In 2013, Army Staff Sergeant (SSG) Robert Bales pleaded guilty to the 2012 murder of 16 Afghan civilians. The case had been referred capital, and Bales’ plea avoided the possibility of the death sentence. A panel of members sentenced Bales to the maximum possible punishment of life without the possibility of parole. Our coverage of the case is available here.

The Army CCA affirmed the findings and the sentence in an opinion issued last September (link to slip op.). CAAF granted review and summarily affirmed on Feb. 15, 2018. Now Bales seeks certiorari. The petition is available here. The questions presented are:

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose exculpatory medical evidence in the government’s possession relating to the accused’s state-of-mind to commit 16 homicides where the United States ordered the accused to take mefloquine, a drug known by the U.S. Food and Drug Administration and the U.S. Military to cause long-lasting adverse psychiatric effects, including symptoms of psychosis that may occur years after use.

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose mitigating impeachment evidence in the government’s possession that Afghan sentencing witnesses flown into the United States left their fingerprints on bombs and improvised explosive devices, especially where the prosecution held the Afghan witnesses out to the jury as innocent “farmers.”

28 Responses to “Bales seeks cert.”

  1. Dew_Process says:

    The way the QPs are presented, there’s little to no chance of cert. being granted here. SCOTUS Rule 10.

  2. T Grieger says:

    I don’t see how the government is obliged to disclose use and potential side effects of mefloquine (Lariam) when that information is widely known.  It was also widely known by soldiers taking that medication that it frequently causes side effects. There were public discussions of that issue at the time of trial.  SSG Bales could certainly tell his counsel if he was taking Lariam.  Further, the potential for a possible side effect at some future point is not an issue (except perhaps an argument that a possible future ailment might also be considered punishment).  The primary issue is whether it was causing a side effect At That Time.  

  3. Vulture says:

    Information that is in the Government’s possession.  Not information that is widely known.  Not information that is common.  Not information that is frequently public.  Information that is in the Government’s possession.

  4. Tami a/k/a Princess Leia says:

    Wouldn’t the guilty plea have waived this?

  5. Vulture says:

    Tami, we talk about it every day here.  Can a person that is incapable of consenting, consent?  If this guy was cracked, could he be a part of the conduct a providence inquiry?

  6. Concerned Defender says:

    This is what infuriates me about the legal profession.  Totally frivolous waste of time like this, clogging the system, and backlogging legit claims and appeals.  Dude admitted he murdered over a dozen totally innocent people including kids.  What possible relief would be fair here?  And yes, the guilty plea should have waived this.  He had several attorney’s and was this even an issue at the time?  I recall that it was explored to some extent was it not?  Did he not have medical doctors on his team, reviewing this information?  I thought his meds were all reviewed and discussed/disclosed at the time.  I recall some open source information about that, and defenses and such waived on these points.

  7. Vulture says:

    I have to disagree with you CD.  Legalities don’t mandate a black and white set of answers.  As mass shooting become the norm is it to be an instant proclamation without consideration that it is a life sentence or the death penalty?  Is it healthy for us as a society or a legal system not to explore the questions inherent to the discourse?  Does Government act more responsibly or less responsibly when its failure to inform establishes a diametrically opposed set of choices?
     
    When the church shooting happened near San Antonio the local sheriff was conducting an interview.  The subject came up about not attaining medical attention for the the shooter after a passer by engaged and killed the shooter.  The sheriff, and mind you this has been a while since I saw the interview, said something to the order of “Would you want to?  Would you want to go through all that trouble for a trial and that process?”  
     
    We aren’t burdened by the process.  We are liberated by it.  We are informed and given choices.  We can hold our leaders accountable by it.  And if, by some chance of higher minds perception, we find a way that this man can see the light of day again.

  8. Tami a/k/a Princess Leia says:

    Vulture, in pleading guilty, be had to disavow insanity at the time of the shootings, and wasn’t there a sanity board?  Were there concerns about his competence at trial?  He had an extremely sharp civilian defense counsel who I know personally and it’s extremely hard for me to believe he would’ve allowed his client to plead guilty if there was the slightest doubt his client wasn’t competent.

  9. Tami a/k/a Princess Leia says:

    The ACCA dealt with these claims head-on, noting no evidence he ever took the anti-malaria drug at issue, and he waived the other issue for failing to object to references the victims were all innocent.  And be never challenged his competencg to plead guilty on appeal, so that is a non-issue.  Nor did he challenge the providence of his guilty plea.

