SSG Bales – CAAFlog

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This morning the Supreme Court denied certiorari in Bales v. United States, No. 17-1583 (CAAFlog news page).

In 2013, Army Staff Sergeant (SSG) Robert Bales pleaded guilty to the 2012 murder of 16 Afghan civilians. The case had been referred capital, and Bales’ plea avoided the possibility of the death sentence. A panel of members sentenced Bales to the maximum possible punishment of life without the possibility of parole. Our coverage of the case is available here.

The Army CCA affirmed the findings and the sentence in an opinion issued last September (link to slip op.). CAAF granted review and summarily affirmed on Feb. 15, 2018. Now Bales seeks certiorari. The petition is available here. The questions presented are:

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose exculpatory medical evidence in the government’s possession relating to the accused’s state-of-mind to commit 16 homicides where the United States ordered the accused to take mefloquine, a drug known by the U.S. Food and Drug Administration and the U.S. Military to cause long-lasting adverse psychiatric effects, including symptoms of psychosis that may occur years after use.

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose mitigating impeachment evidence in the government’s possession that Afghan sentencing witnesses flown into the United States left their fingerprints on bombs and improvised explosive devices, especially where the prosecution held the Afghan witnesses out to the jury as innocent “farmers.”

Army Staff Sergeant (SSG) Robert Bales pleaded guilty at a general court-martial in 2013 to the murder of 16 Afghan civilians in 2012. The case had been referred capital, and his plea avoided the possibility of the death sentence. Bales received the maximum possible sentence of life without the possibility of parole.

In 2015, GQ magazine published this story about Bales based largely on post-conviction interviews of Bales that, according to the story, Bales hopes “will humanize him, and he hopes that one day in the hard-to-imagine future, as the wars fade from memory, someone will deem his sentence to be excessive, take mercy on him, and grant him a measure of clemency.”

The Army CCA will hear oral argument in Bales appeal tomorrow. Two issues are before the court:

I. [Whether Bales] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. [Whether] the military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

Both of these issues look to be wholly focused on Bales’ sentence, and neither appear to challenge his plea. The second issue probably involves the military judge’s erroneous disclosure of an unredacted copy of Bales’ R.C.M. 706 (sanity board) evaluation to the prosecution (noted here).

The first issue may also include a challenge to the safety of the widely-used anti-malaria drug mefloquine. According to this Seattle Times report published last week:

Defense attorneys are expected to argue that while on a 2003-2004 tour in Iraq, and possibly in Afghanistan in 2012, Bales took the antimalarial drug mefloquine, according to John Henry Browne, a Seattle attorney who has assisted in the soldier’s defense.

In July 2013, the FDA issued its strictest warning about mefloquine, noting the potential for long-term neurological damage and serious psychiatric side effects. The defense team did not raise Bales’ possible use of the drug during sentencing proceedings the next month.

Defense attorneys now hope the drug issue can persuade a three-judge panel to lessen his sentence.

In last Friday’s news, I noted that Senator Gillibrand announced that her “Military Justice Improvement Act” legislation would come to the Senate floor for a vote this week. And earlier this week Sam discussed a competing proposal from Senator McCaskill. But it seems that Senator Gillibrand’s announcement was premature. The legislation doesn’t appear among the Senate’s votes from this week, and the Senate will meet only in pro forma sessions from now until the afternoon of Monday, February 24 (according to a unanimous consent reached during Wednesday’s session).

Sergeant Hutchins has been arraigned, trial is set for August, and the military judge denied Hutchins’ motion for him to recuse himself, according to this NBC San Diego story from Thursday that includes the following:

Hutchins claims that the judge and the defense attorney appointed for him cannot fairly participate in his case because they are unduly influenced by the Secretary of the Navy, who has publicly commented about Hutchins’ guilt.

In an interview after today’s hearing, Hutchins told reporters that any judge or defense attorney appointed by the Defense Service Organization is compromised because “they don’t want to go against the Secretary of the Navy.”

In the Naval Academy football players’ case, an Associated Press story details a major hurdle for the prosecution:

The judge, Col. Daniel Daugherty, asked prosecutors to tell to him how they plan to prove their theory of the case against Joshua Tate of Nashville, Tenn., who has been charged with aggravated sexual assault and lying to investigators. Prosecutors will respond in writing by the end of the week. Daugherty suggested he would then rule at some point next week on a motion by Tate’s lawyers that he dismiss the case for lack of evidence.

