The Army's decision to pursue the death penalty for a longtime Tacoma-area soldier might have seemed like an inevitability, a slam-dunk in the world of military justice. Given the horrific circumstances, the number and age of the victims, and the wealth of evidence presented against Staff Sgt. Robert Bales at his pretrial hearing last month, how could the decision makers go for anything other than death?
But as a News Tribune story in June pointed out, military capital cases are never straightforward. Recent history suggests a jury would be reluctant to use that punishment on defendants whose alleged crimes were committed in a combat zone.
History also suggests the Army is unlikely to carry out an execution even if it wins a conviction.
Its last execution took place in 1961. McClatchy Newspapers last year reported that 10 of the 16 servicemembers sentenced to death since 1984 had their punishments overturned.
"We don't fall all over ourselves in general to execute our own people, " attorney Eugene Fidell told The News Tribune in June. He teaches military justice at Yale University.
"It's been over 50 years now since we've executed a U.S. soldier and there have been plenty of death sentences, but juries and the appellate courts and the reviewing authorities including presidents do not have itchy fingers when it comes to the death penalty, " Fidell said.
Bales is one of two potential capital cases now moving through the courts at Joint Base Lewis-McChord. The other is for Sgt. John Russell, who allegedly shot five U.S. service members to death outside a mental health clinic at his base in Iraq three years ago. Russell has not made a plea in his case, but his attorney is preparing a defense based on a mental breakdown Russell was having in the war zone.
Today, six men are on death row at Fort Leavenworth, Kan. All six are there for killing other Americans, not for crimes committed against foreign noncombatants. And only one of the six committed his crimes while deployed overseas.
Soldiers who murder civilians in war zones are more likely to face a life sentence as their most serious punishment.
For instance, convicted war criminal Pfc. Steven Dale Green received a life sentence without parole for raping and killing a 14-year-old Iraqi girl, then leading a group of soldiers in killing her family in 2006.
The Army also did not pursue a death sentence against any of the four Lewis-McChord soldiers who were convicted last year in connection with the murders of three Afghan civilians in 2010. The ringleader of this so-called "kill team, " former Staff Sgt. Calvin Gibbs, received a life sentence with the possibility of parole.
But the "kill team" cases played out differently than Bales' case has so far. Army investigators did not uncover evidence of the kill team homicides until May 2010, months after the first two took place. The Army also did not obtain physical evidence connecting Gibbs to a specific homicide victim, and it did not call on witness testimony from Afghan civilians. It relied on Gibbs' platoonmates to describe a conspiracy.
By contrast, the Army uncovered Bales' alleged killing spree on the morning it reportedly took place. And he was the only soldier missing from his base the morning of the murders.
Gary D. Solis, who teaches military law as an adjunct professor at Georgetown University, notes that it's unusual to get a death penalty case for crimes in which the victims are foreigners.
"History and experience would seem to indicate that (court-martial) convening authorities will more readily send a case to trial as a death penalty case if the victims are Americans than they would if the victims are civilian noncombatants, " he said.
The factors weighing on that decision include the "fog of war" argument: The American public and combat commanders understand that civilians die in every conflict because of accidents and split-second judgment calls.
Solis said the pattern could change if prosecutors believe they can demonstrate that servicemembers in situations like Bales' deliberately planned homicides.
Bales' attorneys have suggested their client was experiencing post-traumatic stress and possibly the effects of mood-altering steroids at the time of the March massacre.
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