Walker is charged with four counts; a conviction on any could result in a life sentence. The charges are: Conspiracy to kill Americans in Afghanistan, providing material support and resources to terrorists, providing services to the Taliban and engaging in prohibited interactions with members of the Taliban. The proceedings are taking place under extraordinarily tight security; a hearing is scheduled for February 6th to determine whether Walker will continue to be held in custody. Frank Lindh and Marilyn Walker saw their son for the first time in two years Thursday morning, moments before the hearing began.
After the hearing, Walker's parents joined one of his attorneys outside the courthouse for a brief but emotional press conference. "John is innocent," Lindh told reporters after the hearing. "John loves America, and he didn't do anything against America." There was time for legal wrangling as well; attorney James Brosnahan told the press that Walker asked repeatedly for a lawyer, but his requests were ignored. Brosnahan also insists his 20-year-old client did not receive medical attention until after he left U.S. Camp Rhino in Afghanistan a charge prosecutors have chosen to disregard.
Should Walker have been granted a lawyer? Or was he in a state of legal limbo that permitted him no rights? "This is a case that highlights the weird conundrum of military versus criminal," says Paul Robinson, a law professor at the Northwestern University School of Law, who concentrates on issues of criminal defense. "We can treat this as a criminal case, in which case we apply the normal rules of law. Or we can use the military standard, in which none of the normal rules apply."
So in this sort of wobbly netherworld, how will Walker's lawyers construct his defense? Robinson has a few, purely speculative, ideas. "Depending on how clever the defense team is, you could imagine a case in which they'd depict Walker having been drawn into an extreme Muslim sect which some Americans are predisposed to view as cult-like." That kind of defense would need to be extremely careful, of course, not to paint the Muslim-cult connection with too broad a brush; mainstream Muslim life must not be implicated in any way.
The brainwashing defense could be a good starting point, says Robinson. "Combine that with the fact that Walker did not go to abroad to kill Americans, that this state of war did not exist when Walker arrived or joined the Taliban" and you could have a case.
Unfortunately for Walker, the law doesn't formally recognize the brainwashing defense, even though, according to Robinson, there has generally been a lot of public support for it. "So defense counsel generally have to find other avenues to pursue, other verdict options," he says, "which can include finding the defendant was in a state of extreme emotional distress, or an appeal for a jury to reach some kind of compromise verdict despite the facts presented."
The good news for Walker: cases like this are so rare and so unique that there are no sentencing guidelines. That means even if Walker is convicted, a judge has broad discretion when it comes to issuing his punishment discretion the defense team hopes will work in its favor.