4:25 p.m. update:
The big questions boiled down to timing at Staff Sgt. Robert Bales’ first appearance in court since the Army announced he’d face the death penalty on suspicion of massacring 16 Afghan civilians last March.
Prosecutors want to move quickly, contending that delays in the case could hinder the government’s ability to bring Afghan witnesses to U.S. soil for Bales’ court-martial. They’d like to go to trial by this summer.
The Joint Base Lewis-McChord soldier has a constitutional right to see his accusers in court, but a withdrawal of U.S. forces from southern Afghanistan could complicate the already lengthy process of flying witnesses out of the war-torn country, prosecutors said.
Bales defense attorneys, however, want to slow down the case. They contend they need another year and a half to prepare an adequate defense for the 39-year-old four-time combat veteran.
“There’s just a lot of work that has to be done here,” lead defense attorney John Henry Browne told Army judge Col. Jeffery Nance during Bales’ arraignment Thursday.
Bales, a father of two who spent his entire Army career with a Lewis-McChord Stryker brigade, did not speak during the 90-minute hearing except to confirm that he understood his rights. He deferred his plea.
He wore his dress uniform and appeared somewhat more relaxed than he did during a two-week hearing in November in which the Army presented gory evidence and graphic testimony connecting him to the killings that took place in the rural Panjwai District of Kandahar province.
On Thursday, he hugged his wife, Kari, when she arrived in court. He kissed her and asked about their recently ill son.
The boy is “doing better,” she said.
“Thanks for being here,” he told her.
Prosecutors insisted they wanted to ensure that Bales receives a fair trial, yet they were also mindful of the risks in Afghanistan. Two potential witnesses have been killed since the March massacre and two more were wounded, prosecutor Maj. Rob Stelle said.
Browne told reporters that NATO forces killed the two potential witnesses because they were considered to be enemy insurgents.
Defense attorneys argue that capital cases are lengthy by nature. A motion they submitted to Col. Nance noted that military capital cases tend to take about 600 days to go to trial after an incident.
Two ongoing Army capital cases illustrate that trend. In one, Sgt. John Russell is awaiting trial at Lewis-McChord on charges that he killed five U.S. service members outside a mental health clinic at a military base in Baghdad in May 2009.
In another, Maj. Nidal Malik Hasan is awaiting trial for his alleged murder of 13 people at Fort Hood, Texas in November 2009.
By contrast, the Army’s “kill team” investigation concluded about 18 months after officers learned of Lewis-McChord soldiers murdering three Afghan civilians in the spring of 2009. The Army did not seek the death penalty against any of the five soldiers it accused of homicide in that investigation.
“Death is different,” Browne said.
Prosecutors also want Bales to submit to a sanity board immediately. They argued that Bales cannot present a defense on mental health grounds unless he takes that examination. It is required under military law, and Nance said he would order one.
The timing and conditions on that examination are up for debate.
Defense attorney Emma Scanlan stressed that prosecutors should not receive any results from a sanity board until after Bales’ team indicates whether it will use a mental health defense.
Normally, military prosecutors are entitled to a “short form” answering three questions about the examination just after it takes place.
Bales’ attorneys in April and May refused to allow him to participate in a sanity board. They wanted that examination to be recorded and to take place with a certified neuropsycholgist. The Army declined those concessions.
Early this month, the Army rejected a defense motion to allow Bales’ team to hire an expert neuropsychologist. The Army argues its sanity board doctors are neutral parties.
“Nobody knows how the sanity board is going to come out,” prosecutor Maj. John Riesenberg said. “It could be favorable to the government. It could be favorable to the defense.”
“These doctors are not independent doctors,” Browne said. “These doctors work for the Army and the Army is trying to kill my client.”
Browne and Scanlan would not say Thursday whether they intend to pursue a mental health defense for Bales.
But after the hearing, Browne hinted that they intend to follow course. He told reporters that Bales had been diagnosed with post-traumatic stress disorder and head injuries before his 2011 deployment with the 3rd Brigade, 2nd Infantry Division.
Browne said he has records from MadiganArmyMedicalCenter to prove that Bales sought care for those ailments.
His statement countered an interview Bales’ wife, Kari, gave to NBC last year in which she said the soldier did not show any obvious signs of PTSD.
It was also more emphatic than language Browne and his partner have used in court filings. In those documents, which were first reported by The Associated Press, the attorneys say Bales “may have” suffered from PTSD and head injuries.