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Allauddin Khan / AP file
In this March 11, 2012, file photo, Afghan men stand next to blood stains and charred remains inside a home where witnesses say Afghans were killed by a U.S. soldier in Kandahar province.
Lawyers for Army Staff Sgt. Robert Bales, suspected of killing 16 Afghan civilians, will likely mount a two-pronged defense, military law experts say, attacking the evidence against him while also arguing that his reported combat injuries and mental trauma created diminished mental capacity.
Bales’ civilian attorney, John Henry Browne, has suggested such an approach in his public comments on the case, in which the Army has identified the soldier as the lone suspect in the March 11 attack but not yet charged him.
“There’s no forensic evidence, there’s no medical examiner’s evidence, there’s no evidence about how many alleged victims or where those remains are,” he told NBC Nightly News on Tuesday, adding that he intends to travel to Afghanistan to oversee his own investigation.
But he also stated that his client had “no memory” of the attack and suggested that could be from a concussive head injury. In comments to CBS News on Monday, he indicated he would make a "diminished capacity" argument rather than pursue an insanity defense.
Defense official: Staff Sgt. Robert Bales to face 16 counts in Afghanistan massacre
John Henry Browne, the attorney for U.S. Army Staff Sgt. Robert Bales, speaks about the long and emotional first face-to-face meeting with his client. NBC's John Yang reports.
Some military law experts interviewed by msnbc.com said they expect a legal pincer attack, in which the defense may try to win acquittal by attacking the evidence but have a fallback position aimed at winning a lesser sentence than the death penalty -- which Defense Secretary Leon Panetta has said could be sought in this case.
Military officials have said that after drinking at an Army outpost in southern Afghanistan on March 11, Bales, 38, crept away in the night to two nearby villages, where he shot his victims and set many of them on fire. At least nine of the 16 victims were children, they said.
Gary Solis, former head of the Marine Corps’ Military Law Branch and current adjunct professor of law at Georgetown Law School, said the fact that the crime occurred in a combat zone in a distant country complicates the task for prosecutors, who are expected to charge Bales with premeditated murder and other crimes.
Army Sgt. Robert Bales' lawyer questions evidence in Afghanistan killings
To convict Bales of that charge, prosecutors would have to prove that people died, the means by which they died, that the accused is the person who used those means and had premeditated the offense, Solis said.
That would be no easy feat, given the possibility of numerous crime scene complications, he said.
“The prosecution is under additional burden in that they’re trying a crime that happened … 9,000 miles away,” he said. “They have no bodies, they have no autopsies, they have no forensics, they have no photographs, they have no witnesses. There is no Afghan who is going to come here to testify against this guy, so how do they prove premeditation? It’s going to be a problem for them.”
Daniel Conway, a lawyer and former Marine staff sergeant who has been involved in battlefield investigations in Iraq and Afghanistan of alleged crimes by U.S. soldiers, said prosecuting Bales will be “exceptionally difficult.” Even establishing him as the gunman could be problematic, he said.
“It still remains to be seen whether any of these Afghan local nationals can actually identify Bales as the shooter,” he said. “Now there’s going to be some real linguistic divides here in terms of people’s … ability to communicate what they saw but you may very well have the potential down the road for a defense that he didn’t do it.”
The physical evidence from combat zone crimes is similarly suspect, Conway said.
Spc. Ryan Hallock / DVIDS via AP file
In this Aug. 23, 2011 Defense Video & Imagery Distribution System photo, Staff Sgt. Robert Bales participates in an exercise at the National Training Center at Fort Irwin, Calif.
“In these combat zone cases, you have crime scenes that are contaminated almost instantly … bodies are moved, forensic evidence is either contaminated or cleaned, there (are) typically no photographs that are taken of forensic value so you can’t necessarily go back and do a very thorough wound analysis,” he said, noting that it would be difficult to exhume the bodies if they have already been buried due to Islamic tradition.
“It’s not easy to separate the fact from the fiction in this kind of case,” he added.
If Bales’ case goes to trial, the defense will have an opportunity to react to the government’s case, because the Army presents first. That will enable his lawyers to decide whether to focus on attacking the evidence or arguing that Bales’ reported combat injuries and mental trauma from the battlefield created diminished mental capacity. Or, they may do both, Solis said.
“The government has to go first and it has to prove its case,” he said. “He’s going to be ready to take advantage of any chink in the government’s arguments that he perceives in addition to whatever argument he may have.”
