SEATTLE — Lawyers for the American soldier convicted of killing 16 Afghan civilians during nighttime raids last year asked a judge Tuesday to remove the prosecution team from the case before his sentencing next week, after at least one prosecutor read compelled statements the soldier gave to Army doctors.
Emma Scanlan, a civilian attorney for Staff Sgt. Robert Bales, said during a hearing Tuesday the prosecutors were accidentally given a copy of compelled statements Bales made to Army psychiatrists — and read it, even though they should have known better.
“The only remedy that makes any sense is to disqualify the government trial members who read it,” she said.
But substitute Army lawyers arguing on behalf of the prosecutors said that remedy would be too drastic. Instead, they suggested a series of measures designed to ensure the government doesn’t use the statements in any way during the sentencing.
Bales pleaded guilty in June in a deal to avoid the death penalty. He faces life in prison either with or without the possibility of parole.
The statements he made to the doctors cannot be used against him during the sentencing because they are protected by his Fifth Amendment right not to incriminate himself. Nor can any information derived from those statements be used against him.
Scanlan did not discuss in court how the prosecutors obtained the statements, but her co-counsel, John Henry Browne, previously told The Associated Press that the judge, Col. Jeffery Nance, inadvertently sent the statements to the prosecutors.
Scanlan said the prosecutors would have been “above reproach” if they had stopped reading as soon as they realized they had inadvertently been given the wrong document and immediately notified the judge. Instead, she said, at least one admitted to her that he read the statements; the prosecutors discussed the statements among themselves; and they failed to immediately notify the court.
Bales made the statements when he was required to participate in a “sanity review” by military doctors, aimed at determining whether he was sane at the time of the attacks and whether he was capable of standing trial.
It isn’t clear what the statements concerned. Browne declined to characterize them.
The regular prosecution team handling Bales’ case did not participate at Tuesday’s hearing. Instead, three other Army lawyers — two from Washington, D.C., and one locally stationed at Joint Base Lewis-McChord — represented the government and suggested there were ways to ensure the statements don’t inform the government’s case at sentencing.
Capt. Chad Fisher told the judge that they provided him a DVD containing the prosecution’s entire case as it existed on July 17 — one day before prosecutors received the compelled statements — along with summaries of what each government witness would testify about at sentencing.
If the witnesses or the government vary from those statements, the judge could require the prosecutors to prove that none of the information presented was based on anything Bales told doctors, Fisher said.
“The Constitution prohibits the use of statements,” he said. “It doesn’t prohibit disclosure.”
After the proceedings, Browne said the defense team had also previously asked the judge to recuse himself, but the judge refused.
The judge said he would rule as soon as possible. It was unclear whether Bales’ sentencing would be delayed.
Bales, an Ohio native and married father of two young children, admitted leaving his post in Kandah
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