By GENE JOHNSON, Associated Press
SEATTLE (AP) — An Army staff sergeant accused of massacring Afghan civilians must undergo an official sanity review before a mental health defense can be presented, the military judge overseeing the case said Thursday.
Staff Sgt. Robert Bales deferred entering a plea Thursday at Joint Base Lewis-McChord to 16 counts of premeditated murder and other charges related to a nighttime attack on two villages last March. The Army is seeking the death penalty.
But the judge, Col. Jeffery Nance, took up arguments over whether Bales can present a mental health defense or testimony from mental health experts, given that he has not yet participated in a "sanity board" review.
The judge ordered that to take place, but made no decisions about the conditions for the review or what information from it would be turned over to prosecutors — something prosecutors and defense attorneys have been arguing about.
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.
Bales was serving his fourth deployment, and his lawyers said he may have suffered from a traumatic brain injury. His 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," prosecutor Maj. Robert Stelle wrote in a Jan. 3 motion obtained by The Associated Press.
Bales' attorneys have said a traumatic brain injury may have been sustained when he was knocked out by an improvised bomb explosion during one of his tours in Iraq.
One of those attorneys, John Henry Browne, said Thursday that the defense has obtained medical records from Madigan Army Medical Center in Washington state indicating Bales had suffered from TBI and PTSD, but he described those records as incomplete.
The attorneys have thus far 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.
"These are not independent doctors; they're doctors who work for the Army, and the Army is trying to kill my client," Browne said after the hearing. "If there's a tape recording, you know what people say."
However, Browne also said Bales might 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, they said.
To allow the sanity board to share the basic results of the examination — the "short form," with answers about his mental health diagnosis and mental state at time of the attack — would be to provide prosecutors with information based on compelled statements from the defendant. That could violate his right against self-incrimination under the Fifth Amendment to the Constitution, defense co-counsel Emma Scanlan told the judge.
The Army isn't entitled to such information unless the defense makes an issue of Bales' mental health at trial, which they haven't yet done, she 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 in a motion filed Tuesday.
The judge said he would rule later on the conditions of the sanity review and when the prosecutors could have access to the results.
Prosecutors said Bales, a father of two from Lake Tapps, Wash., had been drinking before he slipped away from his remote outpost in southern Afghanistan to attack the villages. Soldiers testified at a pretrial hearing in November that Bales returned to the base alone, soaked in blood, after the shootings.