SEATTLE - The U.S. soldier charged in the shooting deaths of 17 Afghan villagers last month will not participate in an Army review aimed at determining his mental state, his attorney said Friday.
Staff Sgt. Robert Bales was expected to face what's called a "sanity board" examination by Army doctors from Walter Reed Army Medical Center, seeking to establish whether he's competent to stand trial and what his mental state was at the time of the March 11 pre-dawn massacre in two southern Afghanistan villages.
But his civilian lawyer, John Henry Browne, said Friday he instructed Bales to invoke his Fifth Amendment right to remain silent because the Army will not allow Bales to have an attorney at the sanity board review and will not allow the examination to be recorded. The Army also rejected his request to have a neuropsychologist on the board, Browne said.
"A member of the military does not give up constitutional rights by being in the military," Browne wrote in an email to reporters. "Since the defense will have no way to know questions asked or answers given, Sgt. Bales' civilian attorneys have instructed him to invoke his Fifth Amendment right to remain silent and NOT participate in the sanity board process, particularly since his Sixth Amendment right to counsel has been denied during the board process."
Maj. Chris Ophardt, a spokesman at Joint Base Lewis-McChord south of Seattle, said that typically, such examinations are not recorded and defendants do not have their lawyers present. Such proceedings are medical, not legal, he said.
"They want to make sure the board can ask the questions they need to ask to make a fair determination, without any outside influence," Ophardt said.
The sanity board had been expected to explore such issues as Bales' deployment history, including a concussion that Browne has said he suffered during one of his three prior deployments to Iraq, as well as any prescription medication he may have been taking and whether some sort of psychotic episode led to the shooting.
In most cases, the only information given to prosecutors following a sanity board review consists of a brief diagnosis and the answers to three yes-or-no questions: Was the defendant suffering from a mental disease at the time of the offense? Was the defendant able to appreciate the wrongness of his or her actions? Is the defendant currently suffering from a mental disease and thus unable to understand the legal proceedings?
The answers to those questions help prosecutors decide whether it's fair to have the defendant stand trial, Ophardt said. If the answers are mixed, investigating officers can seek more information about the defendant's mental state during a pretrial hearing or further psychiatric care for the defendant.
However, if a defendant raises a mental health-related defense, prosecutors can obtain more of the details of the sanity board review, including any clinical interviews with the defendant.
It wasn't immediately clear if the sanity board would proceed without Bales' cooperation.
Bales, 38, a father of two from Lake Tapps, Wash., is accused of walking off the base where he was deployed in southern Afghanistan with a 9 mm pistol and M-4 rifle outfitted with a grenade launcher. Officials say he walked to two local villages, where he killed four men, four women, two boys and seven girls, and then burned some of their bodies.
Dan Conway, a former Marine who is now an experienced civilian military defense lawyer, said that while it may not be typical for the Army to record or allow a lawyer to attend sanity board reviews, it's "perfectly reasonable, especially in a case of this magnitude."
"You want to be very cautious in allowing a client to be subject to that sort of clinical interview," Conway said. "It's his client sitting alone with a bunch of doctors. You don't want the doctors taking on the role of investigators."
If Bales continues to refuse to participate in the sanity board, a judge could possibly bar him from relying on a mental-health defense at his court martial, Conway suggested.
Browne also said Friday that one of the Army lawyers assigned to the defense team, Maj. Thomas Hurley, stepped aside in what Browne described as a mutual decision. The pair had disagreed about certain aspects of the defense strategy, and, Browne said, Hurley ultimately leaked an email from Browne to a news agency.
The Army confirmed that Hurley was no longer on the defense team, but declined to say why. Capt. Anthony Osborne remains on the defense team.