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Updated Thursday, December 20, 2012 at 07:55 AM

Bales' lawyers attack Army pursuit of death penalty in Afghan killings

By Hal Bernton and Mike Carter
Seattle Times staff reporters

The Army will seek the death penalty against Staff Sgt. Robert Bales if he is convicted of murdering 16 Afghan civilians in two remote villages in Afghanistan earlier this year, Army officials announced Wednesday.

The decision brought a sharp response from Bales' civilian lawyers, who accused the military of pressing the prosecution of Bales to divert attention from its own role in sending a traumatized and possibly brain-injured soldier into combat for a fourth deployment.

"I do not think the Army is taking responsibility for its own," said Seattle defense attorney John Henry Browne at a news conference Wednesday afternoon.

"We understand the decision to seek the death penalty. But we also believe it is totally irresponsible to do so," he said, particularly in light of evidence the defense believes proves Bales suffered from post-traumatic stress disorder and a traumatic brain injury received during a previous deployment.

Browne said Bales, a member of a Stryker Brigade assigned to Joint Base Lewis-McChord, was seeking help at Madigan Army Medical Center when he was returned to Afghanistan for a fourth combat deployment.

"The Army bears the responsibility for sending him there," Browne said.

The decision announced Wednesday to move ahead with a death-penalty court-martial was made by an unidentified brigade commander who reviewed the findings from a pretrial hearing in November.

The hearing included extensive testimony from Afghan survivors of the killings that unfolded after Bales allegedly twice slipped away in the predawn hours of March 11 to walk to the two villages near an Army outpost. Of the 16 Afghans killed, nine were children. The massacre represents the most serious war crime attributed to a U.S. service member deployed there.

No U.S. service member has been put to death since 1961.

Bales, 39, is in custody at the Lewis-McChord base south of Tacoma. No date has been set for a court-martial, according to Lt. Col. Gary Dangerfield, a public-affairs officer at the base.

Under the military code of justice, the case would be heard by a panel of Army service members. They would render a verdict on the charges that also include six counts of attempted murder, seven counts of assault and the use of steroids.

Once verdicts are reached, the court-martial would enter a second phase to determine sentencing, with a unanimous verdict required to sentence him to death, according to Dangerfield.

At the time of the alleged crimes, Bales was with a small unit of soldiers from the 3rd Brigade, 2nd Infantry Division assigned to serve with Special Forces at an outpost set up in an area of Kandahar province that is an insurgent stronghold.

Army prosecutors described Bales as lucid, coherent and responsive after he was taken into custody

Testimony during the November hearings indicated Bales was drinking alcohol before the killings and returned to the base wearing a blue cloth cape and bloodstained clothes.

"I thought I was doing the right thing," he told other soldiers, according to testimony at the hearings.

Browne called the unit "dysfunctional" and said the Army is conducting an investigation into lapses in discipline there.

Browne's law partner, Emma Scanlan, said Bales was provided alcohol and illegal steroids and questioned the Special Forces who gave them to a soldier who "was showing signs of mental disturbance."

Bales' wife, Kari Bales, in a March interview with NBC's "Today" show, said she thought her husband was OK to deploy to Afghanistan and that she did not detect he was suffering from post-traumatic stress disorder. "I don't know a lot about the symptoms of PTSD, so I wouldn't know," she said. "He doesn't have nightmares, you know, things like that."

But Scanlan said Bales had been treated at Madigan for a traumatic brain injury and PTSD, and that his treatment there was "shockingly limited."

"We kind of think that this is just another piece of how the Army treats its soldiers who are mentally wounded," Scanlan said.

Browne pointed out that Madigan has been criticized by Washington Sen. Patty Murray, among others, for allegedly underdiagnosing or reversing findings of PTSD for soldiers leaving the Army, allegedly for cost considerations.

"They seem to have a disregard of the role that Madigan played in an event of this magnitude," Scanlan said.

Kari Bales, in a written statement released Wednesday, said that her husband is entitled to the presumption of innocence and to a fair trial.

"That's what I was taught this country is about ever since I was a child, and it is what my own babies will be taught as they grow up," she said. "I no longer know if a fair trial for Bob is possible, but it is very much my hope and I will have faith."

She says she and her children are able to visit Bales for a few hours each weekend.

Before a court-martial, Bales could undergo an Army "sanity board" review by doctors who would determine whether Bales had a severe mental disease or defect at the time of the killings.

Bales has twice declined to participate in those boards, Browne said, because the defense had concerns about board participants and how the information from such a review might be used by prosecutors.

Browne said Wednesday that he is talking again with prosecutors about the review.

"He understands the gravity of the situation," Browne said Wednesday after Bales was told of the Army's decision.

"Right now, we are just trying to avoid being the first Army execution in 50 years," he said.

The Associated Press contributed to this report.

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



Staff Sgt. Robert Bales in Aug. 2011. (Photo courtesy of Spc. Ryan Hallock via DVIDS)





Army bears "responsibility for sending him there."




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