Various media outlets are closing in on command investigations addressing some of the circumstances surrounding Staff Sergeant Bales’ massacre of 16 Afghan civilians (for which he was sentenced to confinement for life without the possibility of parole after pleading guilty):

After Bales’ court-martial, The News Tribune and KUOW submitted FOIA requests to the Army seeking what is known as a command climate investigation. The Army carried out that inquiry to assess whether senior soldiers around Bales could have prevented the crimes.

Finally, a sexual assault case that Air Force Lieutenant General Franklin dismissed after an Article 32 investigation, leading his superiors to remove the General from the case, is now being re-investigated:

Wright faced an Article 32 last year to determine if there was enough evidence to proceed to court martial. But Third Air Force commander Lt. Gen. Craig Franklin elected in August to drop the charges, while refusing the alleged victim’s request to meet with him.

The unusual do-over that began Tuesday at Joint Base Andrews was ordered by top Air Force officials concerned with decision-making by Franklin. The general, who announced he would retire last week, became a lightning rod for criticism of the military’s handling of sex crimes after he overturned the sexual assault conviction of a fighter pilot last February.

His decision was a key rallying point for legislators, victim’s advocates and others who want to change the Uniform Code of Military Justice to strip military commanders of control over prosecutions. The Pentagon and the service branches, however, have argued such a move would hurt military order and discipline.

Outside the hearing this week, the accuser’s special victims counsel — an Air Force attorney who works specifically for the victim’s interests, rather than for the prosecution or defense — said the previous Article 32 was biased against the woman, and featured badgering questioning from the investigating officer.

Various news organizations are reporting on new data about reports of sexual assault in the DoD. For example, in this New York Times story (link fixed):

There were 3,553 sexual assault complaints reported to the Defense Department in the first three quarters of the fiscal year, from October 2012 through June, a nearly 50 percent increase over the same period a year earlier. Defense Department officials said the numbers had continued to rise.

The numbers included sexual assaults by civilians on service members and by service members on civilians. Sexual assault was defined in the report as rape, sodomy and other unwanted sexual contact, including touching of private body parts. It did not include sexual harassment, which is handled by another office in the military.

I haven’t been able to identify the specific report that is quoted.

ABC News reports that the sexual assault trials of the two USNA midshipmen have been set for January and February of next year.

Stars and Stripes has this Associated Press report on the case of Army Staff Sergeant Bales, who pleaded guilty to killing 16 Afghan civilians and was sentenced to confinement for life without the possibility of parole:

Lt. Col. Jay Morse, the lead prosecutor, told The Associated Press in an interview Thursday that the case faced significant hurdles, from limited access to the crime scene to a drawdown of American troops from Afghanistan, which made a quick resolution ideal.

Still, to a prosecutor whose goal was to try to satisfy Bales’ victims, their reaction was difficult, but understandable.

“I don’t think they were completely satisfied,” Morse said. “I don’t know that they would have been completely satisfied without literally seeing Sgt. Bales executed.”

And this Air Force news story details the dramatic reenactment of a sexual assault court-martial at Spandgahlem Air Base in Germany:

After standing for the arrival of the judge, here played by Staff Sgt. Debraca Williams, 52nd Fighter Wing Judge Advocate civil law paralegal from Lawton, Okla., the Airmen watched as the prosecution and defense counsel presented their arguments over the case, based on an actual case.

In the interest of conserving manpower while maintaining the proceeding’s judicial ambiance, the legal staff ran a video dramatization of a female Airman, role-playing as the victim, being cross-examined by both sides all while in front of the alleged perpetrator.

Some attendees displayed visual discomfort as the victim recollected the events of the night in question in unfiltered realism, using words like “ejaculation” and describing how unclean she felt even after showering.

To counter, the defense pressed the victim on the circumstances leading up to and after the event. The excessive consumption of alcohol and any undefined shades between a romantic relationship and being “just friends” generated quiet discussion among the spectators.

The story does not reveal the “verdict.”

Life without parole is the sentence for the Army Staff Sergeant who pleaded guilty to killing 16 Afghan civilians, AP via WaPo, here, Tacoma News-Tribune, here.

