Staff Sergeant Bales Charged with Murder

BY JULIE DAHLGARD — On Friday, March 23, Staff Sergeant Robert Bales was charged with 17 counts of murder. The former stockbroker was inspired to join the military after the attacks of September 11, 2001. On March 11, Bales allegedly left his Kandahar province outpost and murdered 17 Afghan citizens, including women and children. Washington Post Bales is now detained at the Fort Leavenworth maximum security prison.

The father of two from Washington state will be tried in a military court under the Uniform Code of Military Justice (UCMJ). A military court is different than a civilian criminal court.  “The ‘preferral’ of charges is the first move in a military prosecution, akin to an indictment in a civilian court. The next public step would be a preliminary investigation known as an Article 32 hearing. It’s the equivalent of a grand jury in a civilian federal case, except that the defense can participate and it’s held in the open.” Businessweek. “In civilian courts, a jury of the defendants’ peers is chosen randomly from the population, subject to vetting by the prosecution and the defense. Military jurors, known as ‘court members,’ are selected by the military ‘convening authority,’ which is often the base commander or a higher officer …” Businessweek.  In a military court, the punishment for murder could range from life in prison with a chance of parole to a death sentence. A guilty plea in a military death penalty case is not allowed and a sentence to death must be unanimous.

“American service members are not subject to the Afghan criminal justice system, under a longstanding ‘status of forces agreement’ between the United States and the Afghan government.” New York Times. Although the military courts are asserting jurisdiction in the matter, the Afghan people also have a stake in the outcome and want “swift” and “transparent” justice. The Afghans may see the closed culture of the military as thwarting justice from historical incidents and because information about the identity of Bales was initially withheld.

For a case that many agree will be highly complex, Bales has already been given three military lawyers and two civilian lawyers. Additionally, his wife has set up a legal defense fund. A lot of speculation surrounds the case.  First, the case may not be tried for a long time, even years. Second, was Bales drinking that night, what can he remember, and how will the deaths be proven as murders without autopsies?

Third, in his defense, Bales may assert a defense that he was insane or unable to act competently. Military courts allow a defense of lack of mental responsibility, akin to a defense of insanity.   However, this defense is usually unsuccessful in military courts.  “Eugene Fidell, who teaches military law at Yale Law School, said in an interview that he “can’t find any case in which a person has been acquitted by reason of insanity with respect to PTSD.’ Businessweek

There have been no cases of acquittal on the insanity defense of PTSD perhaps because the jury is made up of military officers or because the combat environment is tightly supervised.  It appears that the jurors and the military environment effectively impose a higher standard to prove insanity than a defendant would face in a civilian criminal court. 

It is unknown if Bales suffered from Post-Traumatic Stress Disorder (PTSD), but it is reported he suffered head trauma in one of his previous three tours of duty.   “Mental health professionals say it’s reasonable to consider PTSD but it was likely not the sole factor that sent the 38-year-old father from Washington state over the edge. Still, there is much that is not known about the psychological wounds of war and how they can manifest themselves, and even less is known about the impact of multiple deployments.” Huffington Post.  A military health professional can make a recommendation, but there is no policy to not redeploy troops diagnosed with PTSD.  

A controversial test the Army uses to detect traumatic brain injuries (TBI) may or may not have been used to determine if Bales was fit for duty.   Scientists are researching brain injuries from single or repeated head trauma and if these injuries can cause unstable behavior.  Unfortunately, evidence of brain injury is only detectable in an autopsy.  

Another question is if PTSD can also cause instability or violent behavior or is magnified by a traumatic brain injury. The limited understanding of the effects of PTSD and TBI may hinder Bales’s defense.

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