Thursday, March 22, 2012

Will a combat stress defense work for Robert Bales in the Kandahar massacre?

Megan McCloskey in an analysis for Stars and Stripes reports, Combat stress rarely successful as defense for serious crimes in military 03/21/2012:

Combat stress has rarely been successful in the military as a defense against the most serious crimes. And in murder cases, no servicemember has ever been found not guilty by reason of insanity in the military justice system, experts say.

In the last few years, post-traumatic stress disorder has become more common as a defense in military courts, but the argument is most effective in reducing penalties during the sentencing phase of the trial, not in avoiding guilt.

PTSD "doesn’t usually get you that far," said Phil Cave, a retired Navy lawyer who has been practicing in the military system for more than 30 years.

Army Staff Sgt. Robert Bales has yet to be charged in the March 11 incident, in which 16 Afghans, including nine children, were shot in their homes in Kandahar. Military investigators are still gathering evidence in the case, officials have said. [my emphasis]
He also quotes one of the many people we are hearing offering speculation on the shooter's state of mind:

Prominent PTSD expert Jonathan Shay is unconvinced that PTSD eliminates criminal responsibility. For years, he has turned down requests to testify as an expert witness in the guilt phase of a trial.

But Shay, who was a psychiatrist at the Department of Veterans Affairs for decades, said he has become more open to the idea that a PTSD-driven psychotic episode could reduce someone’s culpability for a crime.

Nevertheless, Shay said, the details about the Kandahar killings that have emerged, indicating that the shooter methodically went house to house and then returned to his base to surrender, do not add up to evidence of a psychotic break.

"This slaughter in Kandahar, to the extent that the facts have emerged, just does not compute at all in that regard," Shay said.
We've seen little speculation on what the victims' state of mind may have been as they were about to be murdered. And in most stories, we don't see any of their names.

McCloskey notes in the closing paragraph:

Should an argument of diminished capacity be successful in Bales’ case, it would be significant for sentencing. Premeditated murder in the military justice system carries a mandatory minimum of life in prison without parole. Should Bales be convicted of a lesser murder charge, Culp said, there would be leeway in sentencing that could allow Bales to be eligible for parole in 10 years.
A current AP report says that the Pentagon is now putting the number of the Kandahar victims at 17.

Qais Azimy provides the names of the dead and wounded in the massacre in No one asked their names by Aljazeera English 03/19/2012. One of the dead was named Payendo.

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