TACOMA — The scope on the M-4 rifle that Sgt. 1st Class Michael Barbera is accused of using to fatally shoot two Iraqi boys might play a key defense role in the Army's murder case against him, military justice experts say.
“A reasonable person might say the boys posed no threat, yet a person looking through a scope might have determined from what he saw that there was a serious threat,” said retired Col. Morris D. “Moe” Davis, a Judge Advocate General's Corps officer for more than 25 years who retired after serving as head of the Air Force judiciary. “In the calm of the courtroom, it's easy to second guess with the coulda, shoulda, woulda.”
Barbera, 31, is charged with two counts of premeditated murder and two lesser counts of prejudicial conduct in connection with the slayings of Ahmad Khalid al-Timmimi, 15, and his brother, Abbas 14. Now a staff sergeant, he faces an Article 32 preliminary hearing that began last week and will continue on Monday at Joint Base Lewis-McChord.
Family and village members told the Tribune-Review as part of a special investigative report, “Rules of Engagement,” that the teenagers were both deaf and mute, never armed and only tending to cattle when they died March 6, 2007, in a palm grove outside the Iraqi village of As Sadah, about 50 miles northeast of Baghdad.
Five members of the eight-member Small-Kill Team that Barbera led testified last week that they saw him fire the only shots at that position, moments after the cattle and the youths were first spotted in clear daylight in an area of high grass.
Retired medic Andrew Harriman said he did not see what Barbera was shooting at and did not know until told later. The other four team members testified that the boys were tending to cattle and appeared unaware of the team before Barbera shot, hitting the boys with one shot each.
Under cross-examination by defense attorney David Coombs, the witnesses testified they saw Barbera look through the ACOG scope on his rifle in the seconds before he shot. The scope magnifies the shooter's field of vision and generally has a red dot for centering the target, Army officials say.
Coombs asked the witnesses whether it was possible Barbera saw something in the scope before he fired that they did not see. Most insisted they had good views but added responses that experts say could favor the defense:
“Maybe.” “It's possible.” “Anything's possible,” they said.
Sgt. 1st Class Richard Grimsley, 41, who indicated he was confident the teens were unarmed, replied: “He could've.”
Coombs was introducing doubt about what the prosecution says was criminal intent, said experts who have been following news reports about Barbera's hearing.
Coombs was trying to show that Barbera “had the better view with the scope. Looking through a scope, you're going to see more than you will without,” Davis said.
The lawyer likely was trying to show Barbera's actions “may have been negligent rather than premeditated,” said Davis, who worked with Coombs as a defense witness in Pfc. Bradley Manning's WikiLeaks case.
If Coombs' tactic was successful, the premeditated murder charges carrying potential life sentences could be recommended for reduction by the investigating officer or at court-martial to lesser charges, Davis said.
“Anything the defense counsel can do to generate reasonable doubt is going to be effective,” said Eugene R. Fidell, a Florence Rogatz Visiting Lecturer teaching at Yale University Law School and the author of the Global Military Justice Reform blog, which advocates changes in the military justice system.
Fidell said that doubt likely won't prevent the case from going to court-martial, because Barbera never told team members why he would not let them conduct an assessment on the youths.
Grimsley testified that if one or both of the boys had worn a suicide vest — as he said Barbera tried to suggest another member had seen — they would not have performed a Battlefield Damage Assessment that was routine operating procedure when someone was shot.
His decision not to let some squad members check the teens after the shootings contributed to suspicions within the team that the shooting was a violation of the rules of engagement, Grimsley and others testified.
“There doesn't have to be proof beyond a reasonable doubt” at an Article 32 hearing, Fidell said. “It's not like this case is going to go away here somewhere. I think Sgt. 1st Class Barbera is in a world of trouble.”