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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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To: Twisted Cross.
Interesting, people vote for them 'Macho man' draft dodgers (Generally GOPee'er's' of the 1960's-70's) that promise to 'Go out and kick ass for AmeriKKKa.' Then their barbarians go out and 'do it' and then they come back and tell you about their 'poor' killers PTSD and how the local priest sodomized the 'devil' when he was an alter boy - and want him confined to the barracks for two week-ends, them promoted another stripe and sent 'right back out' (Haditha redux) and 'do it all over - again!'
Yeh I forgot what a war hero Obama was I will say this though when Obama was born in Africa his father was a Left wing radical LOL Like father like Son LOL Oh and by the way IraQ war ended successfuly but this is Obamas war and of course another Failure .............He is consistent Ill give him that NOBAMA 2012
OBubba?
Certainly no 'macho man' like draft dodger "W" huh Pilgrim?
I don't know where I stack up yet on SSgt Bales guilt or innocent or the mitigating circumstances--I;m resrving judgment until I hear all the facts and evidence. However, I certainly hope Mrs. Bales and the Sgt's family avail themselves of more experienced counsel than John Henry Browne -- such as those used in the article who have had miitary court experience plus more. Browne has not had such experience and is a small time Seattle lawyer with what appears to be a problematical reputation even in Seattle. He received a Bar assoc "admonition" in 2005, although he retained his license. According to an internet search, one of his clients received a new trial and lighter sentence after it was determined Browne's representation had been "ineffective." Look it up on the internet, Darrell Cloud Seattle or Martin Pang Seattle. It's reakky, really sad. Also, it seems Browne had or has a very low avvo rating, which I understand is based on client reviews and satisfaction. Guilty, innocent, or suffering from a TBI, PTSD or diminshed capacity -- whatever -- SSgt. Bales and his family still deserves better representation than this, as would any of our military.
The poison of the War-Games that affect human dignity
Courtesy the United States Government
Hello folks, the more information that comes out the more suspect I am of the entire story. The media is in full on demonizing mode of this guy. Afghan villagers where the murders took place and President Karzai are saying that more than one soldier was involved. They are saying it was a dozen to twenty soldiers. I don't know what the real truth is. What I do know is that we were lied to about the Jessica Lynch rescue and the Pat Tillman killing. It probably will be some time before the entire story comes out but I hope it will be the truth.
I read yesterday that the Afghan investigators said that the crime was committed by one person, and the claims of more than one soldier were just rumors. Those spreading the rumors admitted they had not actually seen anything.
I'm sorry, but I really have a problem believing he really did it. Especially when there r no bodies 2 prove that these people r dead. Only so-called blood & so-called testimony of the Afghan people. I'm not saying that they're lying but that w/the Al-queda still out there & it known that the middle east don't particularly like us in their neighborhood, I just think that they could well b coerced & threatened 2 say these things. The whole no body evidence is compelling 2 me. If, & I mean IF the guy really did do it, he had 2 of ben Superman 2 of gone that far & have carried out his mission in that short of x & that long a distance & that many deaths. & if u listen 2 the people they don't talk of 1 person, but "they". That's a far difference from "He" 2 "They". Don't'cha think? I'm just sayin' is all. Food 4 thot.
(((Yawn)))
@melissa AM..you're absolutely right..but we were told that thousands were killed in the 911 event but what happened to those bodies? are you saying that they did not die because "you" did not see the bodies?..or maybe they went on a long & permanent vacation...
I'm just sayin' is all. Food 4 thot.
I want to offer a "what if" or simply a 'scenario' that is just as good as some of the garbage i've seen on here from those of you who are convinced this man is guilty. The trolls here will enjoy attacking me over this, but, that's okay, i'm easily entertained. So, ponder this.
