E-mail updates
Follow on Twitter
Subscribe to RSS
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:
Leave a Comment:
The crime is not defensible.
All wars are crimes!!! Sgt. Bales turned himself in, that does suggest he knew what he did was wrong. It is a tough call given other circumstances, yet there is that pesky problem. He turned himself in. How can the court rule diminished capacity given that he obviously knew he had to turn himself in? The fact is that no matter what state of mind the Sgt. was in, he commited a horrific crime. He should pay for that crime. He should at the very least spend the rest of his life in prison with 0% chance of ever getting out. People who think he deserves less are morally depraved. Inserting the word patriot in any context is an insult to men and women of our nation who dedicate their lives to being REAL patriots, past and present. In one sentence the whole thing is fine example of the media, politicians, and the military to condone this disgusting event. It was shameful enough for Americans that Sgt. Bales did this. Why do people insist apon bringing more disgrace to good Americans?
What a joke this case is. Everyone seen some Afghan policing up brass that was old and tarnished which appeared to be either 7.62 or 7.63, and Afghans at the scene screwing up the entire crime scene. Then, conflicting statements from witnesses who are 'unknown.' (hearsay anyone?) This case is a joke. And, when he said , "I did it" ? Did what ? Snuck out? Got laid? What ? Afghans seen him leave. Afghans seen him return. Afghans said this; said that. What puts him at the scene ?? His admission of something he says he can't remember ? Nothing, that's what. (there hasta be physical evidence) One witness says she heard gunfire an hour before he snuck out and none after. Her head probably stuck on a consartina pole by now. If this goes to trial without a plea bargain, the prosecution is screwed blue. No forensics, no ballistics, no nothing. He said; she said.
Bottom Line, he was shuffled out of Afghanistan to prevent any type of worthy prosecution as dispositions won't be allowed from witnesses and they'd have to be flown here to testify. It is acquittal by design.
This is really sad. All is fair in love and war. Typical, America turns its back on true Americans. Why are we in Afghanistan anyway? This is exactly why no one should join the US military. All the people this man has defended have completely @!$%# on him, and they do not deserve being defended. The difference between an Afghan Civilian and a militant is nearly impossible to differentiate. We should not be entering countries were children and women cannot be killed. What is the point? It is war. If it is a police action, then we should send police and work with local police forces. Oh, I forgot. We have done that in Iraq, and it is does not work because they do not want us there either.
It is pretty obvious Sgt Bales had a mental breakdown and should be sentenced to a mental health facility.
I think for SOD Panetta to say he (Sgt. Bales) is going to be executed Before he has even been given a trial is a tragedy in and of itself. The Sec. should be fired and given sensitivity training for his "Political Correctness" statement. (Also for his distasteful display of mistrust in his own troops by making them disarm when he was in their presence). With friends and leaders like him, who needs enemies?
Soldiers should not be used in police actions.
Panetta worked as an Army prosecuting attorney as a JAG officer. Check his background. He thinks like a prosecutor. Little wonder
Bottom line: Bales committed a truly horrible atrocity. It was the act of someone "out of his mind". He hadn't "cracked" in his previous deployments.
Something, whatever it was, pushed him over the edge. Who can really say what caused this?
The Afghanis are going to want "revenge" on him. It's their culture, whether we like it or not. On the other hand, I do not see such outrage from them when Americans and other NATO soldiers are butchered by the Taliban.
We really cannot allow the Afghanis to dictate to us regarding "justice" in this case. There are truly "extenuating circumstances".
It's a terrible thing and nothing can make it right. Nobody can or should "win" on this one.
As a 2 tour Vietnam vet and now a lawyer. I have seen some of my brothers go into a complete state of blackout! This man did 4 tours! I volunteered for my second tour, however, that option is no-longer available.
I'm not saying what happened was right. However, the mind can only take so much before it can snap! I believe he was in a complete blackout as I have seen before.
Most people will never understand the stress of war unless you have been in combat...
I call Bull @!$%# on your statement.
SSG Robert Bales went face to face with CHILDREN then pulled the Trigger on 9 CHILDREN
PTSD, T B I. Multiple combat tours, depression, family stresses
NONE repeat NONE of which Justify the MURDER OF CHILDREN
Premeditated 1st degree MURDER
I hope this Son of a Bitch Burns in Hell ! SPW Drafted July 1969
The lawyer needs to ask the questions for good reasons the evidence is very odd.
I am glad he has an army of liars to fight for his life. These poor kids he murdered didn't have that luxury. Life is not fair is it. I guess the more nuclear bombs your country have the more you can make your own justice. This guy or this thing represent the face of evil.
I suggest that this case not be tried in the media and that a gag order be placed on all lawyers involved in the case.