Bales was on his fourth tour in a war zone since signing up for the Army after the 9/11 terrorist attacks in 2001. He had spent three years in Iraq on his previous tours, during which time he lost part of a foot and suffered a traumatic brain injury (TBI) due to a vehicle rollover, media reports say. Two days before he allegedly attacked the Afghan villagers, he saw the aftermath of a bombing in which a fellow soldier had his leg blown off, The Associated Press reported.
While an insanity defense remains possible, experts who spoke to msnbc.com note that winning such a case is extremely difficult in a military trial.
Unlike an insanity defense, where Bales would have to be shown not to have known right from wrong to be acquitted, diminished capacity is simply an argument that the crime was not premeditated and that mitigating factors should lessen his punishment.
“That’s very hard, so … he might have to go with this diminished capacity,” Greg Rinckey, a former attorney with the U.S. Army’s Judge Advocate General Corps who is now managing partner of military law firm Tully Rinckey PLLC, said of an insanity defense. “Most of the cases that I’ve tried, that’s what we’ve went with is because we couldn’t get to … the complete no mental responsibility or the capability to stand trial.”
Eugene R. Fidell, who teaches military justice at Yale Law School, said testimony indicating that Bales’ was afflicted by post-traumatic stress disorder, or PTSD, could be introduced at this juncture, but would be unlikely to result in acquittal.
“Maybe some psychiatrist will say he suffers from PTSD,” he said. “That’s not a defense – probably. There’s no case in which PTSD has given rise to a successful insanity defense in the military.”
Solis said Bales’ lawyers would likely put the brain injury, the wounding of his comrade, the multiple deployments and his foot injury into the “diminished capacity argument box,” with the traumatic brain injury (TBI) possibly being a strong element in support of that claim.
Afghan massacre by US soldier puts focus back on brain testing
“You can get a doctor who will come in there with a chart and … show here’s a normal brain and here’s his brain getting TBI,” he said. “So the jury’s got something concrete … that they can wrap their not guilty finding around,” if that’s how they’re leaning.
Conway said doctors compare traumatic brain injury to a “hardware” problem, whereas PTSD is more like a “software” issue.
Solis, the former head of the Marines law branch, said the horrific nature of the crime could ironically benefit Bales’ defense.
“They’re going to say, ‘Would somebody in control of their facilities, somebody who didn’t have diminished capacity have done something this wacky?’” he said. “The act itself is inherently supportive of a diminished capacity” argument.
As a result, he said, Bales’ case might not even make it to a military courtroom. Perhaps a deal will be struck, or maybe mental health exams -– which could takes months -- will show that Bales is not competent to stand trial.
But Conway, the former Marine who has been involved in high-profile military crime cases, including the 2005 killing by U.S. Marines of 24 unarmed Iraqi men, women and children in Haditha, Iraq, said the defense also runs a risk by telegraphing that it intends to argue diminished capacity.
“It’s a two-edged sword. On the one hand, if they can prevent this from turning into a capital (death penalty) case, that’s a huge victory,” he said. “On the other hand, they’re giving away the playbook and they don’t have any access to the witnesses. So the government is going to be out talking to everybody trying to rebut the diminished capacity defense.”
At the same time, a defense built on PTSD and brain injury is generally a tough sell in a military courtroom, Conway said.
“We have used it many times” to get charges reduced, he said. “I can tell you that it’s hard to get a military jury to be sympathetic to these kinds of defenses because the way they look at it is, ‘I’ve had multiple deployments, I’ve had multiple concussive events … I’ve got family problems, and I didn’t go out and do this.’”
“So you’re going to have to be able to explain to the jury why this case is different from their own experiences in combat and that’s going to be tough to do.”
More content from msnbc.com and NBC News:
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First of all, we are freely posting here because since this our great nation was born it has been sending GI's to fight all over the world so we, meaning everybody, whoever agrees or agrees not... whoever deserves or deserves not, are able mantain these and other privileges.
So America, all of us as a nation are either guilty or innocent of this crime...from our highest ranked official to whoever was born today in this our great blessed soil....
What is wrong with you people? Do you really think a man can leave a controlled compound without anyone noticing. Leave at 3 am walk 8 miles, kill some people, throw their bodies together and burn them? I hate to say it but the villagers have much to say about threats from American soldiers a few days before, it was called retaliation for an IED blowing up their transpo and injuring Americans. I firmly believe this lone gunman nutjob that the US is trying to get everyone to buy is a smoke screen, in fact I know it is. We now have kill squads out there because of Afgans working with the Taliban, we have kill squads killing at night, look it up.
