By Eric M. Johnson
TACOMA, Washington (Reuters) - Attorneys for a U.S. soldier accused of killing 16 Afghan civilians in two rampages from his Army post last year must advise military prosecutors next month if they plan to pursue a mental health defense, a judge ruled on Tuesday.
Prosecutors are seeking the death penalty against Robert Bales, a decorated veteran of four combat tours in Iraq and Afghanistan accused of gunning down villagers, mostly women and children, in attacks on their family compounds in Kandahar province in March 2012.
Defense attorneys have said Bales was suffering from post-traumatic stress disorder (PTSD) and a brain injury even before his deployment to Afghanistan.
Army prosecutors have said Bales acted alone and with "chilling premeditation" when, armed with a pistol, a rifle and a grenade launcher, he left his base twice in the night, returning in the middle of his rampage to tell a fellow soldier: "I just shot up some people."
The shootings marked the worst case of civilian slaughter blamed on a rogue U.S. soldier since the Vietnam War and further eroded strained U.S.-Afghan relations after more than a decade of conflict in that country.
At a hearing at Joint Base Lewis-McChord in Washington state, presiding judge Army Colonel Jeffery Nance ruled that the defense team must advise the government on May 29 if it will pursue a defense based on a lack of mental responsibility.
"Bottom line is, on the 29th of May the defense has to advise the government if they are going to defend on lack of mental responsibility," Nance said, adding the deadline is flexible depending on production of witnesses and other reasons.
On May 29, the defense must also provide notice of experts they would call to testify on the issue of diminished capacity or mental issues. The defense team must also provide results of a medical review by doctors, called a sanity board hearing, to determine Bales's state of mind at the time of the killings and his ability to stand trial.
Even if Bales' attorneys do not wish to pursue a defense along those lines, they still have to provide the results of the medical review, due to be completed on May 1.
Attorneys also wrangled over which witnesses would be allowed to testify should the trial move to a sentencing phase, and Nance pared down an initial defense list to a handful of relatives, school officials, and friends who could testify to Bales' character during his formative years.
"This is a capital case. This is extraordinary," said Major Gregory Malson, one of Bales' defense attorneys. He argued that the defense should be able to present more witnesses, including the defendant's mother, because a bigger group would include witnesses who "vary in time and place and perception."
The defense also asked for the handwritten notes of the Afghan investigators who first examined the crime scene, despite having received a translated report on the findings. Nance said the government should officially ask the Afghan defense ministry for those notes.
Defense also sought to add a consultant versed in jury selection for capital trials and a new psychiatrist to their team, though Nance did not rule on those motions.
Major John Riesenberg, a military prosecutor, complained that the defense appeared to be "witness shopping."
Bales' lead civilian attorney, John Henry Browne, said in January that government documents showed Bales had been diagnosed as suffering from post-traumatic stress disorder (PTSD) and a brain injury before his deployment in Afghanistan in 2011.
Military justice experts have said a defense based on Bales' PTSD or deeper mental health could raise serious issues over premeditation, which would make a death sentence less likely.
Bales was bound over for court martial in December and faces 16 murder charges and other charges including attempted murder, assault and drug and alcohol counts. His court martial is set to begin in September.
(Editing by Cynthia Johnston, David Gregorio, Toni Reinhold)