Media furor initially will shape trial of accused Afghan killer Robert Bales

Media furor over an army staff sergeant who allegedly murdered 17 Afghan civilians early this month may thwart justice for him and others accused of combat zone crimes, a defense lawyer specializing in military cases said last week.

Staff Sgt. Robert Bales, a 38-year-old platoon sergeant attached to Joint Base Lewis-McChord in Washington state, was stationed in Afghanistan’s Kandahar Province on March 11 when he reportedly entered a nearby village and shot nine Afghan children and eight adults.

Bales, who was charged under the Uniform Code of Military Justice with 17 counts of murder soon after the incident and shuttled to the Fort Leavenworth military prison in Kansas to await trial, faces the death penalty if convicted.

While military officials have been tight-lipped about the incident, details leaked by sources in the Defense Department have indicated that Bales was under stress from marital problems and the strain of previous deployments, which included instances of emotional and physical trauma. Media reports have probed into the soldier’s past, highlighting foreclosure woes and prior minor offenses, mostly alcohol-related, as evidence of precursor to the alleged heinous act. Most recently, Bales’s wife Kari has publicly defended her husband, telling national media outlets he loved children and couldn’t have done something so violent.

Dallas-based defense attorney Colby Vokey told HUMAN EVENTS Wednesday that, in spite of the damning public portrait of Bales and the events of March 11, it was crucial to remember that the details of the incident, first reported by Afghan officials, could change as an investigation is completed. Vokey has experience defending troops accused of war zone crimes, but he has no direct relation to the Bales case.

He recalled a 2005 incident in Haditha, Iraq, where descriptions of an execution-style killing of 24 Iraqi civilians at the hands of Marines were later contradicted as new evidence emerged. Of the eight Marines charged in the incident, only one, Staff Sgt. Frank Wuterich, was ultimately convicted, receiving a sentence for negligent dereliction of duty. Vokey, a Marine lieutenant colonel at the time, was assigned to defend Wuterich when his trial began.

“We don’t know with Bales, given what Bales was out there to do, what really happened,” Vokey said. “We don’t know if (reports are) accurate or not. That’s a big danger.”

 Another concern: possible attempts by senior leaders to isolate Bales as a bad seed to minimize tensions in the U.S.-Afghanistan relationship or downplay larger issues.

So far, the most direct response to the incident has come from the top U.S. commander in Afghanistan, Marine Corps Gen. John Allen, who told reporters Monday that he planned to look into the command climate of the 10-year soldier’s unit, to determine if leadership failings played a part in the incident.

If coming weeks do yield any troop directives or broader statements related to the shooting, the attorney said these could compromise the trial process for Bales, given the way military court proceedings are organized. Candidates for a panel of members, or jurors, are chosen by a trial’s convening officer, rather than selected at random.

“That’s always a concern, and when you have a case like this where it’s so publicized and so well known that the natural thing in the service is to present this as a leadership issue to prevent this in the future, and that word gets passed,” he said. “You can often get nothing but very senior officers and very senior enlisted sitting on a jury. There’s almost no way to separate that from what’s going on in the actual courtroom.””

Under the UCMJ system, a defendant does have the option to forgo the panel and receive a verdict and a sentence directly from the military judge.

Finally, for other troops facing similar charges, particularly those instances where civilian casualties may have occurred in the fog of war or due to a perceived threat, it may be more difficult than ever to get justice.

“We’ve got a couple of instances where these guys were really protecting themselves and now they’re facing court-martial,” said Heather Ellis, the executive director of United American Patriots, a nonprofit that helps to find and provide defense lawyers for troops in such a situation.

UAP has followed 18 murder cases since 1997, including those of the defendants in the Haditha shootings. In eight of those cases, the organization is currently supporting two troops awaiting Article 32 hearings on such charges, though Ellis declined to name them.

Ellis said the organization took no stance on Bales, since his alleged crime did not occur in the midst of combat. But she said she was aware of the prejudicial environment the incident might create for other defendants.

“Any time there’s a war crime, it’s an issue of some concern for us,” she said.

Bales has hired a high-profile civilian defense lawyer, John Henry Browne, and now awaits the first step of the military judicial process. The Article 32, or preliminary hearing on the case, will not take place for several months.