The military judge in the Bales case mistakenly gave the trial counsel the unredacted 706 Board results for Staff Sergeant Bales, who then read the report. The defense now wants the TCs removed from the case. Tacoma News-Tribune coverage here. H/t SC

Judge Lind following CAAF’s guidance and using a scalpel rather than a sledge hammer to close hearings during the Manning sentencing phase. See Courthouse News here and the Baltimore Sun here.

Major Nidal Hasan announced that he was the shooter in the Ft. Hood shootings as he defends himself in his capital court-martial at Ft. Hood. AP via the Dallas Morning News here and the LA Times here.

Air Force Lieutenant Colonel Jeffrey Krusinski, who was once chief of the Air Force SAPR program, isn’t charged with sexual assault after all. Reuters has the story here:

“After a closer investigation of the facts and a review of the status of the case law, the more appropriate charge is the assault and battery, not the sexual battery charge,” Theo Stamos, the prosecutor, told Reuters. She declined to comment about the evidence in the case.

According to this Marine Corps Times story, “The Navy and Marine Corps will soon publicize a running list of court-martial verdicts for all offenses on their official homepages, in an effort to add accountability for the crimes. They are stopping short, however, of actually posting offender names.”

For those who remember last year’s recurrent firings of Navy skippers, the practice seems to be contagious across the Department. The Marine Corps Times reports about the firing of a 22d MEU commander in this report, which notes that:

At least six other Marine officers have been removed from command since mid-March. In each case, Marine officials have provided little explanation for why the decisions were made, saying a general officer had lost confidence in that commander’s ability to lead his personnel.

Stars and Stripes reports on CAAF’s denial of the Government petition for reconsideration in Hutchins, and Sergeant Hutchins’ anticipated release from confinement today.

And Stars and Stripes also reports that “Staff Sgt. Robert Bales, guilty of murdering 16 Afghan civilians, used a controversial malaria drug linked to paranoia, hallucinations and psychosis while serving in Iraq, according to his lawyer.” We’re reminded of the “unspecified mental disorder” discussed in the Bales case, that brought it into the #4 Military Justice Story of 2012.

McClatchy reporter Michael Doyle covers the ongoing inquiry into military judge LtCol Palmer (part of the #8 story of 2012).

Members selection is underway in the Sinclair case. Details in this New York Times story.

And Fox News reports that key conservative legislators are joining efforts to limit or remove the commander’s prosecutorial discretion in courts-martial.

Here is SCOTUSBlog’s take on the Behenna cert. petition, which we’ll know the results on shortly.  H/t DHS

It appears that in exchange for removing the possibility of a death sentence, SSGT Robert Bales is going to plead guilty to at least some of the charges related to the killing of civilians outside a US base in Afghanistan. Seattle Times report here and Reuters report here. Bales will reportedly plead guilty next Wednesday to premeditated murder charges and face a September sentencing hearing that will decide whether he will be eligible for parole.

And more news here on MAJ Nidal Hasan’s request to represent himself in his court-martial via the Killeen Daily Herald, here.

Bales Arraignment Tomorrow

Here is a link to the TN-T story on the SSGT Robert Bales arraignment tomorrow.  Additional coverage from Army Time here reporting that the capital court-martial for the alleged premeditated murder of 16 Afghan civilians may hear arguments on motions to prohibit SSGT Bales from presenting mental health evidence because Bales’ c0unsel has refused to allow him to submit to an RCM 706 mental health board.  From Army Times:

[Bales’ defense counsel John Henry] Browne also said the judge has told attorneys on both sides to be ready to argue about whether the defense will be allowed to present any sort of mental-health defense, given that Bales has refused to participate in a “sanity board,” an Army review aimed at determining his mental state.

Browne had objected to the conditions for the sanity board, saying the Army would not let Bales have an attorney present and would not record the examination.

“The judge is trying to get us to deal with critical motions at the arraignment,” Browne said. “We need to slow this railroad down.”

Marine Court-Martial For Corpse Incident

Here is a Yahoo news story on proceedings in the court-martial of SSgt Edward Deptola.

Staff Sgt. Edward W. Deptola is accused of the desecration of remains and posing for unofficial photographs with human casualties. He also is accused of failing to properly supervise junior Marines and not reporting the misconduct.

Deptola and another Marine based at Camp LeJeune, N.C., were charged last year after video surfaced showing four Marines in full combat gear urinating on the bodies of three dead Afghans in July 2011. In the video, one of the Marines looked down at the bodies and quipped, “Have a good day, buddy.”

