In Afghan massacre, mental health check could come first

By Oren Dorell and Jim Michaels USA Today Published: March 19, 2012

The soldier accused of killing 16 civilians in Afghanistan faces military justice similar to a civilian criminal trial, a process likely to begin with a months-long mental health evaluation, a military legal expert says.

Although Staff Sgt. Robert Bales’ lawyer has raised the issue of combat stress, it is rarely used as a defense in courts-martial because stress is commonplace in a military at war, says Philip Cave, a retired Navy lawyer who practices military law.

Bales was being held in isolation Sunday at Fort Leavenworth in Kansas. The Army has found probable cause to hold him in the killing of 16 Afghan villagers.

Bales’ lawyer, John Henry Browne of Seattle, said Sunday that he expected to meet with Bales for the first time today.

Bales is also likely to be evaluated for his alcohol use and his treatment for traumatic brain injury related to a vehicle rollover while on deployment in Iraq, Cave said.

The mental evaluation to determine fitness for trial is “the first thing that’s going to happen,” Cave said. “Both the prosecutors and defense have an interest in getting that done now because it’s going to be an issue.”

The standards for establishing insanity in military courts are similar to civilian courts, where defense lawyers need to prove a defendant couldn’t distinguish between right and wrong while committing a crime.

Bales was serving his fourth combat tour, after three in Iraq, and his injuries included losing part of his foot. A soldier in his unit lost part of his leg in an attack the day before the rampage, but his experiences are not unusual for combat troops, Cave said.


“I’ve had clients who’ve been through six deployments, and they’ve flipped out in other ways but not like this,” he said.

Combat stress could play an important role during the sentencing phase of a trial, when a defendant’s state of mind can be considered a mitigating factor, however. Bales’ mental state, “might be the key to him getting sentenced to life without parole rather than death,” Cave said.

Bruce White, a California defense lawyer and retired Marine colonel, said the condition of post-traumatic stress disorder can soften a sentence after conviction. “Usually, PTSD is a very difficult defense,” White said. “It can be significant in sentencing.”

Before trial, Bales will face an Article 32 hearing, equivalent to a grand jury proceeding, in which prosecutors make the case for criminal charges. In the military version, Bales will have the right to attend, and his lawyer can present and cross-examine witnesses.

The military system is more “protective” of an individual rights than the civilian system, White said. For example, if a suspect made a statement to a commanding officer who did not first read him Miranda rights, a defense lawyer could attempt to have the entire statement suppressed.

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