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For alleged Afghan shooter, death penalty unlikely

The defense attorney for Army Staff Sgt. Robert Bales, the soldier charged Friday with 17 counts of murder, has said the military lacks much of the physical evidence necessary to establish a solid case against his client. But prosecutors say there is ample evidence: surveillance video, shell casings and more. NBC's Jim Miklaszewski reports.

FORT LEAVENWORTH, Kan. –   The charges against Staff Sgt. Robert Bales for the premeditated murder of 17 Afghan civilians include the possibility of a death sentence. But, analysts say, the chances of a death sentence actually being imposed are not high.

“We don’t have a particularly bloodthirsty military justice program,” said Eugene Fidell, the co-founder of the National Institute of Military Justice who teaches at Yale Law School.

Staff Sgt. Robert Bales charged with 17 counts of murder in Afghanistan massacre

There are currently six men on death row in the military’s only maximum security prison -- euphemistically called the “Disciplinary Barracks” -- here on Fort Leavenworth. But the last execution was carried out in 1961, when an Army ammunition handler was hanged there for raping an 11-year-old girl in Austria.

It’s been so long, in fact, that the military prison no longer has the equipment needed to execute a prisoner. Instead, the sentence would be carried out at the federal prison in Terre Haute, Ind., where Oklahoma City bomber Timothy McVeigh was executed. The current method is lethal injection; the Leavenworth military prison had an electric chair when that was the method, but it was never used.

Women are going online to show their compassion for the wife of the Army staff sergeant who has been charged with 17 counts of murder. NBC's Miguel Almaguer reports.

None of those currently on death row were convicted of crimes on the battlefield against foreign civilians; all were convicted of murders of U.S. civilians or fellow military personnel.

Death toll in Afghanistan massacre climbs to 17

The next step in the process is what’s called an Article 32 investigation, which will determine if the case should go to trial (which would be a court martial), and if so, what specific charges should be brought (they can be different from the charges originally filed), and if they should carry the possibility of the death penalty.

Analysts say that process will not be quick.

“I would expect that in a complicated case like this, it would be several months before we would see an Article 32 investigation,” said Victor Hansen, a retired Army lawyer who now teaches at New England Law in Boston. “There’s a lot of investigation the government has yet to do.”

Retired Army Colonel and NBC military analyst Jack Jacobs examines the concerns set forth by the attorney for Army Staff Sgt. Robert Bales, the soldier who was charged Friday with 17 counts of murder.

If this becomes a death penalty case, there would have to be 12 jury members, and their guilty verdict would have to be unanimous for it to result in an execution. In other cases, as few as five jurors are required and a two-thirds vote can convict.

“If you have a capital case, we don’t cut corners,” said the Yale Law School’s Fidell.

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And because Bales is an enlisted man, he could request that enlisted personnel make up at least a third of the 12 considering his fate.

Even though Bales is being held at Fort Leavenworth, proceedings may not necessarily be held here. A leading contender for the trial venue is Joint Base Lewis-McChord outside Seattle, where Bales is based and near where his wife and two small children live.

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