Army Staff Sergeant (SSG) Robert Bales pleaded guilty at a general court-martial in 2013 to the murder of 16 Afghan civilians in 2012. The case had been referred capital, and his plea avoided the possibility of the death sentence. Bales received the maximum possible sentence of life without the possibility of parole.

In 2015, GQ magazine published this story about Bales based largely on post-conviction interviews of Bales that, according to the story, Bales hopes “will humanize him, and he hopes that one day in the hard-to-imagine future, as the wars fade from memory, someone will deem his sentence to be excessive, take mercy on him, and grant him a measure of clemency.”

The Army CCA will hear oral argument in Bales appeal tomorrow. Two issues are before the court:

I. [Whether Bales] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. [Whether] the military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

Both of these issues look to be wholly focused on Bales’ sentence, and neither appear to challenge his plea. The second issue probably involves the military judge’s erroneous disclosure of an unredacted copy of Bales’ R.C.M. 706 (sanity board) evaluation to the prosecution (noted here).

The first issue may also include a challenge to the safety of the widely-used anti-malaria drug mefloquine. According to this Seattle Times report published last week:

Defense attorneys are expected to argue that while on a 2003-2004 tour in Iraq, and possibly in Afghanistan in 2012, Bales took the antimalarial drug mefloquine, according to John Henry Browne, a Seattle attorney who has assisted in the soldier’s defense.

In July 2013, the FDA issued its strictest warning about mefloquine, noting the potential for long-term neurological damage and serious psychiatric side effects. The defense team did not raise Bales’ possible use of the drug during sentencing proceedings the next month.

Defense attorneys now hope the drug issue can persuade a three-judge panel to lessen his sentence.

3 Responses to “Bales appeal may challenge safety of anti-malaria drug”

  1. Concerned Defender says:

    Interesting.  So how many years should a person get in prison for murdering 16 innocent people in cold blood?  Do those dead people get appeals or lessened sentences I wonder?  LWOP is on the table for 1 murder, it should be noted. 
    How many probably billions of dollars in setbacks and losses (quantifiable and un-quantifiable) did that cost the United States, I wonder aloud?
    How many other Soldiers who took that anti-malarial drug went off to commit heinous war crimes (or other crimes), I wonder aloud?  Seems that would be an important consideration.  Seems creative.  Bales took cough syrup a decade earlier, so he shouldn’t be punished so hard for murdering 16 unarmed women, children, and men… 
    I wonder aloud how much an accidental 706 disclosure is worth in terms of years off an LWOP – which can be given for murdering 1 person BTW…?
     
     

  2. Vulture says:

    As you so readily point out, he didn’t kill 1 person, he killed 16.
    If they want to go back and test his mom’s breast milk I wouldn’t have a problem with it.

  3. Kevin Reinholz says:

    CD,
    I agree that the murder of 16 individuals is the elephant in the room and makes it unlikely a sentence of LWOP would be mitigated to LWP. That said, the dangers/side effects of mefloquine are becoming increasingly well documented, including serious neurological and psychiatric side effects that can persist for years after ingesting this anti-malarial prophylactic. (But like you, I’m a judge advocate, not a medical doctor, so I’m not going to assume too much based simply on the fact SSG Bales apparently ingested a potentially very dangerous, mind-altering drug that could have caused long term brain damage).
    I would think, if anything, the legal issue would be IAC, and whether evidence pertaining to mefloquine should have been introduced in mitigation, if the evidence existed at the time of his court-martial/sentencing hearing. That having been said, SSG Bales underwent a sanity board, so it does not appear the sanity board found that he suffered so much neurological damage from mefloquine that he was not mentally responsible for his actions. Maybe even though found mentally responsible, this still could have been sufficient evidence in mitigation that one member would have voted for life. However, SSG Bales (wisely) entered into a PTA, so death was not on the table. And, it’s not IAC if the defense team didn’t know about the dangers of mefloquine because the FDA’s 2013 warning didn’t come out until too late in the game. I confess I don’t know all the facts of the case or the timing of the FDA’s report vis-a-vis SSG Bales’s court-martial.
    I guess at the end of the day, I agree with you that it’s extremely unlikely any newly available evidence would change a sentence of LWOP to LWP, and if the plea/verdict isn’t being attacked, that’s all that’s at stake. Still, the mefloquine issue is interesting and disturbing, especially when you consider how many soldiers/sailors/Marines/airmen were exposed to it.
    He could always apply for clemency down the road and ask the clemency board to mitigate his LWOP sentence down to LWP, assuming he hasn’t been transferred to the BOP in the mean time. Disclosure of the full sanity board report to the prosecution strikes me as an epic fail. But again, probably not enough to mitigate LWOP down to LWP. Will be interesting to see how this appeal turns out. I know “interesting” doesn’t feel like an appropriate word when you consider the devastated families of both the victims and SSG Bales. Still, I wouldn’t completely discount the mefloquine issue. Being forced to take a medication that could have damaged his brain and changed his personality, possibly to the point of becoming violent/homicidal, is a big deal in my mind. Maybe that ends up being mitigating enough. I don’t know.
    V/r
    Kevin

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