This Sgt Bales is a patsy plain and simple, he was drunk and passed out, after drinking with other troops. You folks need to get the facts. Try reading this.
Know I'm not for anything like what our govt. is portraying of this man, I'm against it.
But I have seen good men railroaded by the military and everything about this points in that direction, from the villagers on up and down. Personally I don't think this guy did it. I believe we now have hit squads to win the minds of the Afgan people, it's been proven. Obama has a secret war going on you people can't even comprehend.
This administration is a sad time for America. Obama a man of Peace, I don't think so.
How do we know he did anything? Things have been falling apart there ever since we destroyed their prison communications system, Perhaps the Afgans using rifles supplied by the US for training / protection duties did this, Perhaps the family(s) involved were actually insurgents against Afganstan and the Afigan government had this done and are blaming it on US Soldiers. He could just be the scapegoat.
Get of of Afganstan descretely tell all americans to get the hell out with a 72 hour deadline to do so. Then start dropping Bombs till there is nothing left of Afganstan or Iraq
Great idea Mary, been saying what you think for 10 years, turn the place into a parking lot.
It amazes me that MSN is censoring what links I put in here to show this man is a patsy.
Google SGT Bales and look it up, he is nothing more than a patsy for this Govt. We need to get out from this hell hole. Obama wants a private war in Afghan. and he's got it. The snake, this whole thing stinks from the head, this guy didn't do anything except get drunk.
3/22/12 Once Again, How does anyone go face to face with a CHILD then PULL THE TRIGGER & MURDER THAT CHILD not only ONCE BUT 9 TIMES?
THERE IS NO HONOR IN THE KILLING OF WOMEN & CHILDREN
PTSD, TBI, MULTIPLE COMBAT TOURS,DEATH OF A FRIEND,DEPRESSION
NONE repeat NONE JUSTIFY THE MURDER OF CHILDREN.
Court Martial then DEATH BY FIRING SQUAD
But to be Honest here, I ll be Dead & Buried before this Murdering @!$%# answers for these Murders 20 years from now SSG Bales will still be Alive at Leavenworth Prison.
SPW "Airborne"
I don't care that he had been deployed multiple times, saw his buddys injured by and IED or any other excuse you want to give for this POS doing what he has admitted too. He needs to be tried, convicted and executed ASAP. If he is found not guilty i hoped a family member one one of the victims can make it here and take care of the problem by any means necesary. Or had him over to the Aghan gov't and let them deal with it
I remember the first article on this, you know, the one that reported that when he returned to the base he admitted to doing the killings.
This is going to be convoluted as it can get. I do believe the conditions mentioned, PTSD and TBI, could possibly be factors but then again you have to look at it from the view point that he was returned to duty after the TBI. This doesn't really surprise me either. It wouldn't be the first time they returned someone to duty before they were ready or fully recovered.
I am reluctant to go by what is printed in these stories, I have seen too much inaccuracy in stories by reporters far too often. At the very least, he is going to be out of the Military, the condition of the discharge is the only real question. If they prove Diminished capacity in order to stay in they have to prove it won't happen again, there is no certainty he won't be deployed again. If the trial ends in a Conviction then he will be dishonorably discharged and spend the rest of his life in jail. Either way, his military career is over and there is no certainty it will provide any rest in the area where the incident took place.
His lawyers are fighting for his life because his lawyers are the lowest life form
on this planet. They should have already executed him for what he did.
What have we as a nation come to. We allow our leaders to send our military into harms way over and over again without a care in the world about what it has done to them. Yet, when one (supposedly, not yet proven) does something wrong we scream for their vilification and as in this case "Execution" before the evidence is checked, witness statements are verified and a "FAIR" trial (not public opinion) has found them guilty. This case, from reports is based on hearsay, and apparently on our Governments desire to continue appeasing foreign interests. This young man may or may not have done this. He is however proven to have had severe problems from his previous tour experiences and shouldn't have been back this time. Why then are those who seem to "know the whole truth" so quick to judge and execute? This case is weeks old and by far the "Actual" facts are mired down in the fact that actual evidence doesn't really seem to exist, at least in the light of day! If I were to get incensed about how any of the tragic cases that are still open it would be the senseless killing of Americans by a serving Officer at Ft Hood, TX who in front of hundreds of witnesses gunned down many but has still to be brought to justice. No it seems that our Leader feels that this case is of more importance and a swift and partial end to it would be the only way to appease our "Friends". Let's be sure before we offend our own judicial and moral values, that we prove "Beyond a reasonable doubt" that 1: A crime was committed, 2: that the individual did in fact commit it 3: That a fair Trial and verdict is given, but not because we have to appease a foreign government who just happens to not really like us as a friend or ally.