  10. Vulture says:

    I guess that is a different civilian attorney than the one that I read statements from.  I’m sure that is a different defense attorney than the one making this petition.  I know because the petition says “the United States ordered the accused to take mefloquine…” 
     
    Lately, the other half of what we have been hearing about is waiver.  So I’ll put ACCA’s opinion up there with people that use wing suits.
     
    Tell me Tami, does your civilian friend wonder about the competence of the Government attorney that didn’t provide this information?

  11. (Former) ArmyTC says:

    Vulture, let me see if I can get your argument. “The government” was supposed to provide the accused with evidence that the accused was prescribed a medication that the accused himself agreed at trial that he has no evidence that he was ever prescribed or exposed to. 
    And I guess you want to read materiality into evidence that isn’t material too? “He killed bad people even though he didn’t know they were bad” didn’t come in for Lorance either.  “The government” was under no obligation to turn immaterial evidence over, not for sentencing in a non-capital trial. 
    Good effort though. 

  12. Vulture says:

    Former, let me see if I can extrapolate your myopia…   Does an order constitute a prescription or evidence?  Wait, that is a question.  Dammit.   Who am I supposed to ask questions of?  It needs a big sounding name.   Cor… Cours… Court.  I wonder if it will be fiends with me.

  13. Tami a/k/a Princess Leia says:

    But there is no evidence he ever took it.  Government can’t provide something that it doesn’t have and never existed.

  14. Vulture says:

    Tami I won’t disagree with you outright.  But grant me that I’m not far off to have a high index of suspicion that Robert Bales did not have some kind of mental disorder.  Regarding what did happen at trial, and I have been wrong before, so many things went askew with records being released improperly maybe Government just dropped the ball.  But I can’t go where you are going.
     
    Soldiers have been prosecuted for not taking vaccinations before.  Anthrax in the first Gulf War, right?  There have been orders to take them and soldiers have been prosecuted for not taking them.  So I am going to give you a non-hypothetical and let it go at that:
     
    New soldiers at a life-cycle unit receive a risk assessment workbook that requires them to answer a series of questions about their lifestyle.  It has the unit crest of the division, a usage compliance statement, and an authority statement.  It’s glossy cover instructs that the first line supervisor of the soldier will retain it and confer with the soldier periodically.  Inside the booklet is 10 or so pages of probing questions over sexual practices, drinking habits, and thought content.
    A soldier in this unit begins to divert from the mainstream, kind of in a last Scholarship Saturday kind of way.  Unit supervision is mildly amused, maybe entertained but demonstratively aroused.  The risk book never comes out.  Then the soldier gets injured playing ball at PT, then again on personal time, then again at a commemorative function.  The risk book never comes out. 
    Throughout performance evaluations, and command mental health referrals, and NJP the risk book stays remains an apocorathy.  At trial it remains a long distant memory to everyone except for the soldier who knows that it is out there somewhere because he was ordered to fill it out.
     
    And he kept a copy. 

  15. J.M. says:

    I am not defending what Bales did in any way. But on the subject of lack of evidence that he took the mefloquine it is not uncommon, especially in small units far from the aid station, for large blank bottles of mefloquine to be handed out and the Soldier told to take one once a week. That happened to me twice, once with mefloquine and once with a different med (an antibiotic they handed out in bulk, IIRC) on two different deployments with different units. And I doubt that there’s any evidence of that medicine being ‘prescribed’ in my medical records. 

  16. stewie says:

    Agree with Tami et al. There’s four questions here:
     
    1. Was he ordered to take it?
    2. Did he take it?
    3. What are the side effects of taking it?
    4. Did he experience any of those side effects (in relation to capacity)?
     
    1 is the least meaningful of those questions. I’d say it’s irrelevant.
    3 and 4 are highly relevant, but only if the answer to 2 is yes. The petition doesn’t even say it’s yes, it says that because SOME personnel MAY have taken it without proper medical documentation, that Bales MAY have taken it. I’m struggling to see how the government is supposed to know if he took it, if there’s no medical documentation that he took it, and no I’m not convinced that the “Roche report” is remotely definitive evidence that happened. Particularly where nowhere in the trial, appeal or the cert is there anything from BALES saying, yeah, I took that stuff.
     
