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Updated Monday, November 5, 2012 at 03:38 PM

Pretrial hearing in Afghan massacre to begin Monday

By Hal Bernton
Seattle Times staff reporter

In a pretrial hearing that will span two continents, Army prosecutors for the first time will lay out their case against Staff Sgt. Robert Bales for allegedly killing 16 Afghans and wounding six others in one of the biggest U.S. war-crimes cases of the post 9/11 era.

The two-week hearing is scheduled to begin Monday at Joint Base Lewis-McChord. During the second part of the hearing, Afghan villagers are expected to testify about the March 11 killings at a base in Kandahar province. Bale's lead attorney, John Henry Browne, plans to be in Afghanistan when the villagers testify.

The hearings also will put an unusual spotlight on a small U.S. Special Forces outpost where Bales, a regular Army soldier, assisted with security until he allegedly walked away to gun down his victims in two nearby villages.

Bales is accused of walking off his base with his 9mm pistol and M-4 rifle, which was outfitted with a grenade launcher; killing mostly women and children; and burning some of the bodies.

Bales, 39, enlisted in the Army in 2001, and served three tours in Iraq with the Lewis-McChord-based 3rd Brigade, 2nd Infantry Division before his final deployment to Afghanistan in December 2011.

Several former colleagues, in earlier interviews, portrayed Bales as an outstanding soldier.

But in the charging documents, prosecutors allege Bales repeatedly abused steroids and, in violation of an alcohol ban in the field, was drinking on the night of the killings. Prosecutors have amassed some 5,000 pages of investigative documents from the Army that include initial statements from witnesses.

Browne says some of the witness statements don't track with the Army's version of Bales acting alone. Instead, he said some indicate there was more than one shooter.

Still, Browne said he won't make an issue of the possibility of multiple shooters in the pretrial hearing.

"It's for an obvious reason," Browne said. "It doesn't help our case."

Chris Gray, a spokesman for the Army Criminal Investigative Division, said the investigation is ongoing. He would not comment on whether investigators are looking at the possibility that other soldiers were involved in the killings.

Browne said he only received blood work, DNA and other forensic evidence from prosecutors last week and hasn't yet analyzed it.

"My only comment is that it is very confusing," Browne said.

In Afghanistan, Bales was separated from his Lewis-McChord brigade and assigned to assist in security at the Special Forces outpost of Belambay.

Belambay is located in the fiercely contested Horn of Panjwai, a Taliban stronghold that is now dotted with numerous U.S. military bases.

U.S. Special Forces, whose operations are typically shrouded by secrecy, have been active for years in the area. They assisted in a major 2006 assault on Taliban forces and have been part of a broader effort to put pressure on insurgents. Browne said troops at the outpost were under frequent attack and Bales had been upset by the serious wounding of a comrade who stepped on a bomb in March.

The hearing is expected to help flesh out details and a timeline of March 11. The Army, for example, has yet to disclose how long Bales was absent from the Special Forces outpost, when other military personnel first became aware of his alleged actions, and what was their response.

It is also unclear whether other U.S. military personnel heard any of the shots fired that night, or if they were able to monitor Bale's activity through surveillance cameras hanging from a helium balloon. Those cameras can offer, even in nighttime, detailed views of courtyards and streets in villages.

There also is uncertainty about what prescription drugs Bales might have been taking, in addition to his alleged use of steroids and alcohol.

One drug that has been the topic of considerable speculation in media reports is mefloquine, which is used to prevent malaria but has side effects that in some people can include paranoia, aggression and psychosis, according to a Department of Defense document.

The U.S. military now calls for the use of two other malaria-prevention drugs to be taken by U.S. troops in Afghanistan. Still, mefloquine has sometimes been used in Afghanistan.

Browne said he has been unable to determine whether Bales was taking mefloquine or other prescription drugs, and doesn't expect to address that issue during the pretrial hearing.

The hearing, called an Article 32, resembles a grand-jury preceding.

A presiding officer will decide whether there is enough evidence to recommend a court-martial.

For defense attorneys, it's a chance to get prosecution witnesses under oath and look for holes in their stories.

"It's a great opportunity to pin witnesses down to exactly what their statements are, and pin down discrepancies. That's the most important thing," said Colby Vokey, a military trial lawyer in Texas who has defended clients in war-crimes cases.

The pretrial hearing could include testimony from some of those wounded in the attack.

Of the six wounded, four were treated in coalition medical facilities and released in March and one was released from a coalition facility care in August. Another victim wounded in the attack died while under coalition care, according to Lt. Col. Gary Dangerfield, deputy public-affairs officer for I Corps at Joint Base Lewis-McChord.

Dangerfield did not comment on whether that death would result in an additional murder charge being filed in the case.

Since this case involves Special Forces, the secrecy surrounding their operations may make it more difficult to ferret out evidence. "I would say it definitely creates another barrier that would not exist otherwise," said Eric Montalvo, a military trial lawyer.

In the months ahead, Bales' mental state at the time of the slayings may receive additional scrutiny through an Army sanity-board review of doctors.

Board doctors would meet with Bales and review his files to understand more about his personal life and military experience. They would determine whether Bales had a severe mental disease or defect at the time of the killings. They also would decide whether he is able to appreciate the wrongfulness of his alleged conduct, to understand the court-martial proceedings and to cooperate in his defense, according to an Army official briefed on the decision.

Earlier this year, Browne said he had advised his client not to participate in a sanity board because the Army had denied defense requests to allow Bales' lawyers to be present, make a recording of the proceedings and put a neuropsychologist on the board.

In a recent interview, Browne said the defense team is negotiating the terms of a sanity board.

But Browne said he believes his client is mentally competent, and expects the case to proceed to a court-martial.

The Bales hearing comes just one year after the Army finished a series of war crimes prosecutions at Lewis-McChord that resulted in the convictions of four soldiers in connection with the murder of three Afghans in 2010.

Material from The Associated Press was included in this report.

Hal Bernton: 206-464-2581 or hbernton@seattletimes.com



Staff Sgt. Robert Bales




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