Case against US soldier presents challenges for prosecutors

In this Aug. 23, 2011 photo, Staff Sgt. Robert Bales participates in an exercise at the National Training Center at Fort Irwin, Calif.


By MATTHEW SCHOFIELD | McClatchy Newspapers | Published: March 20, 2012

WASHINGTON — In the United States, a murder case can be pretty straightforward: the victim dies, police collect evidence and use it to pursue suspects.

But as U.S. military prosecutors prepare to charge Army Staff Sgt. Robert Bales in the deaths of 16 Afghan villagers, the challenges they face are certain to make the high-profile case anything but straightforward.

Consider this: Top Afghan officials have called for the suspect to face the death penalty — a possibility that even Defense Secretary Leon Panetta has acknowledged — but one aggravating factor that could lead to capital punishment is whether some of the victims were under 15 years of age.

While initial accounts suggest that nine children were killed, the bodies were immediately buried according to Islamic custom. Experts note that in a place where identity records are scarce — and where even the act of collecting spent shells for study can be deadly — how do prosecutors prove that a victim was indeed under 15, was in fact murdered, and was in fact murdered by a bullet from a particular gun?

Military law experts say that the case will be littered with potential traps for the prosecution, including the fact that both Afghan and U.S. investigators have collected evidence from the crime scene.

“What’s the chain of command for the evidence?” asked Eugene R. Fidell, a military law expert at Yale Law School. “Already there have been questions about the roles of Afghan and American investigators, and we’re relying on evidence collected by Afghans. Are their evidence standards our evidence standards? Are they putting their investigation first, or ours? We will find out.”

A U.S. military official, who wasn’t authorized to be identified because of the sensitivity of the investigation, acknowledged: “In Chicago, or Los Angeles, investigators just head to the scene of the crime. They don’t have to arrive by helicopter for security reasons, and they don’t take enemy fire while they’re collecting evidence.”

While the investigation presents roadblocks, the standard by which a military case is judged is no different than in a civilian trial: A suspect to be convicted must be proven guilty beyond a reasonable doubt.

To meet that burden of proof, military prosecutors will need eyewitnesses, solid forensic evidence and a concrete timeline — all the things a civilian prosecutor would be expected to produce.

Yet this case is for a crime allegedly committed in Afghanistan, in a remote part of the southern province of Kandahar. The Afghan witnesses don’t necessarily trust the United States. A U.S. military law expert who briefed reporters in Kabul this week on condition of anonymity said at least some Afghans would probably be brought to the United States to testify — an intimidating trip for villagers, many of who have never left Afghanistan.

Afghan witnesses who do testify not only won’t speak English, but they also won’t have been raised with an understanding of the American legal system. Experts note that they could be terrified by the setting, the process, the travel and the uncertainty in their mind of what is expected of them on the witness stand.

The case also has been highly politicized in Afghanistan, with some top officials charging — despite strenuous U.S. denials — that numerous U.S. soldiers were involved. In a country increasingly opposed to the foreign military occupation, the witnesses’ testimony could be called into question, experts said.

At the briefing with the U.S. military expert, one question from an Afghan reporter made it clear that some Afghans distrust the American process. The reporter asked, “Don’t you think that two different investigation teams damages the validity of the findings to the case?”

The expert noted: “The information I have from our investigators is that they are having good cooperation with the Afghan investigators.”

The case could take a long time to wind through the system, and that is one consideration in holding the trial in the United States instead of Afghanistan. If the case lasted years, deployments would begin and end while it continued, making defense and prosecution continuity difficult. The deadly 2009 shootings at Fort Hood in Texas won’t go to trial until June, and that took place in the United States.

Neal Puckett, a military law expert and a former judge advocate general, said he expected the military to pile on as many charges as possible. In addition to murder charges, prosecutors could add charges of disobeying orders, assault and attempted murder for those who were wounded but survived, and arson because some of the bodies were reportedly burned.

Puckett said that there isn’t a recent military case that is comparable, so prosecutors are working without a template.

“The facts themselves aren’t that complicated,” he said. “But you really have to go back to My Lai” — the site of a massacre of hundreds of civilians by U.S. soldiers during the Vietnam War — “to find a similar matter in a war zone. And even then, even if twisted, that case began with a combat rationale. This one didn’t.”

Phil Cave, another law expert who defends military clients, said that if prosecutors plan to pursue the death penalty, it would further complicate matters. The military hasn’t executed anyone since 1961.

Cave said public comments by Bales’ Seattle attorney, John Henry Browne, seem to point to a wide-ranging defense that will put the military system on trial — and make pursuing the death penalty difficult. Browne has focused on the impact of a traumatic brain injury that Bales might have suffered while previously stationed in Iraq, the possibility of post-traumatic stress disorder, the impact of four war zone deployments and the fact that Bales believes he was sent to Afghanistan with little notice.

“The military will make the case that there were aggravating factors (for the death penalty), the age and number of the victims, the possible impact on national security,” Cave said. “But history shows it will be an uphill struggle for them. It sounds straightforward, but expect it to take a while to get sorted out.”

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