Judge orders sanity review in Afghan massacre case
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.
Bales' lawyers have criticized the base at Camp Belambay where Bales was stationed, saying that Special Forces members there gave him banned substances including alcohol, Valium and steroids. They insist that by seeking the death penalty the Army is ignoring its own responsibility for sending him to war.
Prosecutors also argued Thursday for setting the trial quickly — for June 10 — because many witnesses remain in a volatile part of Afghanistan. Two possible witnesses have already been killed in separate and unrelated attacks, they noted, and as American troops withdraw, access to those witnesses is only going to get tougher and more dangerous.
"Simply stated, with each day that passes, the government's right to a fair trial is further jeopardized," they wrote in court filings.
Browne said the prosecutors neglected to mention one thing about the two witnesses who were killed: They were on a list of insurgents, and were actually killed by U.S. forces.
Scanlan said setting a trial this year is unrealistic, given how much time the defense team needs to review more than 30,000 pages of discovery materials, and find and interview witnesses — not to mention getting their own client to open up. The defense has suggested a May 2014 trial date.
"Without adequate time to develop the relationship of trust required for effective representation in a capital case, counsel may never learn or be able to present the most crucial facts about the accused, facts without which any possible understanding of his actions is impossible," she wrote.
The judge did not set a trial date, but did indicate that June was too soon.
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