*In the Afghanistan case, it’s likely the defense will argue that the accused does not have the mental capacity to stand for even the Article 32 hearing, which would mean he would first go before a panel of three mental health specialists, said Greg Rinckey, managing partner of Tully Rinckey PLLC and a former Army judge advocate general lawyer.
That mental health panel, which probably can be convened in Afghanistan, will have to decide whether the defendant has a mental illness and can tell right from wrong. As long as the two criteria are met, a trial will go forward, Mr. Rinckey said.
*The defense attorney probably will push for the psychological evaluation and the hearings to convene outside of Afghanistan, Mr. Rinckey said. But the suspect definitely will be tried in a U.S. military court and likely in Afghanistan.
Unlike a civilian who commits a crime in a foreign country and is subject to the laws of that country, there is a U.S.-Afghan agreement that U.S. forces are immune from arrest and detention by Afghan authorities and instead fall under the jurisdiction of the U.S. military codes and judicial system.
*Lawyers said it likely will be some time before the case goes to any punishment stage.
“If it’s going to be a death penalty case [as Mr. Panetta has suggested it might be], it could take a year or more,” Mr. Rinckey said.
*Juries in military trials can be as few as five, but there must be 12 in death penalty cases, Mr. Fidell said.