Staff Sgt. Robert Bales’ alleged massacre of 17 Afghan civilians has made headlines around the globe, fueled growing – and perhaps irreparable - tensions between the U.S. and Afghan governments, and raised new questions about the Obama administration’s handling of the long and unpopular Afghan war.
His defense, by contrast, could have been used on an episode of "CSI". Bales’ civilian defense attorney, like those on the show, plans to aggressively challenge the military’s assertion that there is significant forensic evidence linking his client to the crime.
“My first reaction to all of this is, ‘prove it,” John Henry Browne said on CBS’ “This Morning.” “This is going to be a very difficult case for the government to prove in my opinion. There is no CSI stuff. There's no DNA. There's no fingerprints."
That remains to be seen, but there is no doubt that the military’s formal charges Friday against Bales begin what is sure to be a long and politically-charged trial. Bales, the sole suspect in the March 11 mass shooting, was accused of the premeditated killings of 17 Afghan civilians and the attempted murders of 6 others. If he’s convicted, he could face the death penalty.
The actual military charge sheet, though written in the dry language of a legal document, nevertheless offers a vivid illustration of the horrors of the rampage in southern Afghanistan’s Kandahar province. Bales, the military prosecutors write, assaulted an unnamed Afghan girl “by shooting her with a loaded firearm and did thereby intentionally inflict grievous bodily harm upon her, to wit: gunshot wound to the head.”
Military prosecutors plan to argue that the attack was premeditated because Bales allegedly snuck away from the base, walked a mile or so the nearest village, and killed as many Afghans as he could. Those actions, the military lawyers are sure to assert, weren’t those of a man who just suddenly snapped in the heat of the moment.
Despite the international significance of the case, however, Browne plans to mount what seems like a far more prosaic defense. He has questioned the military’s account of what took place that bloody night and argued that no forensic evidence definitively links his client to the crime. He has also indicated that he might mount an insanity defense tied to a brain injury Bales is said to have received during an earlier tour in Iraq.
“The mental state eventually will be definitely an issue,” Browne told CBS.
Phil Cave, a retired Navy lawyer who has been practicing in the military legal for three decades, said in an interview that Browne would likely use multiple approaches as he worked to clear his client or at least save him from being put to death.
“I think he’s currently working on two strategies: challenging the evidence that his client was his shooter and then getting down to his state of his mental health at the time of the attack,” Cave said.
Cave said that much of Browne’s work would be similar to the methods used in civilian courts – and which would be familiar to any viewers of “CSI” or “Law and Order.” But he cautioned that the military’s version of an insanity plea isn’t necessarily an effective one.
“The diminished capacity argument works on occasion, but not as frequently as some would like,” he said.
In addition to being formally charged Friday, Bales was shifted from the purview of the U.S.-led NATO alliance in Afghanistan to Joint Base Lewis-McChord, in Washington State. A spokesman for the sprawling facility said that Col. Kenneth Kamper, the commander of Bales’ brigade, will decide whether to recommend a full court martial.
Afghans have demanded Bales be tried in Afghanistan, but the military has already made clear that the suspect -- currently being held at the maximum-security facility at Kansas’s Fort Leavenworth -- is virtually certain to be tried here, though not necessarily at Lewis-McChord
Once prosecutors indicate whether they’ll pursue the death penalty, the court-martial trial itself -- which could take anywhere from several months to several years -- will first determine Bales’s guilt or innocence and then decide on his sentence.
Any verdict could be appealed within both the military legal system and the civilian one, a process that could add additional years of wrangling, particularly since Browne has said he may travel to Afghanistan to interview witnesses and collect his own evidence.
Many military lawyers also expect Browne to argue that Bales was denied the possibility of a fair trial because the proceedings were tainted by “undue command influence,” remarks by higher-ranking officials like Defense Secretary Leon Panetta that could influence the trial by preemptively indicating that they believed Bales to be guilty.
Those defenses may not be enough to earn a non-guilty verdict, but they could preclude Bales from receiving the death penalty. Regardless, that kind of sentence would be a long time coming. The last soldier executed under the military justice system was put to death in 1961, a half-century ago.