What sol­dier can ex­pect in court

Death penalty a pos­si­bil­ity in slay­ings of 16 Afghan vil­lagers

The Washington Times Daily - - Nation - BY PAULINE JE­LINEK AND

The U.S. mil­i­tary has held a prob­a­ble cause hear­ing for the sol­dier sus­pected in the week­end killings of 16 Afghan vil­lagers, but the mil­i­tary still has not re­leased his name or said when charges would be filed.

The mil­i­tary jus­tice sys­tem, in many cases, holds to the same ba­sic tenets as the civil­ian sys­tem.

In both civil­ian and mil­i­tary law, a sus­pect in a crime can­not be held for more than 48 hours with­out a court hear­ing.

“There is a sys­tem in place to make sure that peo­ple sim­ply aren’t thrown into a dun­geon some­where,” said Eu­gene R. Fidell, a for­mer Coast Guard judge ad­vo­cate who teaches law at Yale Univer­sity.

The sol­dier in the Afghan vil­lage killings had such a hear­ing, and it was de­ter­mined that there is cause to con­tinue hold­ing him, said Col. Gary Kolb, a spokesman for the U.s.-led mil­i­tary coali­tion in Kabul.

The 38-year-old staff sergeant and trained sniper is ac­cused of the week­end slaugh­ter of nine chil­dren and seven adults in the mid­dle of the night and burn­ing some of the bod­ies.

De­fense Sec­re­tary Leon E. Panetta has said the death penalty is a pos­si­bil­ity.

Col. Kolb did not say when the hear­ing was held or give any other de­tails.

Mr. Fidell said that un­der the Uni­form Code of Mil­i­tary Jus­tice, the hear­ing was to de­ter­mine that an of­fense pun­ish­able by court-mar­tial had hap­pened; that there was rea­son to be­lieve the ac­cused had com­mit­ted the of­fense; and that there was cause to con­tinue to hold the sus­pect, such as the pos­si­bil­ity that he wouldn’t re­turn for trial or would com­mit an­other crime if re­leased.

The U.S. mil­i­tary said the name of the sus­pect will not be re­leased un­til he is for­mally charged.

“It’s cer­tainly un­usual not to even re­lease the name of a per­son who is taken into cus­tody,” Mr. Fidell said.

He said he thinks, but had no of­fi­cial in­for­ma­tion, that the name is be­ing with­held for the safety of the sol­dier’s fam­ily and con­cern about ret­ri­bu­tion.

Here is a look at what le­gal an­a­lysts ex­pect in the Afghanistan case and some ways it will dif­fer from the han­dling of a civil­ian case:

A mil­i­tary court de­fen­dant first is charged and then sits through a pre­lim­i­nary “Ar­ti­cle 32” hear­ing in which a mil­i­tary panel de­cides whether there is enough ev­i­dence to rec­om­mend a court-mar­tial hear­ing.

At a court-mar­tial, like a civil­ian trial, ev­i­dence is pre­sented and ei­ther a judge or a jury made up en­tirely of mil­i­tary per­son­nel rules on the de­fen­dant’s guilt or in­no­cence and de­cides pun­ish­ment.

In the Afghanistan case, it’s likely the de­fense will ar­gue that the ac­cused does not have the men­tal ca­pac­ity to stand for even the Ar­ti­cle 32 hear­ing, which would mean he would first go be­fore a panel of three men­tal health spe­cial­ists, said Greg Rinckey, man­ag­ing part­ner of Tully Rinckey PLLC and a for­mer Army judge ad­vo­cate gen­eral lawyer.

That men­tal health panel, which prob­a­bly can be con­vened in Afghanistan, will have to de­cide whether the de­fen­dant has a men­tal ill­ness and can tell right from wrong. As long as the two cri­te­ria are met, a trial will go for­ward, Mr. Rinckey said.

The de­fense at­tor­ney prob­a­bly will push for the psy­cho­log­i­cal eval­u­a­tion and the hear­ings to con­vene out­side of Afghanistan, Mr. Rinckey said. But the sus­pect def­i­nitely will be tried in a U.S. mil­i­tary court and likely in Afghanistan.

Un­like a civil­ian who com­mits a crime in a for­eign coun­try and is sub­ject to the laws of that coun­try, there is a U.s.-afghan agree­ment that U.S. forces are im­mune from ar­rest and de­ten­tion by Afghan au­thor­i­ties and in­stead fall un­der the ju­ris­dic­tion of the U.S. mil­i­tary codes and ju­di­cial sys­tem.

Lawyers said it likely will be some time be­fore the case goes to any pun­ish­ment stage.

“If it’s go­ing to be a death penalty case [as Mr. Panetta has sug­gested it might be], it could take a year or more,” Mr. Rinckey said.

Ju­ries in mil­i­tary tri­als can be as few as five, but there must be 12 in death penalty cases, Mr. Fidell said.

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