"It's not easy to separate the fact from the fiction in this kind of case," he added.?// The trial will be based on fiction. How can he get a fair trial, he can't . He has already been tried by the media. Life or death ?
Sgt Bales will be tried and sentenced to death but there are 3 winners ahead of him.
1. Ronald Gray- sentenced to death for multiple rapes and murders in 1988.
2. Hasan K. Akbar killing 2 and wounding 16 in a fragging incident in Kuwait in 2003.
3. Nidal Hasan- the Fort Hood shooter.
The PC drumbeat for Sgt Bale's execution will probably result in the other 3 winners finally being executed. I've seen this happen in Florida with Danny Rolling the Gainsville Ripper. In order to get rid of him Florida executed the most condemned inmates in decades that year, 4.
Pugface you do realize tha the KILLED women and children we are suppposed to protect. These people, women and children did not attack us on 9/11. They had nothing to do with this war, yet this pig executed them. And he's a pig with some problems back at home, too. No excuse for what he did. No matter how you fell a^*hole, he was wrong in doing this, and should burn in hell.Quit being a stupid GOPher....
First thing i'd do is fire that lawyer. That lawyer looks like a guy with a studio apartment in Haight/Ashbury with a $100. suit and a $400. bong. You never tell the prosecution or the media what you are thinking. You only do what you must do under right of discovery. I'd be so busy filing motions of discovery with the Army, I wouldn't have time for the media's nonsense. The army has no case ! Not that I see anyways. I'd file a motion to throw out the whole case for lack of evidence at the preliminary. Its ludicrous.
And that will really help the nation's cause in Afghanistan. Showing them that what we preach is not what we do..We are hypocrites as the Taliban can then prove easily. See..I told you the Americans are liars and pigs. They massacre babies and let the killer off free and you Listen to them?
What our problem is we enlist morons as soldiers and have them urinate on dead folks , take their picture doing it and send it around the world.
The only dumber folks that military are Alabama fans who videotape themselves sexually assaulting a person in a Krystal restaurant and putting it on utube and wondering why they got arrested.
I'm thinking that the US Army has nothing but GED grads, derelicts, criminals and brain damaged folks.
Ghee, American trash on display, no honor, pride, just worse that ghetto and trailer trash.
Be careful making such bold statements like "the US Army has nothing but...". That's like saying all Alabama fans are as stupid as the ones you referred to. The soldiers that I know very well are anything but "brain damaged folks". Yup, there are those in the military who reflect their own inhumanity and stupidity; but all of them? Really? Oh, and by the way, all those "derelicts" you refer to are dying so you have the freedom to say what you want and not be worried about your family being killed.
WHT3-Wow, you lump a whole lot of Americans together in one stupid statement. The US military is as diverse as the US is and full of all kinds of people. By the way, when my two sons joined three years ago, GEDs were not allowed, and they both had extensive background checks.
No forensics, no witnesses (so far) = no conviction.
Zeich Heil..the Jews are rats
@wht3..I bet anything that you will not have the guts to face man to man a Jewish man, no the guts to go outside wearing your "brown shirt" wearing the swastica, that by the way was a Hindu symbol "stole" by the nazis, you know why? because their deformed brains were uncapable of create an original symbol.They need to stole it from the Hindud.
For the same reason 6 millions Jews were assesinated in order to STEAL their business, factories, small shops, to steal rings and gold from dead bodies, paintings, watches, jewelry, bank accounts, houses, properties, plus the other millions asessinated by the REAL RATS of History, the nazis.
Your idols need to assesinate civilian populations, destroy entire cities and towns in order to STEAL the work of others, nazis were the most vulgar and cruel putrefact criminals in uniform, even the Huns were better that your idols.So YOU and them are the REAL RATS.
Now you are spelling your sickening smell from the "cloacas" when all of you real rats bath in excrement everyday, there's is where you hide, because you don't have the guts to worship your nauseating idols in public, you can hide well under your "wht"=worst human trash tag.
The Jews, being less that 1% of world population had been awarde 25% of Nobel Prizes, for what reason you think that the great rat hitler forced JEWS scientist to work for his high tech projects? because RATS like him, you and all nazis don't have the brain to do it, HE NEED JEWS.
Just to to any world university, I know you never will qualify for one, and tell the the Science Department that show you all the Jewish contributions to Culture, Medecine, Science, Physics, Mathematics etc etc...see if thet agree with you or with me.
