The surest way to avoid the death penalty (other than a “not guilty” verdict, of course) is demonstrating that your client had “mitigating circumstances” that caused him to commit the crime, that he’s not just a heartless psychopath. Somehow, Browne got that point across to the jurors, and they spared his client’s life.
Thirty years later, in another high-profile case involving another suspect with a head injury accused of mass murder, the 65-year-old Browne is certain to employ similar tactics. We know this because he’s already trying his case in the media, as he has since before the world even knew 38-year-old U.S. Army Staff Sgt. Robert Bales’s name, when all anyone knew was that a soldier was accused of sneaking away from the remote Afghanistan outpost of Camp Belambay on foot last Sunday, March 11, stalking into a neighboring village and killing people, one by one. By the end of the rampage, nine children, three women, and four men were dead, said witnesses and Afghan authorities. The killer had set fire to some of them.
Within a day of the incident, the murders were already having an international impact, threatening to reshape the U.S. commitment to the war in Afghanistan and to shred what remains of the welcome mat still laid out for American troops there. What impact the killings will have on the war remains to be seen. But what everyone wants to know in the meantime is why the killer did it. What sends a man into such a dark place that he can look into the eyes of a child and pull the trigger, over and over again?
Were it not for Bales’s smart choice of an attorney, the world would still be wondering, waiting for the military tribunal that will ultimately decide the soldier’s fate, by a jury of commissioned officers who will probably wind up pondering not whether he’s guilty but whether he should pay for his crimes with his own life.
“This case is just going to be about does he get executed or does he spend the rest of his life in prison?” said Richard Hansen, a Seattle attorney Browne brought into the public defender’s office in 1976.
Some lawyers would wait for their client’s day in court, not wanting to tip their hands about a possible defense, giving the prosecution time to prepare for it. Not John Henry Browne. He has over decades established a reputation as a spotlight hog, reaching out to almost any reporter who’ll hear him bluster about why his client is innocent, why the prosecution’s guilty, why what may have seemed like a slam-dunk case is really an air ball.
It’s a strategy that prosecutors find maddening. They’re accustomed to holding an opening press conference, laying out the basic facts of a case at the start of a criminal proceeding, and then maybe hearing some terse reply from the defense. But Browne is known to stage multiple press conferences, to force district attorneys to respond to him or risk having every potential juror enter the courtroom already having sided with the accused.
It’s this tactic that explains why, before we knew Robert Bales’s name, we knew he was a decorated soldier and a devoted husband and father who had suffered some kind of traumatic brain injury, that he’d watched a fellow soldier’s leg get blown off the day before the killings, that this was to his great dismay a fourth tour in a war zone since the 38-year-old husband and father of two signed up to fight after the 9/11 terrorist attacks, and that he probably has post-traumatic stress disorder. Before we knew his name, we knew he was suffering, wounded.
“For God’s sake, who is not going to be under stress in Afghanistan in a small camp where there are 20 people in the middle of nowhere?” Browne said to CNN. He made similar statements to The New York Times, the Today Show, the Associated Press, and a host of other media outlets (He didn’t return a phone call from The Daily Beast, though.)
The media strategy is classic John Henry Browne.
“You’ve got a story Mr. Browne is starting to tell about a man who was just pushed one commitment too far,” said Dan Satterberg, perhaps Browne’s chief rival as King County prosecutor in Seattle. Satterberg has been battling Browne in court for decades. “If it doesn’t qualify as a perfect defense, it qualifies as a mitigating service, to take the death penalty off the table.”
The 6-foot-5’ attorney is known for his dramatic style, his half-dozen ex-wives, his gifted storytelling, his love of meditation, and his enormous ego. But above all that, Browne is both reviled and respected for one critical thing: an ability to convince the public, and the judges and juries from whence they’re spawned, that his client isn’t such a bad guy after all.
Colton Harris-Moore is a perfect example. The “Barefoot Bandit,” who turns 21 on Thursday, went on a crime spree that started in 2008 in the Pacific Northwest and spanned continents, stealing planes, boats, and cars. With Browne’s help, the kid copped a plea. At sentencing, “He was able to take this kid and put his mother on trial,” Satterberg said. “What a rotten childhood he had, the product of a mother who was neglectful, or worse. He got some sympathy for him, got a sentence of less than seven years that was probably less than what the kid deserved.”
Classic John Henry Browne.
“He is really a master at humanizing his client,” Satterberg told The Daily Beast. “And humanizing your client is the most important thing a defense attorney can do.”
Will Browne’s approach work in a military tribunal? Hard to say, said Satterberg. That system of justice is markedly different from the one to which Browne is accustomed to working, and only three or four of the 250 cases he’s tried have been in military court. There, the jurors are commissioned officers. They’re allowed to ask questions. They may be less influenced by a media blitz.
“The military is very independent of the media,” Hansen said. “In the state of Washington, all judges have to run for office. They’re concerned about their public image. The military is pretty much removed from that; though this case rises to the highest levels of government. The president, [Secretary of Defense] Leon Panetta, everybody on down the line is concerned about it.”
But a military tribunal could also help Bales’s case, even if Browne’s trial-by-media approach doesn’t work. Any soldier serving in the U.S. Armed Forces today knows the stress the troops are facing, knows about multiple deployments, knows what they’ve had to witness and survive in some of the harshest and most unforgiving places on the planet. If there’s any group of people to convince of “mitigating circumstances”—Bales’s only chance of avoiding the death penalty—it’s a jury of his peers.
“A military jury is going to understand way better than I can what it’s like to be in combat, to kill people, to see your best friends killed,” Hansen said.
What tack the government takes is critical, too.
“The military tends to protect its own, up to a point,” Hansen said. “This case is going to test the limits of that point. A lot of Americans are going to die in retaliation for what this soldier did.”
This is an international incident, with international ramifications. Browne has suggested that he’ll be handling a case that is “more political than legal,” which means that he fully expects the government to go to great lengths to convince the world via this trial that the Afghan killings are the work of a rogue soldier, not the product of a dysfunctional American military, or a presence in Afghanistan that needs to end immediately.
As such, Browne understands that his client’s best defense may be to put the war on trial, to blame his client’s crimes on all those deployments, which he’ll argue weren’t necessary because we’re wasting our time in Afghanistan anyway.
“You know, I’m old enough to remember the My Lai massacre in Vietnam and how that hastened the end of that war,” Browne told CNN. “Maybe a tragic incident such as this will get people to rethink the war in general.”
Clearly, the attorney has already begun to mull his options. What remains to be seen is how much drama he’ll try to infuse in the process, how much of a circus he’ll create around the case against Staff Sgt. Robert Bales. This is a lawyer who once showed up to defend his client in an all white three-piece suit (to which the judge, after ruling on a motion, remarked, “Now, I would like two fudge sundaes and a cream soda, please.”) In order to discredit a witness, Browne once printed out the man’s rap sheet and rolled it from one end of the courtroom to the other. A Washington state Supreme Court justice once told Browne he needed to be spanked.
One of the first cases Satterberg tried against Browne was a murder, back in 1987. In his opening argument, Browne asked that everyone in the courtroom pause for a moment of silence, for the victim.
“We all sat there for a minute and a half without saying anything,” Satterberg said. “I’m not sure how effective it was, because his client had strangled her to death. But he was trying to take the emotion out of the story.”
The verdict: guilty of first-degree murder. Staff Sgt. Bales is surely hoping for a better outcome.