SEATTLE (AP) — A team of Army prosecutors can stay on for the sentencing of the U.S. soldier convicted of a massacre in Afghanistan, even after they read documents they weren’t supposed to, a military judge said Wednesday.
Lawyers for Staff Sgt. Robert Bales, who pleaded guilty to killing 16 Afghan civilians during nighttime raids last year, asked the judge, Col. Jeffery Nance, on Tuesday to dismiss the prosecutors because they had read compelled statements their client gave to Army doctors.
In a brief email Wednesday morning, Nance denied the motion, one of the defense attorneys, John Henry Browne, told The Associated Press. The email offered no reasons for the decision, Browne said.
The issue arose last month after Nance inadvertently sent the prosecutors a six-page, un-redacted document that included statements Bales made to Army psychiatrists. Bales was required to participate in the “sanity review,” aimed at determining whether he was sane at the time of the attacks and whether he was capable of standing trial.
It isn’t clear what the statements concerned, but they are protected by Bales’ right under Fifth Amendment of the Constitution not to incriminate himself, and neither they nor any information derived from them can be used against him during his sentencing.
Because of the difficulty in figuring out whether arguments by prosecutors or testimony by witnesses might have been informed by the protected statements, Bales’ defense team suggested removing the prosecution team from the case and appointing new prosecutors who would have no knowledge of their contents.
That would almost certainly have required the sentencing to be delayed. Bales faces life in prison either with or without the possibility of parole.
During Tuesday’s hearing at Joint Base Lewis-McChord south of Seattle, three substitute prosecutors argued that removing the trial team would be too drastic. Instead, they suggested measures to help ensure that the protected statements don’t make their way into court.
“The Constitution prohibits the use of statements,” said Capt. Chad Fisher. “It doesn’t prohibit disclosure.”
Among the safety measures, he said, was that the government gave the judge a DVD containing the prosecution’s entire case as it existed on July 17 — one day before prosecutors received the compelled statements — along with summaries of what each government witness would testify about at sentencing. If the witnesses or the government vary from those statements, the judge could require the prosecutors to prove that none of the information presented was based on anything Bales told doctors, Fisher said.
Browne said the judge’s ruling would probably require a special hearing to determine whether any of the evidence presented at the sentencing originated from the protected statements.
“The judge is making this unnecessarily complicated,” Browne said.
Bales, an Ohio native and married father of two young children who was on his fourth combat deployment, admitted leaving his post in Kandahar Province before dawn on March 11, 2012, to attack two villages of mud-walled compounds nearby. He pleaded guilty in June in a deal to avoid the death penalty.
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