SURELY your mother was a TV who feed your poor developed brain only with trash, and your father was a decrepit archade shooting game, who trained you to express you hate for yourself. So you fill the profile of been a morally and intelectual orphan, with no cure
Because that the root of your RATANIC hate for the Jews, you feel inferior, like the rat hitler, you hate us because we are the mirror where you see how stupid, ignorant, low, self degraded you're, your god hitler hate us because We the Jews "gave the world the Concience", he hated himself more that he hated us, the most simple Jewish villager show him how INFERIOR he was, we ramind him constantly "DO NOT COMMIT MURDER" "DO NOT STEAL" the most human civilized concepts that his sick deformed mind was uncapable of handle, he was too putrefact to handle his own filth.
Worst Trash like you are even inferior, because you act and think like a rat, infested of self hate projected on others, but a real RAT act in its own nature, you wanted to imitate it, because your hate don't let you find your little remains of humanity,so you are not even a complete rat.
Either you are a complete nazi, your love for hitler is just a platonic vulgar affair product of cheap propaganda, becaue you will never follow the last example of your god, which was kill himself, so you're a fake pseudo little sorry nazi dreamer.
Stop using Jewish inventions and you will go back to where you belong, to the sewer.
this man should have the same fate as that animal in France - they both committed the same crime?
We should not be entering countries were children and women cannot be killed. What is the point? It is war.
What kind of stupid statement is this, 32123? And what the hell did these sleeping women and children do to deserve this massacre, stupid?
What ever happened to the FT Hood shooter????????
It seems like everyone forgot about that guy who shot up American Citizens on American soil, in the name of ISLAM!!!
Where is he?????????
OH... I forgot we are now an apology nation!!!!!!!!!!!
The Ft Hood shooter was an American soldier dummy. An American citizen. You been listening to Hannity too much.
From what I understand, he is awaiting trial in June.
WAR SUCKS !! This is what happens in ALL wars it's not right but it happens now and will always happen....STOP these stupid wars !! Send our troops home and keep them here , use them to rebuild our infrastructure ,rebuild our schools , homes for the sick etc ...Keep up with these damn wars and it will be the end of "civilized" people !! lol
Yeah no kidding just a lynch mob and some supporters. He woke up in a haze alone this should tell you something the crime took more than one person how did he get off base, don't jump to conclusions. We need the facts first then we convict so far it is just hearsay. Thank our constitution for a jury of our peers. Soon we may even lose this right to have a jury of our peers since we support hang him first mentallity before we convict. People are to anxious to jump to conclusions these are the same people we live with. YOU know who you are ! Patience and tolerance ehh ! civility uhuh...
How about this defense?
He was a coward so he decided to kill unarmed babies in their beds?
Or the Nazi defense, if he can say he was following orders?
Or the Republican defense...there are no innocents in war....except Jews and they are always innocent..of anything.
WHT3, we get the point: you don't like Jews or the US military. Your comments are inflammatory and bigoted. You add no intelligence to the conversation.
I am compassionate toward SSgt Bales due to his repeated deployments, injuries, willingness to serve his country, and all of the horrors that he surely saw while in harm's way in Iraq and Afghanistan, but none of that can excuse his executions of 16 civilians. No doubt the US military should have seen that there was a problem with SSgt Bales long before he snapped and committed this atrocity, but time and again, the very resources that should be protecting, treating, and advocating for our brave men and women in uniform seem to fail them when they are at their most vulnerable. It's a tragedy that 16 civilians had to pay the price for that failure, just as it is equally tragic that SSgt Bales is paying such a high price for that failure.
I hope that there can be a fair trial for him here in the USA, but I worry that some shrewd legal maneuvering could deal a devastating blow to our military forces who are still in Afghanistan. How will the Afghans respond if some technicality allows SSgt Bales to escape adequate punishment? How many people will be killed if we prove to the Afghans that we don't care that 16 men, women, and children were slaughtered by letting SSgt Bales find an excuse for his crime? I realize that he never would have stood a chance at trial in Afghanistan, but I wonder if that would have been a better option for all of his brothers- and sisters-in-arms who could end up paying the price for his rampage?
We need to be done with these wars. Too many have already sacrificed far too much. Bring them home!
They should hang the officers who sent him back. He had already served 3 tours in Iraq... suffered a serious head trauma, and was probly suffereing from PTSD. And he got sent to Afghanistan "overnight". Talk about stress!! Im no doctor, but he should never been sent back into combat.
3/22/12 Once Again THERE IS NO HONOR IN THE KILLING OF WOMEN & CHILDREN.
This was premeditated 1st Degree MURDER.
How do You go face to face with a CHILD then Pull the Trigger not once but 9 times ?
That is MURDER plain & Simple Burn in Hell You Son of a Bitch.
Robert Bales is NOT the Victim here, Those Children are the Victims.
It's my understanding that there is a video tape with Him stating " I Did It"
There is your evidence. Court Martial then Death by Firing Squad
SPW "Airborne"
Are you suggesting he not be tried first...after you say you are x-military?