    So Bales doesn’t say he took it, doesn’t say what, if any, side effects he was having from the medicine he doesn’t say he took at the time of the murders, a sanity board was conducted, there is no current diagnosis attached to suggest any “long-term psychosis” is present in Bales, and there are no medical records saying that he took it.
     
    And the Supremes are supposed to do what with that?
     
     

  17. Vulture says:

    Stewie.  If you are saying that being ordered to take a medication is irrelevant, or an order to do anything is irrelevant, then I suggest that military personnel start getting hazard pay for being captain of the obvious.

  18. stewie says:

    SMH…Vulture you know I was saying irrelevant to this particular assertion.
    Let me simplify it for you. If he was ordered to take X, but then said, I actually disobeyed that order and didn’t take X, or there are no records showing he actually took X, and he says he didn’t feel any of the POSSIBLE effects of X…then guess what, it doesn’t matter that he was ordered to take X (which you don’t even HAVE evidence of here–you only have the argument that SOME people MIGHT have taken it after receiving an order but that it’s POSSIBLE those weren’t captured in the medical records…which is like saying because all bureaucracies are inherently inefficient…).
     
    So, yes, whether he maybe was ordered to take a medication he doesn’t say he took, and that there was no evidence he took is such thin gruel as to be darn close to frivolous (but given the near DP level of the case, I’m not going to call it that).

  19. (Former) ArmyTC says:

    Stewie don’t you see that your logic destroys the argument that the prosecution is evil? That’s why Vulture isn’t letting it go. Anything that counters his narrative is fake news. 

  20. Vulture says:

    Stewie.  Let me back up and say that I have seen an order for vaccinations given in a weekly opord, records show that the soldier received the vaccination, and the soldier was court-martialed for being AWOL during the time of the vaccinations.  But it doesn’t mean that these are not evidentiary.  Would you rather be CM’d for false statement on a record or an AWOL – maybe not such a big deal.  Would  you rather have life without parole for murder or life with parole because something was mitigating –  that’s a big deal.
     
    CD is right though that the chances are slim particularly on the question of fashioning a remedy.  Straight up on-board with the DP argument you suggest.
     
    BTW Former, its not fake news.  But since you are attributing 45’s rhetoric to me:  Stewie said an order was irrelevant but he listed it in the number one spot.  That’s not really a strawman argument but close.  I’ll call it a wicker-man argument.  Every time I see a wicker-man argument this is what I think of.  But I can see now YOU are the wicker-man.

  21. stewie says:

    HOW IS IT MITIGATING?
    How?
    How?
    He didn’t take it. He doesn’t say he took it. He doesn’t say it affected him. He doesn’t say he wasn’t sane at the time of the murder. He had a sanity board. Heck, he doesn’t even say he WAS ordered to take it.
     
    Good grief, I listed order in the number one spot because it’s the first thing CHRONOLOGICALLY that has to happen in order to reach relevancy. And to get to relevancy you have to get PAST the first spot.
     
    Let’s try this one more time before I become convinced this is all an elaborate trolling:
     
    To be relevant, it has to be mitigating. To be mitigating Bales has to have:
    1. Taken X
    2. Felt some sort of affect or result of X on his mental ability
     
    But you don’t have 2. You don’t have 1. What we have is a POSSIBLE precursor to 1 (because he doesn’t even establish that precursor happened to him).
     
    You would need Bales saying:
    1. I was ordered to take X (not relevant in an of itself)
    2. I took X (not relevant in and of itself)
    3. X caused ____ (Relevant assuming the cause was something that explains (4))
    4. The thing X caused (3) should have been considered mitigating because ____ (Relevant)

