- Associated Press - Thursday, January 17, 2013

SEATTLE (AP) — The U.S. soldier accused of carrying out the massacre of 16 Afghan civilians during nighttime raids on two villages last year deferred entering a plea Thursday to charges that could bring the death penalty.

Staff Sgt. Robert Bales appeared in a courtroom at Joint Base Lewis-McChord on Thursday morning for his arraignment on 16 counts of premeditated murder and other charges.

Defense lawyer John Henry Browne told The Associated Press earlier this week that Sgt. Bales would plead not guilty, but another attorney, Emma Scanlan, told the judge that Sgt. Bales would defer entering a plea.

Prosecutors say Sgt. Bales, a father of two from Lake Tapps, Wash., had been drinking early last March 11 before slipping away from his remote outpost in southern Afghanistan to attack the base. Nine children were among the dead, and some of the bodies were burned — slayings that drew such outrage that the U.S. temporarily halted combat operations in the country.

Sgt. Bales was on his fourth deployment and may have been suffering from a traumatic brain injury, his lawyers argue. They have criticized the base at Camp Belambay, where Sgt. Bales was stationed, saying that Special Forces members there gave him banned substances including alcohol, Valium and steroids, and insist that by seeking the death penalty against Sgt. Bales, the Army is ignoring its own responsibility for sending him to war.

The judge, Col. Jeffrey Nance, said Thursday he will order that Sgt. Bales undergo an official review of his mental health, called a “sanity board,” after prosecutors argued that without doing so, Sgt. Bales should be barred from presenting any sort of mental-health defense to the charges.

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. Sgt. Bales‘ 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,” Maj. Robert Stelle wrote in a Jan. 3 motion obtained by The Associated Press.

Sgt. Bales‘ attorneys have said he may have suffered from a traumatic brain injury when he was knocked out by an improvised bomb explosion during one of his tours in Iraq. They thus far have 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.

However, in a reply to the government’s motion, Ms. Scanlan wrote Tuesday that Sgt. Bales will 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, she wrote.

That information should not be turned over to the government until Sgt. Bales‘ defense team actually gives notice of their intent to use a mental-health defense or to have an expert testify, Ms. Scanlan 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.

The judge said the conditions of the sanity board could be worked out later, but the review will be held.

Prosecutors also argued Thursday to set the trial quickly — for June 10 — because many witnesses remain in a volatile part of Afghanistan. Two possible witnesses already have 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.

Ms. Scanlan called that 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.

She noted that Sgt. Bales‘ case was formally referred to a court-martial just last month. For the last five U.S. courts-martial in which the death penalty was a possible punishment, the average elapsed time from date of referral to date of trial was one year and eight months, she wrote. Setting Sgt. Bales‘ trial for this June would be a record pace, she suggested, and would risk harming the quality of his legal defense.

The documents also show that Sgt. Bales‘ lawyers requested the appointment of a neuropsychologist to the defense team after a forensic psychiatrist who had already been appointed, Dr. Thomas Grieger, reported that he didn’t have the expertise to evaluate Sgt. Bales for traumatic brain injury. The Army refused, saying the defense hadn’t shown that such an appointment was necessary.

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