This whole story does not add up. The FOB that Sgt Bales "supposedly" walked off by himself was not a location that you could have done such a thing and then to just start firing into the night as many rounds to "murder" 17 people without anybody/Afghan trying to retaliate and then starting fires without anybody/Afghan trying to retaliate...all this while your drunk...because you consume a few ounces of alcohol after not having any in your system and you get you very buzzed = THIS @!$%# DOES NOT COMPUTE!!!
@seem too much..you raise the argument that sometimes "soldiers don't know who is who.." to defend Bale's criminal murder. Has been officially released: 13 of the 17 assesinated by Bale were Children.
They don't die in a cross fire, or platoon action, seem to be what your mind is not getting the facts: They were murdered when they were in their houses, sleeping. The horrible details released said that they were shot on the head, chest and private parts...13 of 17, just poor children, victims of a criminal man even before wera the US uniform.
I still CAN"T believe, how many idiots-morons have the sick souls to pretend justified what this monster did to those innocent people. This is a man with proven record of alcohol abuse, violence against others, financial crimes (all this BEFORE his enlistment) this a man with criminal mind, used to violence.
Hi uniform was stained with blood when he returned to base, there's even a video showing him leaving and returning to base, the balistic evidence left behind link his American waepon, just HEAR AN READ the last evidences against this monster.
Of course now the murderer said that he "don't remember", but was clear for him to carry the gas to burn the bodies of his victims..any normal person wih normal inteligence is able to see that the man is fearing for his life and lying to cover his crime.
ONLY morons can defend a monster like him , because inside of all you, the same criminal instincts exist.No normal, decent human being can defend, excuse or justified what he did. He's a cold blood murderer and must paid the maximun for what he did, no only to those poor people, but the damage to the whole United States, to his fellow soldiers and his own family.
@Mary38861---you ask for, you get it: your comment is a reflex of all the trash that fill your pathetic existence.
Your words contain the DNA of vile nazi murderers maybe you are related to them, and your spelling denote a decrepit poor education.You write about murder millions of people, to commit genocide(I know you don't understand such concept) agaisnt a people of who you don't know anything.I'm 100% sure that you will uncapable of finding this country in a world map.
The country name is NOT "Afganstan", such country don'st exist, what is real is the country called Afghanistan, a country invaded first by Russians and now by the US military, to steal their natural resources (something about that you don't have a clue either)
Afghani people don't create the 9/11 attack, they never had been involved in any terrorist attack in the USA, they don't create the Taliban, they were created by your own government. The US went to invade this country, and the war there is only their nationalist reaction to a foreign invasion.
Of course people like you, think that they deserve to die, because they don't eat in Mcdonalds like you, or they are not overweighted like you, you think that you're "superior" to them because you can eat junk food the whole day, and they don't..
You and morons like you, will no feel the same "about drop bombs" in other nations, if your country or State will be invaded by a foreign power (which is possible) and KILL your children, boyfriend (I doubt you're married or have children, maybe couple of abortions) and all the people around you..maybe you will feel little bit about how the Afghani people feel, INVADED by US, they never call us, we created the mess that those wars are no them.
Idiots like you "Mary" never will get what is happening in the world, because your little world is a filthy bubble of cheap tabacco, trash TV, and junk food.Pathetic body empty of soul.
ALL BALES DEFENDERS: all your arguments are stupid, arrogant, all of you are a pathetic bag of potatoes, there's no one, no a sinle one argument that is constructed with inteligence. You challenge reason, because you don't know that is that.
All the evidence that is coming, and more will come, will prove, that your "captain America" is only a pathological criminal, a murderer coward, who feel very "macho" spraying bullets in sleeping children.
Is of public knowledge now, this murderer has a trail of alcohol abuse, violence and criminal actions before enlisted in the army, his civilian lawyer also is a liar contradicting himself on initial reports about Bale.
YOU will Remember me morons, the Celtman.
In the future, post your comments FIRST, THEN get your DRUNK on
So, should the US help Israel with it's coming airstrike against Iran ?