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Sanity review set in Afghan attack

Military judge orders exam by neutral doctors

Army staff sergeant Robert Bales is accused in an attack on Afghan villagers.

Army staff sergeant Robert Bales is accused in an attack on Afghan villagers.

SEATTLE — An Army staff sergeant accused in a massacre of Afghan civilians must undergo an official sanity review before a mental health defense can be presented, the military judge in the case said Thursday.

Staff Sergeant Robert Bales deferred entering a plea Thursday at Joint Base Lewis-McChord to 16 counts of premeditated murder and other charges related to a nighttime attack on two villages last March. The Army is seeking the death penalty.

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But the judge, Colonel Jeffery Nance, took up arguments about whether Bales can present a mental health defense or testimony from mental health experts, given that he has not yet participated in a ‘‘sanity board’’ review.

The judge ordered that to take place, but made no decisions about the conditions of the review and what information from it would be revealed to prosecutors — which prosecutors and defense attorneys have been arguing about.

Such reviews are conducted by neutral doctors tasked with discerning a defendant’s mental state at the time of the crime and whether he is competent to stand trial.

Bales was serving his fourth deployment, and his lawyers said he may have suffered from a traumatic brain injury. His mental health has been expected to be a key part of the case.

‘‘An accused simply cannot be allowed to claim a lack of mental responsibility through the introduction of expert testimony from his own doctors, while at the same time leaving the government with no ability to overcome its burden of proof because its doctors have been precluded from conducting any examination of the very matters in dispute,’’ prosecutor Major Robert Stelle wrote in a Jan. 3 motion.

Bales’ attorneys have said a traumatic brain injury may have been sustained when he was knocked out by an improvised bomb explosion during one of his tours in Iraq.

They have so far refused to allow him take part in the sanity board because the Army would not let him have a lawyer present for the examination, would not record the examination, and would not appoint a neuropsychologist expert in traumatic brain injuries to the board.

‘‘These are not independent doctors; they’re doctors who work for the Army, and the Army is trying to kill my client,’’ defense lawyer John Henry Browne said after the hearing.

However, Browne also said Bales might participate — as long as only certain information about the results are forwarded to prosecutors. Prosecutors should promptly receive findings about his current competence, but nothing about his mental state at the time of the attack, they said.

To allow the sanity board to share the basic results of the exam — the ‘‘short form,’’ with answers about his mental health diagnosis and mental state at time of the attack — would be to provide prosecutors with information based on compelled statements from the defendant. That could violate his right against self-incrimination under the Fifth Amendment to the Constitution, a defense counsel, Emma Scanlan, told the judge.

The Army is not entitled to such data unless the defense makes an issue of Bales’ mental health at trial, which they have not yet done, she said.

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