If Army Staff Sgt. Robert Bales is found guilty of killing any or all of the 17 Afghan villagers he's accused of massacring, he could be eligible for parole within 10 years, says James Culp, one of the nation's top civilian military lawyers and the defense attorney for Sgt. John M. Russell, another accused massacre shooter who is seeking to become the first soldier ever to be found not guilty by reason of insanity.
Both men will be tried by courts-martial at Joint Base Lewis-McChord, where the Army earlier this year completed lengthy prosecutions of a dozen members of a "kill team" that murdered and wounded Afghan civilians. The two sergeants are accused of history-making war crimes—Bales of the most violent soldier-on-civilian murders in Afghanistan, and Russell of the most violent soldier-on-soldier killings in Iraq.
In an interview with Seattle Weekly, Culp revealed that his client, Russell, 46, has been confined at JBLM since January, having quietly been moved from Fort Leavenworth, Kan., where Bales is now being held. Three years after he was accused of killing five fellow U.S. troops while under JBLM command at Camp Liberty, Iraq, Russell will face court-martial likely beginning this fall, Culp says.
Bales, 38, whose family lives in Lake Tapps, will eventually be moved from Leavenworth to join Russell at the base stockade, according to an Army announcement over the weekend. Then he too will begin the long march to court-martial, also likely to take years and cost more than $1 million. Last week the U.S. paid $50,000 to each of the families of the 17 victims Bales allegedly killed ($850,000 total), and also gave $11,000 apiece to a number of others Bales is said to have wounded.
Culp—the nation's leading civilian attorney in representing combat soldiers and Marines accused of murder or manslaughter in Iraq and Afghanistan—says there are obvious differences between the two massacres. Russell pleaded with doctors for help before grabbing a gun and shooting up a mental-health clinic at the camp on May 11, 2009, while Bales is accused of slaying Afghan villagers in two separate killing sprees on March 11, reportedly taking a break and returning to his base between shootings.
But while he knows little of the inside details of the Bales case and is not involved in the sergeant's defense, Culp says there's an important similarity between the two accused mass murderers. "Both men endured three years in the war zone—Bales was on his fourth," the Austin, Texas–based attorney notes, "and what both did was a complete aberration from what we know about them."
That suggests a mental breakdown at some level in both cases—a total flip-out by Russell, Culp thinks, and "diminished capacity" (sane, but not knowing right from wrong) by Bales, according to his Seattle attorney John Henry Browne.
"Both of them repeatedly went to combat, and Bales saw even more death and destruction than Sgt. Russell," says Culp. "My experience is that it's very common for sergeants not to seek mental-health treatment—they believe it's a killer for their careers. John at least had access to help. Sgt. Bales was in a remote location, and it would have been more difficult for him, even if he wanted to receive treatment. That was the case, for example, with Private Lawrence."
Pfc. David Lawrence, one of Culp's 1,700 military clients, pleaded guilty last year to entering the holding cell of an Afghan prisoner and shooting him in the face. Though Lawrence faced life in prison or execution, Culp obtained a sentence of 12 1⁄2 years for the 20-year-old mentally stressed soldier, who was on antidepressants at the time.
Culp thinks Bales will find it more difficult than Russell did to make a case for mental impairment because Bales lacks the "clean hands" defense that Russell is mounting. Besides allegedly making two separate trips to kill villagers, Bales was said to have been drinking prior to the incidents (Browne now describes it as the sergeant having "a sip" of something); he also has a drinking history that includes a bar fight. By comparison, Russell, in Culp's words, "did nothing to contribute to his actions," adding: "When you exacerbate a situation with drugs or alcohol—self-medicating or not—it's going to be held against you, especially if you're a sergeant in a combat zone with responsibilities to others. It's voluntary intoxication, and that's not a defense. I don't know to what extent that may have been involved in the Bales case. But Russell did not voluntarily take drugs or alcohol."
These are issues Culp, a former paratrooper and Army staff defense counsel, has dealt with in some of his most high-profile cases, including the rape and murder of a 14-year-old Iraqi girl by four soldiers after they killed her mother, father, and 5-year-old sister, and the killings of 24 Iraqi civilians by four Marines—like Bales' Afghan case, that war's deadliest criminal shooting of civilians.
Bales' attorney Browne has indicated, however, that while he plans to include his client's mental state as a defense—referring to an earlier traumatic head injury in the war zone that he says "was not treated, for a variety of reasons"—he also plans to force the Army to prove his client actually did the killing. He's seen little proof of his client's guilt, he says, and notes that the case lacks a crime scene and forensic evidence—there's "no CSI stuff," as he puts it.
Browne plans a trip to Afghanistan to collect his own evidence and statements. Bales' wife Kari says she's bewildered by the charges: "This is not him," she told NBC.
Both sergeants could face the death penalty if convicted of just one of the counts of murder against them. There is no decision yet on whether to seek execution in the Bales case, and while a judge has decided that Russell won't face capital punishment, military prosecutors are still asking that it be considered, Culp says. A judge recently heard from both sides and is now weighing a final decision.
The difficulty, under military law, of presenting a mental-breakdown defense is that, to Culp's knowledge, no soldier has ever won a not-guilty verdict by reason of insanity. But that's his intention in the Russell case, he says, and he thinks he'll prevail. "Sgt. Russell was psychotic and his actions show it," says Culp.
As we reported in 2009: "After Russell obtained a gun (from a soldier who was guarding him at Camp Liberty) and raced to the mental-health clinic, 'The sergeant moved swiftly through the unsecured building, a single-level plywood structure of about 20 rooms, isolated in a mostly treeless expanse off a busy base highway. He mercilessly sprayed his unsuspecting victims, some of them pleading for him to put down his weapon.' "
Both Bales' and Russell's defenses are being designed to spare their lives if they're convicted. They would then face, at the least, life sentences without parole. But Culp says the targeted outcome is a life sentence with parole. Under the Uniform Military Code of Justice, soldiers given terms exceeding 30 years can become parole-eligible within a decade of sentencing.
"The only military crime that has a mandatory minimum is first-degree murder," says Culp. With the death penalty off the table, "The only sentencing decision a jury can make is life—with or without parole. If it's life with, the client is eligible for parole within 10 years—and is considered for parole every year thereafter."
A case that includes convincing evidence of a mental breakdown could persuade a jury, during the sentencing phase of the court-martial, to agree to that all-important wording, says Culp. But, the attorney cautions, "It's a long road between now and what you put on at trial." Evidence and tactics change. Ultimately, "You want the fairest trial possible and a jury to render a just verdict, and in my experience they usually do."