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As Bales Faces 17 Murder Charges, ‘Prosecution Has its Challenges’

March 23, 2012 at 12:00 AM EST
Staff Sgt. Robert Bales faces 17 murder charges in connection with the Afghan massacre. Jeffrey Brown, Eugene Fidell of the National Institute of Military Justice and Lt. Col. Gary Solis discuss the difficulties that the defense and prosecution will face in a military trial with a defendant who could face the death penalty.
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JEFFREY BROWN: And we’re joined now by Eugene Fidell, president of the National Institute of Military Justice. He’s also a senior research scholar at Yale University Law School. And retired Lieutenant Col. Gary Solis was a lawyer in the Marine Corps, and now teaches at both Georgetown and George Washington University law schools.

Eugene Fidell, I will start with you.

First, were there any surprises for you today in these charges?

EUGENE FIDELL, president, National Institute of Military Justice: No, there really weren’t, aside from the slight change in the number of victims. This is what we had been led to believe, based the quite preliminary reports that had come out.

JEFFREY BROWN: Gary Solis, anything?

LT. COL. GARY SOLIS (RET.), Georgetown University: I would have expected a few more less significant charges just as fallback positions for the government if they lost their primary case.

JEFFREY BROWN: Let’s start looking at some of the challenges.

Gary Solis, you can start with the key challenges for the prosecution.

LT. COL. GARY SOLIS: The prosecution does have its challenges. They have to prove that someone is dead, and those people — those bodies have been buried and they’re not going to be exhumed.

They have to prove that they died by being shot way firearm, difficult to do when you don’t have a body and you haven’t had an autopsy. And they have to prove that Sgt. Bales did it. He was wearing a uniform. It was night, very dark night. He was wearing night-vision goggles that obscured his face. He had a helmet on.

It is going to be very difficult to find anybody who saw him who can testify as to the identity of the shooter. Also, premeditation will be difficult to prove if the defense raises a diminished capacity argument. And, finally, I think that negating a diminished capacity argument raised by three prior tours, traumatic brain injury and prior wounding will be difficult.

JEFFREY BROWN: All right, well, let’s hold off on the mental condition issues for the moment.

But, Eugene Fidell, what would you add? Would you add anything to the difficulties for the prosecution, particularly, of course, with all this being so far away?

EUGENE FIDELL: Yes, it’s a long distance away.

And I think the crime scene is probably pretty chaotic, more chaotic than most detectives in the U.S. would prefer. But whether evidence has been successfully gathered or still can be successfully gathered remains to be seen. I mean, it’s possible there may be exhumations, although I think that’s problematic under Islamic law.

And it’s possible that there may be eyewitnesses whose testimony will prove these charges without the necessity for exhumations or DNA evidence or some of the high-tech things that Professor Solis has referred to. I think this is going to be tough for the government, but I don’t think these are insuperable obstacles.

JEFFREY BROWN: All right, so, Eugene Fidell, you start us talking. We’ll take a look at the defense now. And clearly, what we hear is that they will be focusing on the mental state of Robert Bales with such issues as impact on memory loss, for example.

EUGENE FIDELL: Well, memory loss does not get you off the hook if there’s evidence of criminality. I mean, the question is what is the other evidence?

But, be that as it may, first of all, there is the insanity defense, which is provided for under the Uniform Code for Military Justice and the Manual for Courts-Martial. It’s a defense that the defense has to carry and has to carry by proof of clear and convincing evidence, and it has to be evidence of a severe mental disease or defect.

And I’m not a psychiatrist. I’m certainly not a forensic psychiatrist, but I still haven’t heard the kind of suggestions that indicate that that defense would be available. That’s not to say that there isn’t a benefit from being able to show that a person wasn’t playing with an entirely full deck at the time.

That might help to soften the blow and provide matter and extenuation and mitigation during the sentencing phase of the capital case.

JEFFREY BROWN: And, Gary Solis, so PTSD is not a defense in and of itself.

LT. COL. GARY SOLIS: Correct.

JEFFREY BROWN: But what kind of pieces of medical history would you expect to come out and what kind of impact?

LT. COL. GARY SOLIS: Well, presuming that there’s no insanity defense — and Browne has said that there will not be — then there would be a box into which, if I were defense counsel, I would put the fact that he has had traumatic brain injury, reportedly, that he has been wounded twice, that he has had three prior tours before this one, that he’s undergone a lot of stress in combat, and all of those things managed to combine to create diminished capacity, which, although not a defense, may be argued to the jury.

And if you have a sympathetic jury that accepts that, they may find that he wasn’t able to premeditate his crimes, which would lessen the punishment greatly.

JEFFREY BROWN: Now, what about this — we just heard at the end of our setup a sort of provocative statement by his attorney, saying, I’m not putting the war on trial, but the war is on trial.

Now, you want to start that, Gary Solis? What’s your reaction to that?

LT. COL. GARY SOLIS: Well, I think if he’s going to put the war on trial, that, inevitably, the Army must be put on trial. Why did the Army cent this gent back for a fourth tour? Why didn’t they be more careful in investigating his possible PTSD?

And so I think he says it, but I would expect that there will be an attack on the Army as well.

JEFFREY BROWN: Eugene Fidell, what — does it play some explicit role or is it more implicit in the background of all this?

EUGENE FIDELL: Gee, I — maybe it’s implicit in the background, but, gosh, that strikes me as a very tricky and hazardous defense strategy.

The narrative of this case hasn’t emerged yet. And if that’s the narrative, I — I wouldn’t want to endorse it. I think, you know, there’s an old saying, when life gives you lemons, make lemonade. But I would hope that the defense would have something more directly related to this immediate set of allegations than testing the war.

JEFFREY BROWN: You’re agreeing.

LT. COL. GARY SOLIS: I do agree. And I think the military judge is going to stop any attempt by the defense to put the government, the war, or the Army on trial, and he will direct them to stay with the facts.

JEFFREY BROWN: Just briefly looking at what happens next, we don’t know yet whether there would be — the government would be asking for the death penalty, right?

LT. COL. GARY SOLIS: We do not, not until the case is referred by the commanding general.

JEFFREY BROWN: And then what happens?

LT. COL. GARY SOLIS: Well, then, at some point, we’re going to have dueling psychiatrists. That is, there’s going to be psychiatric examinations down the line an Article 32 investigation, akin to a pretrial investigation. And the investigating officer will make a recommendation as to whether or not the case should go forward.

JEFFREY BROWN: And, Eugene Fidell, does history tell us that this process takes a while, a good while? How long?

EUGENE FIDELL: Well, I think the trial could begin — that is, the arraignment could take place later this year, maybe late this year, possibly early next year, because there’s going to be a lot of preliminary investigation that has to take place, both for the government and for the defense.

Now, if you ask me how long it will be before this case is over, including all the appeals and reviews, that has to be calculated in years, rather than months. So, I think everybody should — aside from not either convicting or acquitting Staff Sergeant Bales, you know, through commentary, everybody should relax for a while and wait until the evidence unfolds. And the first step in that process will be the Article 32 investigation.

JEFFREY BROWN: All right.

Eugene Fidell, Gary Solis, thank you both very much.