Outstanding Questions on the Afghan Massacre Case

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Army photo / Spc. Ryan Hallock

Staff Sgt. Robert Bales in 2011.

Army Staff Sergeant Robert Bales, charged with murdering 16 Afghan civilians in a nighttime raid last year, is back into the news. Last week, he declined to enter a plea in a case where he could face the death penalty. The judge ordered a review of his sanity before his legal team can present any sort of mental-health defense.

Of interest are several items.

One is that the defense attorney is apparently refusing a “sanity board,” also known as a “706 board.”

A sanity board is an forensic examination by psychiatrists and psychologists to ascertain if:

— there is a psychiatric diagnosis;
— the defendant is competent to stand trial;
— and if he is criminally responsible.

There are similar processes in the civilian world, especially when someone has a mental illness. In military law, this examination needs to be done if the mental state of the accused is brought into the trial.

So I am curious as to why the defense has refused it. They can also have civilian experts examine SSG Bales. In many past trials involving questions about competency and criminal responsibility, there have been battles of the experts (Bales’ lawyers have said they are declining so far because the Army would not permit Bales to have a lawyer present for the exam, would not record the exam, and would not appoint an expert in traumatic brain injuries to the board).

Another question is whether he had been treated with Mefloquine (lariam). When I suggested that last year, it received a fair amount of attention.

However, there has been little discussion about that since. The talk from his lawyer (at least as reported on NPR) is about whether his mental state was affected by PTSD (post-traumatic stress disorder), a TBI (traumatic brain injury), steroid use, and/or alcohol.

This public conversation implies that he was not receiving that anti-malarial medication mefloquine. However, I am still waiting for confirmation one way or another. Mefloquine can be detected in the blood for several months; why do we not know one way or another?

Another issue on the stand will likely be intoxication. Intoxication is not a defense under military law. If SSG Bales ingested alcohol or steroids, it would have been under his own volition. However it could play into whether he had “specific intent” vs. “general intent.”

“Specific intent” implies he meant to kill the Afghan villagers. “General intent” lacks that element. That can make a big difference on sentencing.

If he had taken mefloquine, and his mental state was further affected by alcohol and steroids, that could also lead to a defense of pathological intoxication. Essentially, pathological intoxication means that a little bit of alcohol interacted with the body and/or other medications in unexpected ways, and can be used as a defense or on sentencing.

The above simplifies a lot of law into a few paragraphs, but it covers some of the basics.

Given the high suicide rate after 11-plus years of conflict, I predict we will see more trials where sanity boards are required. PTSD, suicide and domestic violence too frequently travel together, especially when combined with firearms.