Staff Sgt. Joseph W. Chamblin pleaded guilty to similar charges last month. Chamblin was sentenced to 30 days confinement, reduced in rank, fined and ordered to forfeit part of his pay for six months. Three other Marines were given administrative punishments for their roles in the matter.

Bales Capital Referral
Many more reports on the Bales capital referral. Here (Reuters) and here (NPR Blog) are a few. The Reuters story has a quote from the defense counsel taking issue with the capital referral because their client has an “unspecified” mental health issue. This could be a result of the reporting, but if the mental health issue is unspecified how could the CA rely on that to avoid referring crimes that appear to the rest of us to be capital offenses? Here is a link to the charge sheet and CA announcement.

Sinclair Referral
The happiest guy on the planet about the Bales referral has got to be General Sinclair, whose own referral dropped to page 3 as a result of the Bales case. Here is some additional coverage at Navy Times.

Hits Keep on Coming in Sexual Assault Stats for Academies
AP reports (via Navy Times) here that a recent DoD report shows reported sexual assaults at the nation’s service academies up by 23% in 2012. Whether that is because of more reporting or more assaults is not known. The AP story says that most of the reports were the confidential variety that did not result in law enforcement action.

Here is the AP story via WaPo.  H/t GGH

Bales Case Analysis
AP (via Yahoo News), here, puts the SSGT Bales court-martial in the context of other war time murders allegedly perpetrated by US servicemembers. Coverage from yesterday’s hearing here (local) and here (CBS News).

General Allen Ensnared in Petraeus Investigation
Marine General John Allen, commander of ISAF forces in Afghanistan, and currently pending nomination as the SAC, is under investigation by the FBI and DoD IG reports CNN and others, here and here (WSJ).

Bales Art. 32 Continues with Defense Witnesses
Defense witnesses testified yesterday about their opinion of SSGT Robert Bales, NYT coverage here.  Additional coverage of the Afghan witnesses that testified from theTN-T (here).

Sinclair Hearing Continues with Reports of Nude Photos
Here and here are the coverage from Larry Flint. Okay, actually it is the always reliable Fayetteville Observer. But I won’t be surprised if Flint, Skinemax, or some other organization tried to make a movie out of this one.

Are all Military Members Immune from Torture Suits by US Citizens for Torture Overseas?
Maybe says the dissent in a 7th Circuit en banc case reports Reuters here. In an 8-3 decision the 7th Circuit sided with the USG (and 4th and DC Circuits) in finding that various high ranking officials could not be sued by two US private security contractor employees allegedly tortured in Iraq by US military personnel after they allegedly reported misconduct occurring in Iraq. Seventh Circuit decision here (h/t Lawfare).

PFC Manning Offers Partial Plea
Here is a CNET report on the hearing in the wiki[shhh] case. According to CNET Manning’s attorney discussed a potential partial plea offer. Additional coverage from the AP (via Baltimore Sun) here.  Mannings’s attorney has this to say on his website, noting that the plea is a naked plea without the benefit of a pre-trial agreement.

SGT Hurst Testifies in His Own Defense in PVT Chen Suicide Related Court-Martial

Here is the report from the Fayetteville Observer in the Hurst court-martial yesterday.  Hurst denied knowledge of many of the acts characterized as hazing by the prosecution.

The publisher of the Manual for Courts-Martial won’t change, see coverage here.

Charges are dismissed in the case of SGT Jeffrey Hurst, who is facing a court-martial related to the death of PVT Danny Chen. Coverage from the Ft. Bragg Patch here.

Much news on the continuing SSGT Robert Bales Art. 32, here (TN-T FOB Tacoma Blog), here (AP via St. Louis P-D), and here (Seattle Times) to link a few.

Continuing coverage of the BGEN Sinclair Art. 32 and testimony of his accuser fro AP (via WaPo) here.

The San Francisco Chronicle has coverage (here) of the Art. 32 for an AF Academy cadet accused of “sodomy,attempted sodomy and aggravated sexual conduct.” The Chronicle reports that “Daniels [a Cadet Second Class (junior)] is one of at least five cadets charged with sexual misconduct this year. One was convicted and sentenced to prison and another had charges dropped. The other three cases are still in the military court.”

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