WASHINGTON — Should lawyers invoke the tale of a broken soldier to defend the staff sergeant suspected of massacring 16 Afghan civilians, they are unlikely to find a receptive audience in a military courtroom.
Combat stress has rarely been successful in the military as a defense against the most serious crimes. And in murder cases, no servicemember has ever been found not guilty by reason of insanity in the military justice system, experts say.
In the last few years, post-traumatic stress disorder has become more common as a defense in military courts, but the argument is most effective in reducing penalties during the sentencing phase of the trial, not in avoiding guilt.
PTSD “doesn’t usually get you that far,” said Phil Cave, a retired Navy lawyer who has been practicing in the military system for more than 30 years.
Army Staff Sgt. Robert Bales has yet to be charged in the March 11 incident, in which 16 Afghans, including nine children, were shot in their homes in Kandahar. Military investigators are still gathering evidence in the case, officials have said.
Details are scarce about any mental health troubles that might have plagued Bales after four combat deployments in Iraq and Afghanistan and at least one reported traumatic brain injury. The Seattle Times reported that there is no indication that Bales or his family sought mental-health counseling for the soldier at Joint Base Lewis-McChord or its Madigan Army Medical Center. He was deemed fit for deployment, the newspaper said, and was not under consideration for a retirement due to PTSD or other mental-health conditions.
But Bales’ civilian defense attorney, John Henry Browne, appears to have begun preparing the ground for a potential “diminished capacity” defense in media interviews, asserting that Bales cannot remember much about the Afghan shootings he is alleged to have committed after walking off his combat outpost.
Diminished capacity means that a defendant’s mental state was so impaired that, even if he was sane at the time of the crime, he couldn’t comprehend what he was doing.
In Bales’ case, should he be charged with crimes that could lead to the death penalty, PTSD would “be something to help take the death penalty off the table,” Cave said.
Nearly a third of troops have returned from the wars in Afghanistan and Iraq with some level of PTSD, according to a RAND study. The issue of the “PTSD defense” will challenge the military justice system for years.
“The longer we are in this conflict that’s shouldered by the service of a few people repeatedly being sent back into harm’s way, the more you’re going to see not only this defense presented,” but also see it be effective, said defense attorney James Culp.
Lawyers have been successful in using PTSD as a defense for lesser crimes, such as drug use and spousal abuse, but the more serious the crime, the less receptive the courts become.
A successful showing that a defendant suffered from PTSD could reduce a verdict from premeditated murder to second-degree murder, according to Culp, a former military lawyer who has represented servicemembers in some of the most high-profile murder cases from the Iraq War.
“It could get the [military jury] to conclude that diminished capacity took away the ability to premeditate in the way that you or I would premeditate,” Culp said. “Under those circumstances they might be willing to reduce what they call the crime.”
But in order for defense lawyers to prevail with such an argument, they would have to present convincing evidence that a defendant was “so mentally challenged at the time he didn’t have the ability to appreciate wrongfulness,” Cave said.
Bales reportedly suffered a brain injury during one of his deployments to Iraq, which could also come into play at any trial.
He was cleared to deploy again by Madigan Army Medical Center, which has been investigated multiple times in recent years for its care of soldiers. Most recently, military doctors were accused of overturning PTSD diagnoses of at least 250 soldiers in order to reduce the cost of their long-term medical care.
“Are they underreporting and under-diagnosing, and in the process, are some deploying who shouldn’t be deploying and now you have 16 civilians dead?” Cave wondered. “There’s a story in there somewhere.”
If Bales is charged, a lengthy evaluation will examine his state of mind, military legal experts said.
Prominent PTSD expert Jonathan Shay is unconvinced that PTSD eliminates criminal responsibility. For years, he has turned down requests to testify as an expert witness in the guilt phase of a trial.
But Shay, who was a psychiatrist at the Department of Veterans Affairs for decades, said he has become more open to the idea that a PTSD-driven psychotic episode could reduce someone’s culpability for a crime.
Nevertheless, Shay said, the details about the Kandahar killings that have emerged, indicating that the shooter methodically went house to house and then returned to his base to surrender, do not add up to evidence of a psychotic break.
“This slaughter in Kandahar, to the extent that the facts have emerged, just does not compute at all in that regard,” Shay said.
In other recent wartime murder cases, the claim of PTSD has had the most bearing in the sentencing phase of the trial, as a mitigating factor.
Last year, Pfc. David Lawrence pleaded guilty to the premeditated murder of a Taliban commander he was guarding in Afghanistan. Evidence showed that Lawrence suffered from hallucinations after his chaplain was killed by a roadside bomb, and Lawrence was subsequently diagnosed with schizophrenia.
Culp, who represented Lawrence, said the soldier pleaded guilty despite his mental health diagnosis, because “if we played that card [at trial] and lost, he would have gotten a mandatory minimum of life.”
Lawrence was sentenced to 12.5 years in prison, but a general reduced it to 10 years because of mental illness.
In another case that has yet to go to court-martial, Culp said he will argue that Sgt. John Russell, who killed five fellow servicemembers in Iraq at a combat stress clinic near Baghdad in 2009, is insane.
Russell was found to suffer from major depressive disorder with psychotic features and severe PTSD. The military has said he is still criminally responsible for his behavior and plans to court-martial him for the murders, but the investigating officer recommended that he not face the death penalty.
“We believe he may be the first ‘not guilty by reason of insanity’ verdict ever,” Culp said.
The defense attorney drew parallels between Russell and Bales, saying that both had spent three years in a war zone.
“I don’t think that’s a coincidence,” he said. “In my mind, I know it’s not.”
Should an argument of diminished capacity be successful in Bales’ case, it would be significant for sentencing. Premeditated murder in the military justice system carries a mandatory minimum of life in prison without parole. Should Bales be convicted of a lesser murder charge, Culp said, there would be leeway in sentencing that could allow Bales to be eligible for parole in 10 years.