  22. Concerned Defender says:

    I agree with Stewie in the above post. And to add to that 1-4, you then need:
    5.  Did it impact his providence?  Did it alter it in any perceivable material way?  Probably not, and I suspect he went thru sanity exams, did he not?  So if he’s provident, to his GUILTY PLEAS, which we all know are exhaustively detailed, then it won’t disturb the dozens of serious convictions.
    6.  So then it’s just crafting the right sentence, and he had received LWOP.  
    7.  Weighed against the fact that nobody else who took said drug committed a mass murder (if true);
    8.  So the mitigation needs to be applied to the cold-blooded murder of ~15 civilians including clear non-combatants (kids, women who are rarely combatants).  Can you take time off an LWOP?  And would you even consider it in such a case, on balance.  Recall that it’s not just the murders, but the impact on the entire OEF mission – akin to what happened in Abu Graib – a major costly disruption and loss of goodwill. 
    So what does a Court do with this?  Unwind the knowing, intelligent, all-defenses-waived, with several experienced counsel, deliberate, exhaustively detailed, guilty plea to each and every allegation?  I’d suggest that would be an poor precedent and an injustice windfall for Bales.
    So then the answer is to remand for re-sentencing or craft some arbitrary form of “credit.”  And exactly what form of “credit” applies to a mass murder where the murderer took a malaria drug (assuming proven).  Assuming it’s a homerun for Bales, what credit does he receive off his LWOP sentence? 
    Or, alternately, do we spent massive tax dollars chasing our tale and having a re-sentencing hearing on this entire case.  That would be no small muscle movement, given the scores of victims involved.  And, does anyone REALLY expect a different sentencing result?  Even if he took the drug, and it altered his train of thought to some degree, we’re not talking about shoplifting a camera.  We’re talking about one of the most brutal intentional war crimes of modern conflicts – done with knowing effort, preparation, attempts to conceal himself and his acts (wasn’t he wearing a cape that he thought made him invisible to IR drones?), and so forth in retribution for the loss of comrades.  From my understanding, his thinking was both evil but knowingly clear headed.

  23. Vulture says:

    Wearing a cape that he thought made him invisible?  Are you trying to bait me into something CD?  Did you make that up.  The incident happened around St. Patrick’s day so my memory may not be so good.  But damn.
     

  24. Concerned Defender says:

    @ Vulture.  Yes, he was wearing a cape as reported in several news agencies, and I recall reading or hearing the speculation that he believed it was a method of concealing his thermal image from overhead IR drones.  It was an incorrect belief he apparently adopted from locals or lore or terrorist tactics, which he apparently unsuccessfully attempted to employ.  That’s the theory, anyway, that I heard or read somewhere.
    https://www.nytimes.com/2013/06/06/us/sergeant-robert-bales-testimony.html

    …Fellow soldiers told the court in the Article 32 hearing that they had been drinking together earlier that night, against regulations, and that Sergeant Bales had later walked back into the camp, wearing a cape, his clothes spotted with blood….

     
    https://www.usatoday.com/story/news/world/2012/11/06/details-emerge-afghan-village-massacre/1685147/

    …a cape-wearing Bales slipped away from the post and embarked on a killing spree of his own, said the prosecutor, Lt. Col. Jay Morse. …
    His return to the base was captured on surveillance video, Morse said….

     
    https://www.nytimes.com/2012/03/29/us/details-emerge-on-panjwai-base-where-robert-bales-served.html

    But before the patrol left, a high-powered infrared camera on a small blimp spotted Sergeant Bales nearby.
    An American official said that imagery from the camera showed Sergeant Bales lying facedown in a nearby field. It was not clear what he was doing, but then he stood up and walked toward the outpost, where he was disarmed.

     

  25. Vulture says:

    Concerned Defender.  Isn’t that like saying that my tin foil hat, such as I must be wearing, only works against alien brain waves?  I read CAAFLog with my glasses polarized in opposite directions so that the subliminal typing patterns don’t affect my mind.  After I read a CAAF opinion I read it backwards so that no engrams inhibit my dopamine receptors.   
     
    If you weren’t concerned before you certainly should be now.
     
    Happy Memorial Day.

  26. Alfonso Decimo says:

    I tend to agree with CD. Congress should enable military justice guilty pleas to include a waiver of appellate review as part of the bargained-for exchange with the government. For example, “the Defendant agrees to waive all appellate review if the court imposes confinement within the range of 84-96 months.” This would also include a greatly abbreviated providence inquiry, limited to the Defendant’s knowing understanding of the agreement. The taxpayer savings would be considerable and it would bring military justice more in line with the civilian system. 

  27. stewie says:

    Can’t agree. Way too many problems now in our system to start waiving appellate review, even with a great deal.
    First, you are going to see he government start pushing towards that as a bargaining chip followed by the government acting pretty irresponsibly (and probably the judge and defense counsel too)…if no one is grading your work, why would you put in the effort?

  28. T Grieger says:

    This was all examined in the press over a year Prior to the Bales sentence announcement. DoD was looking into who was taking the drug, where and how they were taking it, what side effects were being reported, etc.  There were multiple psychiatric assessments and ample opportunities for SGT Bales to say if he had taken Anything other than alcohol and supplements.   
     https://www.huffingtonpost.com/2012/03/25/robert-bales-malaria-drug_n_1378671.html