Staff Sgt. Robert Bales deferred entering a plea Thursday at Joint Base Lewis-McChord to 16 counts of premeditated murder and other charges related to a nighttime attack on two villages last March. The Army is seeking the death penalty.
But the judge, Col. Jeffery Nance, took up arguments over whether Bales can present a mental health defense or testimony from mental health experts, given that he has not yet participated in a "sanity board" review.
The judge ordered that to take place, but made no decisions about the conditions for the review or what information from it would be turned over to prosecutors — something prosecutors and defense attorneys have been arguing about.
Such reviews are conducted by neutral doctors tasked with discerning a defendant's mental state at the time of the crime and whether he's competent to stand trial.
Bales was serving his fourth deployment, and his lawyers said he may have suffered from a traumatic brain injury. His mental health has been expected to be a key part of the case.
"An accused simply cannot be allowed to claim a lack of mental responsibility through the introduction of expert testimony from his own doctors, while at the same time leaving the government with no ability to overcome its burden of proof because its doctors have been precluded from conducting any examination of the very matters in dispute," prosecutor Maj. Robert Stelle wrote in a Jan. 3 motion obtained by The Associated Press.
Bales' attorneys have said a traumatic brain injury may have been sustained when he was knocked out by an improvised bomb explosion during one of his tours in Iraq.
One of those attorneys, John Henry Browne, said Thursday that the defense has obtained medical records from Madigan Army Medical Center in Washington state indicating Bales had suffered from TBI and PTSD, but he described those records as incomplete.
The attorneys have thus far refused to let him take part in the sanity board because the Army would not let him have a lawyer present for the examination, would not record the examination and would not appoint a neuropsychologist expert in traumatic brain injuries to the board.
"These are not independent doctors; they're doctors who work for the Army, and the Army is trying to kill my client," Browne said after the hearing. "If there's a tape recording, you know what people say."
However, Browne also said Bales might participate — as long as only certain information about the results are forwarded to prosecutors. Prosecutors should promptly receive findings about his current competence, but nothing about his mental state at the time of the attack, they said.
To allow the sanity board to share the basic results of the examination — the "short form," with answers about his mental health diagnosis and mental state at time of the attack — would be to provide prosecutors with information based on compelled statements from the defendant. That could violate his right against self-incrimination under the Fifth Amendment to the Constitution, defense co-counsel Emma Scanlan told the judge.
The Army isn't entitled to such information unless the defense makes an issue of Bales' mental health at trial, which they haven't yet done, she said.
"There is no authority for the bizarre proposition that the accused has to submit to a compelled mental health examination before he gives notice of a mental defense," she wrote in a motion filed Tuesday.
The judge said he would rule later on the conditions of the sanity review and when the prosecutors could have access to the results.
Prosecutors said Bales, a father of two from Lake Tapps had been drinking before he slipped away from his remote outpost in southern Afghanistan to attack the villages. Soldiers testified at a pretrial hearing in November that Bales returned to the base alone, soaked in blood, after the shootings.
Bales' lawyers have criticized the base at Camp Belambay where Bales was stationed, saying that Special Forces members there gave him banned substances including alcohol, Valium and steroids. They insist that by seeking the death penalty the Army is ignoring its own responsibility for sending him to war.
Prosecutors also argued Thursday for setting the trial quickly — for June 10 — because many witnesses remain in a volatile part of Afghanistan. Two possible witnesses have already been killed in separate and unrelated attacks, they noted, and as American troops withdraw, access to those witnesses is only going to get tougher and more dangerous.
"Simply stated, with each day that passes, the government's right to a fair trial is further jeopardized," they wrote in court filings.
Browne said the prosecutors neglected to mention one thing about the two witnesses who were killed: They were on a list of insurgents, and were actually killed by U.S. forces.
Scanlan said setting a trial this year is unrealistic, given how much time the defense team needs to review more than 30,000 pages of discovery materials, and find and interview witnesses — not to mention getting their own client to open up. The defense has suggested a May 2014 trial date.
"Without adequate time to develop the relationship of trust required for effective representation in a capital case, counsel may never learn or be able to present the most crucial facts about the accused, facts without which any possible understanding of his actions is impossible," she wrote.
The judge did not set a trial date, but did indicate that June was too soon.
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