Update: Browne likely to seek "diminished capacity" defense for Bales; also, the sergeant was found liable for part of a $1.4 million fraud judgment issued before he joined the Army. After the jump.
Having riled military officials with his media tactics even before he's seen his client, Seattle attorney John Henry Browne flew off to Kansas yesterday where today he tells us he'll finally meet Staff Sgt. Robert Bales of Joint Base Lewis McChord, arrested for murdering 16 villagers in Afghanistan. Bales is now in a Fort Leavenworth military prison, where one of his cellmates is Sgt. John M. Russell, who was under JBLM command when arrested in 2009 for the mass murder of fellow troops in Iraq.
"The government is pissed at me, as usual," says Browne, 65, in an e-mail, referring to Pentagon officials. As a defense attorney - his clients included serial killer Ted Bundy and Chinatown mass murderer Benjamin Ng - he regularly faced off against government prosecutors and used the media to aid his client's defense.
The Bales case comes just as Browne was winding up a book about about his almost five decades as a high-profile attorney. But he's put it aside now to concentrate on the sergeant's defense in what may be a history-making war crimes trial. The "book is pretty much done, [with] lots of interest because of this case," Browne says, "but it would be way tacky of me to push it now in the face of this tragedy."
Browne, aided by Army attorney Maj. Thomas Hurley and Browne associate Emma Scanlan, indicates he plans to tone down his media appearances which he felt were necessary last week to counter Pentagon claims about his client - who, aware of Browne's reputation, sought his counsel shortly after being taken into custody in Afghanistan.
In press conferences and TV appearances, Brown disputed reports that Bales' marriage was in trouble and that alcohol fueled the massacre. He called the case "more political than legal" and felt that reports were painting Bales as a "rogue solider rather than focus[ing] on how we're treating our GI's in general and whether we should be over there to begin with."
In part, Browne was countering comments such as those by Defense Sect. Leon Panetta who called the killings a "criminal act" and when asked if Bales confessed, said, "I suspect that that was the case." Jack Zimmermann, co-chair of the Military Law Committee of the National Association of Criminal Defense Lawyers, told the New York Times that "Unfortunately, people in the secretary of defense's position are caught between the political requirement to make some kind of statement and the danger of what we call unlawful command influence. Somebody should tell him to shut up."
In a more tempered prepared statement released Saturday, Browne noted that "It is too early to determine what factors may have played into this incident and the defense team looks forward to reviewing the evidence," including going over Bales' personnel and medical records.
The team is thought to be preparing an insanity defense, one that could take much longer to play out than President Obama's scheduled 2014 combat-troop pullout from Afghanistan.
Bales has yet to be officially charged, but could face execution. That ultimately would require the approval of Obama if he's still in office. An insanity defense - a total mental meltdown - seems the only logical legal strategy to the sergeant's alleged actions, entering darkened village homes in the Panjwai District of Kandahar on 3/11 and shooting the 16 victims, most of them women and children.
The case leaves the Army facing two post-9/11 wartime massacre trials at a base that just wrapped up its first, the murdering of Afghan civilians by its Stryker "kill team."
The other Lewis-McChord case, of Sgt.Russell, 46, has dragged on for three years so far, and offers some parallels to Bales' case, including a likely insanity defense.
Russell is housed near the newly arrived Bales in the Midwest Joint Regional Correctional Facility, a 464-bed prison at Fort Leavenworth (one of four federal, military and state prisons in the neighborhood). It has a special unit for soldiers awaiting trial - Wikileaks scandal figure Bradley Manning among them.
Accused of killing five fellow service members in Iraq in 2009, Russell is alleged to have committed the worst U.S. soldier-on-soldier violence in that war. He was assigned to an engineering unit under Fort Lewis command when he went from suicidal to homicidal in a matter of hours after being refused help by military doctors.
Col. James Pohl, chief judge of the Guantanamo Bay war crimes court and investigating officer into the Ford Hood massacre by Major Nidal Malik Hasan, concluded that Russell has an "undisputed mental disease or defect" that makes "the death penalty inappropriate in this case."
Still, post-traumatic stress disorder and other complications are harder to prove under military law. And Russell's breakdown was well documented in both his medical records and his actions that day. Bales' team - to show he suffered a mental "snap" similar to Russell's - will have to assemble his defense from what on the surface is mostly anecdotal evidence.
News media interviews with friends, fellow soldiers and the Bales' family Lake Tapps neighbors tend to depict the sergeant as a likeable and courageous warrior whose sudden and uncontrollable slaughter of humans can't be explained by anything other than a wave of insanity.
Bales, 38, an Army sniper, was on his fourth war deployment in the Iraq/Afghanistan war zones. Having joined the service a month after 9/11, he was wounded in action and lost part of a foot; he also suffered a traumatic brain injury. Most recently he saw some of the bloodiest fighting in his decade-long military career, Browne said in interviews last week.
The sergeant, according to the New York Times, was particularly upset about being sent to Afghanistan, based on what his wife wrote last year on her blog, and the family had hoped to be stationed in Germany, Italy or Hawaii instead.
So far, the Times notes, Bales' life, "including a history of war injuries, financial pressures, disappointment about being passed over for promotion, brushes with law enforcement and a wife who went through pregnancy and years of parenting alone - matches that of many other American soldiers and Marines."
Browne and team apparently feel their client is the exception - one of the comparatively few who has cracked under the strain and resorted to mass violence. They'll have to explain the inexplicable with belief in the unbelievable. Apparently you start with "more political than legal," and go from there.
Update: After his meeting with Bales, Browne told CBS the sergeant had no memory of the shooting and that his likely defense would be diminished capacity - an emotional breakdown.
Also, the Washington Post reports that Bales's decision to join the Army came at a pivotal point in his pre-military career as a stock trader, which appears to have ended months after he was accused of engaging in financial fraud. He and his firm were ordered to pay $1.4 million to an elderly client in Ohio, but the client says he was never paid.