Lawyers representing a Stryker soldier accused of murdering an Afghan civilian on Wednesday pressed their case that the Army is denying him a fair hearing by withholding images of the man he allegedly killed.
Proceedings against Pfc. Andrew Holmes of Boise, Idaho, are on hold while the Army Court of Criminal Appeals considers whether the government should disclose the photos to his attorneys.
Dan Conway, Holmes’ attorney, submitted a brief to the court Wednesday that criticized the Army for concealing photos that could demonstrate whether Holmes was responsible for the Afghan’s death. He’s now awaiting a decision from the appeals court.
Holmes is one of five 5th Brigade, 2nd Infantry Division soldiers at Joint Base Lewis-McChord who are accused of murdering three Afghan civilians during their deployment earlier this year.
Col. Barry Huggins, their brigade commander, has ordered that their photos of Afghan casualties remain concealed out of concern that could spark violence against American soldiers. At least three photos are believed to show three different soldiers posing with dead Afghans.
Conway wants the Army to drop charges against Holmes or release the photos so Holmes can present his full defense.
“We fully understand and are sympathetic to the view that these photographs present difficulties and could have a deleterious effect on the war effort in Afghanistan,” he wrote in a September email to prosecutors. “We also understand that there is a constitutional obligation to balance the interests of Pfc. Andrew Holmes with the interests of the nation.
“The solution is not to cloak this trial in faux secrecy, but rather to withdraw the charges against Pfc. Holmes associated with these photos and declare that the interests of national security outweigh further prosecution.”
In the new brief, Conway argued that the government stacked the deck against Holmes by calling on witnesses to describe images of the man Holmes allegedly killed but not providing the same photos to a defense expert who could have analyzed the Afghan’s wounds to determine whose weapon caused the death.
“The idea that an accused combat veteran in pretrial confinement may be denied the ability to present exculpatory evidence while the government indirectly uses that very evidence for incriminating purposes is troubling,” Conway wrote.
Prosecutors contend that Holmes has received a fair hearing in accordance with the Uniform Code of Military Justice. They wrote in a brief to the appeals court that Holmes can press his argument to release the photos with a military judge if the case proceeds to a full court martial trial.
Conway also criticized the Army for briefly providing the photos to military defense attorneys stationed at Joint Base Lewis-McChord and then demanding that the lawyers return them. Army defense attorneys protested the order, but ultimately complied. The images have since been stored at Lewis-McChord’s Criminal Investigations Division.