I Prosecuted Robert Bales. He Should Never Receive a Pardon

 U.S. Army Staff Sgt. Robert Bales courtroom
In this detail from a courtroom sketch, U.S. Army Staff Sgt. Robert Bales, right, sits with one of his civilian attorneys, Emma Scanlan, left, Wednesday, June 5, 2013, during a plea hearing in a military courtroom at Joint Base Lewis McChord in Washington state. (AP Photo/Peter Millett)

Jay Morse is a retired Army lieutenant colonel.

I prosecuted Robert Bales. Justice demands he remain in prison.

The pardoning of convicted war criminals puts our national security at risk, is contrary to our vaunted American ideals of justice and is an affront to every honorable service member. The chance, however remote, that the president might consider pardoning Robert Bales – murderer of sixteen civilian men, women, and children – should be shocking to all Americans.

Every accused service member deserves a defense, and every convicted criminal, no matter how horrific their crime, deserves the full benefit of due process. They do not, however, deserve their own set of alternative facts. Yet, this continues to be the chosen theme of violent service members seeking clemency. These men are not heroes. Of note, no pardoned war criminal committed his violent acts “in the heat of battle” or under the fog of war; none were brought to court on charges trumped up by rear-echelon staff pukes; none were convicted by legal academics with a political agenda who spent their time in cushy offices stateside. Robert Bales is no exception.

Readers, as well as the president, should have sympathy for Bales – he is a human being. This sympathy should be tempered, however, by the fact that Bales committed his crimes with clear mind and conscience. It should be tempered with similar sympathy for Bales’ victims: among them a grandmother, shot while protecting her grandchildren; a grandfather, shot while his granddaughter clutched at his leg in fear; another grandmother, whose skull was literally stomped in by Bales; a family of nine whom Bales put into a room, murdered, then lit on fire; a toddler, whom Bales shot not just at close range, but by placing his pistol in contact with her head and then pulling the trigger.

Reading the statements of Bales’ attorney in a recent Military.com article, was, to understate it, disconcerting. The assertion that “[n]o one ever determined whether (Bales) was in his right mind;” that Bales had been taking mefloquine and that he was in some sort of alternate mental state during these murders; or that Bales thought he was rooting out Taliban warriors, is false and without merit. It is, in fact, specifically controverted by the record of trial, material evidence, and the sworn statements of fact witnesses.

As lead prosecutor, I was intimately familiar with the facts of the case, as well as in a position to make recommendations to the combat leaders who had statutory responsibility for disciplinary action against Bales. From the first notification that I would lead the prosecution until completion of trial, my intent (conveyed both to my team and those above me) was that we would pursue this case with focus, diligence and professionalism and in strict accordance with law and procedure, and that our conduct would be guided by a mantra of “do no harm.” In short, we would take no action that, no matter how unlikely, might create an issue that could vacate any conviction upon appeal (and to the unmitigated credit to those attorneys on our team, no court of appeals found a single error in our prosecution).

As an example of Bales’ misrepresentations, his mental condition was assessed multiple times, by the defense team as well as ours. Bales was immediately subject to a mental health evaluation board under the Rule for Court-Martial 706, a rule designed to determine whether an accused is mentally fit to stand trial, and whether he may meaningfully participate in his defense. In addition, the government provided Bales, upon his request and of his choosing, no fewer than nine expert witnesses. At least three of those were expert psychologists or psychiatrists alleged, by defense, to be the “best in their field.” And yet, at trial Bales did not call a single of these expert witnesses to provide evidence. This is not a commentary on Bales’ conduct of his defense – he and his attorneys, then as now, make tactical decisions as they wish – but is a specific refutation of Bales’ current assertion that “no one ever determined” if Bales was “in his right mind.” To use a printable legal term: Hogwash.

Similar is any assertion that mefloquine was responsible for Bales’ crimes. To be clear, the defense claim is that the Army prescribed mefloquine to Bales, and that this drug caused Bales to enter some sort of “blackout” state that caused him to unknowingly and involuntarily walk directly to four different homes, murder sixteen civilians over a five-hour period, return to his base midway through the killing spree to reload and to let a fellow soldier know that he would return to the base by 5 a.m. (and Mr. Bales was right on time), and to later make multiple incriminating statements, several of which might credibly be called “bragging.” Importantly, Bales claims he ingested mefloquine in 2004 – a full eight years prior to the murders. Bales provides a single piece of evidence to support his claims – the statement of a fellow soldier who thinks it likely that Bales was in the same unit formation he was in when he himself received mefloquine.

Inconvenient though it may be for some, you must have evidence to make an argument. Generally, the truth or something close to it is preferred. The truth is this: Bales and his attorneys had the opportunity to present evidence three times: at trial, on appeal to the Army Court of Criminal Appeals, and to the Court of Appeals of the Armed Forces. On each occasion, Bales’ attorneys presented zero supporting evidence that he was ever given Mefloquine, zero evidence that he was provided an unfair trial, zero evidence that we should question his mental state at the time of his murders. The truth is that Bales both pleaded guilty and murdered men, women, and children with exactly the same mental acuity: without defect, able to appreciate the nature and quality of his misconduct and with sufficient mental capacity to knowingly and clearly understand his actions.

-- The opinions expressed in this op-ed are those of the author and do not necessarily reflect the views of Military.com. Find more information on how to submit your own commentary.

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