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Soldier accused of killing 16 Afghan villagers may face death penalty

- Associated Press - Wednesday, March 14, 2012

The U.S. military has held a probable cause hearing for the soldier suspected in the weekend killings of 16 Afghan villagers, but the military still has not released his name or said when charges would be filed.

The military justice system, in many cases, holds to the same basic tenets as the civilian system.

In both civilian and military law, a suspect in a crime cannot be held for more than 48 hours without a court hearing.

"There is a system in place to make sure that people simply aren't thrown into a dungeon somewhere," said Eugene R. Fidell, a former Coast Guard judge advocate who teaches law at Yale University.

The soldier in the Afghan village killings had such a hearing, and it was determined that there is cause to continue holding him, said Col. Gary Kolb, a spokesman for the U.S.-led military coalition in Kabul.

The 38-year-old staff sergeant and trained sniper is accused of the weekend slaughter of nine children and seven adults in the middle of the night and burning some of the bodies.

Defense Secretary Leon E. Panetta has said the death penalty is a possibility.

Col. Kolb did not say when the hearing was held or give any other details.

Mr. Fidell said that under the Uniform Code of Military Justice, the hearing was to determine that an offense punishable by court-martial had happened; that there was reason to believe the accused had committed the offense; and that there was cause to continue to hold the suspect, such as the possibility that he wouldn't return for trial or would commit another crime if released.

The U.S. military said the name of the suspect will not be released until he is formally charged.

"It's certainly unusual not to even release the name of a person who is taken into custody," Mr. Fidell said.

He said he thinks, but had no official information, that the name is being withheld for the safety of the soldier's family and concern about retribution.

Here is a look at what legal analysts expect in the Afghanistan case and some ways it will differ from the handling of a civilian case:

*A military court defendant first is charged and then sits through a preliminary "Article 32" hearing in which a military panel decides whether there is enough evidence to recommend a court-martial hearing.

At a court-martial, like a civilian trial, evidence is presented and either a judge or a jury made up entirely of military personnel rules on the defendant's guilt or innocence and decides punishment.

*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.

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