Bales is off duty and stressed out about home and other factors. He's really pissed about his comrades hitting an IED. He'z a trained sniper and accustomed to working with usually only a spotter. He's had a few drinks. He has a lot of triggers. He decides he's going to saddle up and get his gear and go into town and get some evens. He sneaks out. He gets to the first house and find that sure enough Taliban are being quartered in this home. He caps three of them. Then, he moves to the next house he suspects is behind the ambush from the IED. He find a couple more and caps them both. The, he sneaks back wearing Afghan garb and says, "I did it." Then, the Afghans turn him over and he's told women and children and many people are killed. He lawyers up right then and there. He knows the Taliban set him up. When they discovered several of their comrades had been killed, they murdered whom they thought responsible and killed everyone in both families to make it look like the Americans had done it. Knowing they would get a lot of mileage from the propaganda. They filmed some things and picked up tarnished old brass they had thrown down, Filmed that. Laughing at the time about how they'd set this up. Later when investigators arrived, they fired on them. But, that was later denied after they'd have time to plant more of what they thought would be evidence. Bales knew he had been had. He knew that the Taliba were aware that the elders who were not there had been collaborators that Karzai had relocated. Thus they turned them, and certainly had no use for them or their families. Ruthless as they are, they saw a perfect opportunity and had motive.
p.s.. I bring this up as a scenario, because, i've seen it before. I am a decorated combat vet, and in Vietnam, guys would sneak out to get drunk and laid and run into some VC at the local whorehouse and light them up, then, sneak back to the LZ. Then, the next day, the Vietnamese would be throwing a fit because 4 or 5 women were killed and maybe an old man or two. The VC would come in after the soldier left (or maybe him and his buddy), and kill them all after the americans had gone. The whole thing would be a set-up. This has happened many times. I think it's possible that what we may have here is simply a problem with most of you not understanding insurgency warfare. Just sayin
There is no defense for Bales because of the lack of evidence, etc. There is no excuses for him committing these acts. There is no reason they can't prosecute him regardless of where these murders took place, because it really was murder, just like if 16 people were shot and burned to death in America. And as the articles about him read, he turned himself in, admitting that he did it. I personally don't agree with the death penalty for anyone, but I think he should receive a life sentence or something. This news is a joke to me, like how can his attourneys even attempt to defend something everyone knows he did, especially Bales himself because he even ADMITTED to murdering these people.
No evidence? No shell casings? No bodies? No forensics? No witnesses?
So what is SSgt Bales to be charged? Leaving base without permission?
Before charges are preferred the officer responsible for the investigation must ensure there is sufficient evidence for a court-martial.
This could be a tragic non-event if the military cannot find evidence of a crime.
Army investigation, huh?
Like the mafia investigating a mafia hit!'
LOL!
I realize that our troops in combat hold themselves to a higher standard then the Taliban, Al Queda, Viet Cong, etc. and things like this happen. I am not making excuses for him (if he did it....innocent til proven guilty). If the Taliban had done this.....killed civilians (like they have many times....suicide bombs in the market place) the victims would be buried and everything back to normal the next day.....no kind of outrage against the taliban, AlQueda. Just like the civilan massacre during the Tet Offensive in Hue committed by the VC. And I also recall the My Lai incident involving an American Unit. It happens in a War Zone
To: Jeff362275.
Higher standard?
What you smoking in that pipe, dude?
1.4m civilians salughtered in Iraq. (86% of them civilians).
Higher standard, where?
What are you smoking.....our troops did not kill 1.2mil "civilians". Back up your claim with some facts.....a news article stating US troops have killed 1.2mil civilians in Iraq. You want to blame our troops for ALL the casualties!!!!! What a Tool you are. No wonder you sell insurance....you cant sell me on this BS
..and "Evil" reared it's head..this Bales guy is no good..he has a track record of being a bad man..i don't know about you..but i make no excuses for the devils henchmen
He killed these people, we sent him over there. send him back for to them.....
FEDEX overnight express on stand-by Sir!!!!
The US Army AMEDD commanders are too busy trying to save money and taking their own TDY trips everywhere to think about the soldiers and their families. The AMEDD continues to hire more and more levels of administration to crunch numbers and tell doctors to cut costs.. It comes down to money. In the meantime good doctors and nurses are getting out of the Army as soon as they can. Any good docs that are left are simply not treated with an ounce of respect unless they save the Army money. It is all about how commanders want their OERs to look. Army medicine never used to be about the money. Now it is plan and simple.
A decorated solider, sent overseas on a forth tour. After a roadside bomb takes part of his foot and gives him partial brain damage. Apparently loses it a day after another trooper loses his own leg to a roadside bomb. His lawyer is going to attack the military for sending him back, despite his injuries. And the "Commander in Chief" is up for re-election? "Wasn't me......."
