TACOMA, Wash. — Staff Sgt. Robert Bales could go to trial this year for allegedly murdering 16 Afghan civilians, if Army prosecutors get their way. Or his court martial could be delayed until 2014 or later, if defense attorneys are successful.
The big questions Thursday boiled down to timing as the Joint Base Lewis-McChord soldier made his first court appearance since the Army announced last month that he’d face the death penalty on suspicion of massacring noncombatants in southern Afghanistan.
Prosecutors want to move quickly against Bales, contending that delays in the case could hinder the government’s ability to bring Afghan witnesses to U.S. soil. They’d like to go to trial by this summer.
The four-tour combat veteran has a constitutional right to face his accusers in court, but a withdrawal of U.S. forces from Afghanistan could complicate the already lengthy process of flying witnesses out of the war-torn country.
Meanwhile, Bales’ attorneys want to slow down the case. They contend they need 1½ years to prepare an adequate defense.
“There’s just a lot of work that has to be done here,” lead defense attorney John Henry Browne told Army judge Col. Jeffery Nance during Bales’ arraignment Thursday.
Bales, a 39-year-old father of two who spent his entire Army career with a Lewis-McChord Stryker brigade, did not speak during the 90-minute hearing except to confirm that he understood his rights. He deferred his plea.
He wore his dress uniform and appeared somewhat more relaxed than he did during a two-week hearing in November in which the Army presented gory evidence and graphic testimony connecting him to the March 11 killings.
On Thursday, he hugged his wife, Kari, when she arrived in court. He kissed her and asked about their recently ill son.
The boy is “doing better,” she said.
“Thanks for being here,” he told her.
Prosecutors insisted that they want to ensure Bales receives a fair trial, yet they’re also mindful of the risks in Afghanistan. Two potential witnesses have been killed since the night of the March massacre in Kandahar province, and two more were wounded, prosecutor Maj. Rob Stelle said.
Browne told reporters that NATO forces killed the two potential witnesses because they were considered enemy insurgents.
Defense attorneys argue that military capital cases are long by nature. A motion they submitted to Nance noted that such cases tend to take about 600 days to go to trial after an incident.
Two Army capital cases illustrate that trend. In one, Sgt. John Russell is awaiting trial at Lewis-McChord on charges that he killed five U.S. service members outside a mental health clinic at a military base in Baghdad in May 2009.
In another, Maj. Nidal Malik Hasan is awaiting trial for his alleged murder of 13 people at Fort Hood, Texas, in November 2009.
By contrast, the Army’s “kill team” investigation concluded about 18 months after officers learned of Lewis-McChord soldiers murdering three Afghan civilians in the spring of 2009. The Army did not seek the death penalty against any of the five soldiers it accused of homicide in that investigation.
“Death is different,” Browne said.
Prosecutors also want Bales to submit to a sanity board immediately. They argued that he cannot present a defense on mental health grounds unless he takes that examination. It is required under military law, and Nance said he would order one.
The timing and conditions on that examination are up for debate.
Defense attorney Emma Scanlan stressed that prosecutors should not receive any results from a sanity board until after Bales’ team indicates whether it will use a mental health defense.
Bales’ attorneys in April and May refused to allow him to participate in a sanity board. They wanted that examination to be recorded and to take place with a certified neuropsychologist. The Army declined those concessions.
Early this month, the Army rejected a motion from Browne to allow the defense team to hire an expert neuropsychologist.
The Army argues its doctors are neutral.
“Nobody knows how the sanity board is going to come out,” prosecutor Maj. John Riesenberg said. “It could be favorable to the government. It could be favorable to the defense.”
“These doctors are not independent doctors,” he said. “These doctors work for the Army, and the Army is trying to kill my client.”
Browne and Scanlan would not say Thursday whether they intend to pursue a mental health defense for Bales.
But after the hearing, Browne hinted that they intend to follow that course. He told reporters that Bales had been diagnosed with post-traumatic stress disorder and head injuries before his 2011 deployment with the 3rd Brigade, 2nd Infantry Division.
Browne said he has records from Madigan Army Medical Center to prove that Bales sought care for those ailments.
The defense attorney Thursday used more emphatic language than he and his partner have previously used in court filings. In those documents, the attorneys said Bales “may have” suffered from PTSD and head injuries.
Kari Bales gave an interview to NBC last year in which she said her husband did not show any obvious signs of PTSD.