Updated Friday, January 18, 2013 at 04:56 PM
JOINT BASE LEWIS-MCCHORD — An Army judge Thursday said he will order a sanity review for Staff Sgt. Robert Bales, who faces a death-penalty court martial for allegedly killing 16 Afghan civilians.
But defense attorneys and prosecutors are skirmishing about how the examination will be conducted and how the results might be used.
Col. Jeffrey Nance, the presiding judge, said he will order the sanity ruling later this month and outline the conditions under which it will take place.
At the arraignment hearing Thursday, Bales opted to defer entering a plea.
So far, Bales has refused to participate in a sanity review the Army initially tried to schedule last spring.
The examination by military doctors would include a determination of whether Bales, then on his fourth tour to a combat zone, suffered from a severe mental disease at the time of the alleged crimes.
Bales is accused of a predawn rampage in southern Afghanistan that killed 16 villagers, mostly women and children, in the most serious U.S. war-crimes case to emerge from the long war in this southwest Asian nation.
During a November pretrial hearing, witnesses sketched a dark portrait of Bales taking steroids, drinking and prone to outbursts of anger while deployed to a small outpost in southern Afghanistan. In the predawn hours of March 11, he allegedly twice took off on foot to kill civilians and burn some of their bodies.
Bales attorneys say they have evidence that he did have significant mental-health problems. In a court filing, they cite a witness who says that Bales lost consciousness following a bomb blast in Iraq and noted that his behavior changed after that injury.
On Thursday, defense counsel John Henry Browne said that before leaving for Afghanistan, Army medical staff diagnosed Bales with post-traumatic stress disorder and a traumatic brain injury. However, the diagnostic records are incomplete.
Before approving a review, Bales’ attorneys set forth several conditions. They want to be present at the hearing or receive a recording of the proceeding. They want a role in selecting the types of doctors on the panel.
They also say prosecutors should only receive results of the review if Bales’ defense is based on mental-health issues.
“We are not asking to slow down the case by not participating,” Emma Scanlon, a Bales defense lawyer, told Nance.,“But what we are asking is that the process be fairer to our client.”
Prosecutors say that military law governs how the reviews are conducted and allow them to receive a summary of the result no matter what defense is prepared.
If Bales opts out of the sanity-board review, prosecutors say the judge should prohibit any mental-health defense.
“Either he submits — with full cooperation — to an examination ... or he is expressively prohibited from presenting such matters through expert testimony during trial,” argued Col. Rob Stelle, an Army prosecutor, in a Jan. 3 motion obtained by The Associated Press.
Defense attorneys and prosecutors also sparred over the timing of the trial, which prosecutors estimate could take 45 days and involve some 30 Afghan witnesses who would be flown to the United States to testify.
No member of the U.S. military has been put to death since 1961.
Hal Bernton:; 206-464-2581 or firstname.lastname@example.org