Yeh Bush did it LOL
Well if they dont have enough evidence he will and should walk and be restored to his rank in the military if hes guilty he should and will be punished to the fullest and thats as it should be But how about we wait to see all the evidence 1st and if his brain is damaged thats another story also .
When those camelhumping animals stop beheading americans and beating their women for no reason then I might change my mind about this. But right now I'm all for Bales. I hope he pleas amnesia and because of 'no forensics', he beats this thing.
I think we should give him to the Afghan people. It was wrong for what he did and he should face the crime in the country that it happened. see if he could survive a million lashings!
Personally, I don't think anything should happen to him. I think the disrespect we recieve from everyone in that country is something we should not put up with. No, he should not have done what he did, but really haven't we all said, enough is enough.
When they kill our troops because a book was accidentaly got burned. And Our president sayes were sorry. Enough... Just bring all our troops home and let them kill each other. Sure I feel bad for women and children if we leave, but those sad excuses for men deserve anything they get.
I'm so disgusted with so many people's comments that I won't even comment on them. But here is my suggestion--take the Major from Ft. Hood to Afg. and say we are trading one of yours for one of ours. They can have the years of medical care that all of our tax dollars will cover for a guy who shot 13 of ours and wounded 31. Who knows the true circumstances. Those people could have been murdered by their own and set up Sgt. Bates. They kill women for a supposed glance at a man or that the wind blew up their burka and a man saw their leg, why wouldn't they stage this? Do any of you remember 9/11. Did those people get to have any chance, no and that was premeditated. If indeed Sgt. Bates did this deed, he should spend his life in prison, but someone needs to prove it and he needs to get the mental help he needs. I still say trade the Captain for the Sgt., it will be lots less medical care. Four tours of duty when he asked not to be sent is beyond what should be asked of any man or women.
No one wins here, not the Afg. women and children who were killed (maybe by there own) or Sgt. Bates wife and children who will never have the life they deserve in our own U.S.A. I grieve for all of them!
At first I was in support of this soldier, but I am not so sure now that I also hear that as a stock broker prior to entering the service, he swindled an elderly couple out of their life's savings of over a million dollars. Anyone who commits such a crimey on the elderly who saved their whole lives to live with some semblence of security should be looked at with suspicion.
Waste of our tax dollars. Just one more example of why we are considered scum around the world.
Feed this guy to the the locals for stoning! Won't cost us a thing.
We should support the legal process in our puppet governments.
AHhhh! The Fog Of War! EEEEee UUUUHhhh!
They should defend him the same way they are defending that muslim that killed the american troops at Ft Hood. Is America really that afraid of offending the muslims?
Thank you Sgt Bales...Thank you! Too much has been lost by our men and women for nothing! I would find him innocent in a heartbeat, give him an honorable discharge, 100% disability and tell him to rebuild his life before he left. I feel nothing for those who lost their life (men, women or children) that day and in my opinion he didn't kill enough! If his lawyer is good he'll find the appropriate jury to find him not guilty and there are enough of us. Screw politically correct...kill more and maybe they'll bring all our troops home. And to those in the US that want our soldiers dead because of PTSD...go play on the streets of Iraq and Afghanistan, lose your home, your spouse and your job here in the US at the same time and then come home and let us kill you by gunfire (if you make it home!) We want you to go fight but we don't want to take care of you...sounds like Viet Nam all over again! We treated those soldiers like crap as well. Some America and I am a veteran myself! Don't jump on the "then leave it" stupidity either...I love the military and the vets and active duty and thank them each day because my son is an Iraq vet with PTSD and I will go to the end of the earth for him and his fellow soldiers!
VetLady 3/22/12 Ask Your Son IF He could go face to face with a small CHILD then Pull the Trigger & MURDER that CHILD then MURDER 9 CHILDREN.
I didn't think so. Your Son could NOT Murder Children, neither could You or I & we all are Veterans. PTSD does NOT JUSTIFY the MURDER of WOMEN & CHILDREN
SSG Robert Bales is NOT the VICTIM HERE, Those AFGHAN CHILDREN are the VICTIMS. You Know This as Well Do I
SPW "Airborne" Drafted July 1969
he should have looked for more and take them all out
SEMPER FI
DO OR DIE
Everyone keeps saying innocent women and children, how many times have women used themselves as a decoy to bomb people or soldiers? To all those who keep writing this are you aware that the children in these countries carry and use weapons also, probably not because you haven't had the pleasure of being deployed!