The Court Martial of Sgt. Robert Bales: Will it Be Lengthy and Complex? (UPDATED)
Army Staff Sgt. Robert Bales will be charged on Friday with 17 counts of murder and various other charges, including attempted murder, in connection with the March 11 shooting deaths of Afghan civilians, a senior United States official said on Thursday.
Sergeant Bales, who is 38 years old and had been serving his fourth combat tour overseas, is expected to be charged at Fort Leavenworth, Kansas, where he is being held.
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The Seattle Times highlights some of the challenges prosecutors may face in the case of Sgt. Robert Bales.
Proving that some of the victims were indeed younger than 15. (The ages of the victims is an aggravating factor in seeking the death penalty)
Collecting evidence at the crime scene by both Afghan and U.S. investigators: “What is the chain of command for the evidence?”; Different evidence standards; etc.
Security at the crime scene.
The logistics, credibility, language, trust, reliability and other issues surrounding eye witnesses and witnesses’ testimony.
Neal Puckett, a former judge advocate general, says that there is not a recent comparable case in the military, thus “prosecutors are working without a template”:
The facts themselves aren’t that complicated … But you really have to go back to My Lai to find a similar matter in a war zone. And even then, even if twisted, that case began with a combat rationale. This one didn’t.
Read more about this complex and evolving military justice case here
In a discussion on whether Sgt. Robert Bales’ home base, Lewis-McChord, is really the “most troubled base in the military,” I concluded, “[w]e may have more definitive answers to all these questions … after the lengthy investigations sure to come and after the trial itself.”
Over at the New York Times, John Schwartz gives us an idea of just how lengthy “the military path to justice” could be in the case of the massacre of 16 Afghan civilians allegedly committed by Bales.
Although the military justice system is designed “to be flexible enough to be convened on a battlefield, and broad enough to deal with anything from theft and insubordination to atrocity,” and although the system proceeds deliberately “regardless of the enormity of the charges and the international repercussions of the acts involved,” Schwartz cautions that experts agree that “there will be no quick resolution in this case, especially if the charges carry the death penalty, which Defense Secretary Leon E. Panetta said last week ‘could be a consideration’ in the case.”
John Galligan, a military lawyer in private practice in Texas, and Eugene R. Fidell, who teaches military justice at Yale, believe that the case will take several years and that there is still a lot to be learned, respectively.
One of the reasons for the potentially lengthy process is the fact that evidence has to be collected “under difficult conditions thousands of miles away, potentially with few of the safeguards that courts in both the military and civilian worlds rely on when it comes to building a trustworthy account” and the questions such a process could bring up in the courtroom.
According to the Times:
Gathering evidence and securing the cooperation of witnesses can be bedeviling in far-flung places, and contributed to the collapse of the prosecutions against Marines linked to the killings of 24 men, women and children in the Iraqi city of Haditha. Charges were dropped against most of the Marines who were tried in that case. In another case — the murders of three Afghan civilians in the Maiwand District in Kandahar Province in 2010 by a rogue “kill team” from Sergeant Bales’ base, Lewis-McChord —11 of the 12 soldiers tried were convicted.
There are other factors affecting the duration and complexity of this particular process such as the aforementioned possibility that the military may seek the death penalty and that, “[u]nless a plea deal is struck, the outcome is anything but certain.”
The Army prosecuted 44 soldiers for murder or manslaughter of civilians in Iraq or Afghanistan from 2001 to 2011; 30 were convicted of some form of homicide, 6 were convicted of other offenses and 8 were acquitted. No one has been executed under the Uniform Code of Military Justice since 1961.
If the military seeks the death penalty, “much of the work of his legal team will shift to keeping him off death row.”
Sergeant Bales’ reported memory loss, possible claims of insanity, PTSD and many other extenuating and mitigating circumstances and factors will come into play.
Finally, the alleged prejudicial effects that the defense will claim statements by those higher in the chain of command have had on members of the court-martial — the so-called unlawful command influence — will play a big role.
Again, the Times:
Among other statements, President Obama has called the killings “tragic and shocking,” and called President Hamid Karzai of Afghanistan last week to pledge that the United States would “get the facts as quickly as possible and to hold accountable anyone responsible.”
Mr. Panetta has called the killings a “criminal act.” When asked whether there was a confession, said, “I suspect that that was the case.”
Yes, the military justice system is well defined, yet flexible, and proceeds deliberately.
However, this case — one that will be watched very carefully around the world — will exact the most from defense and prosecution officials, and from so many others involved.
Douglas Berman, an expert on sentencing at Moritz College of Law at Ohio State University, says, according to the Times:
Every high-profile case, civilian or military takes on dimensions and dynamics that are less familiar and less predictable because there are often interests, both expressed and implied, that transcend resolving this individual case justly. Everything that happens in this case is going to have direct international echoes in terms of the ongoing war effort.
“Let me put it this way, I’m real glad I’m not involved — on either side,” Berman adds.
Read more here.