SEATTLE — The attorney for the U.S. soldier accused of killing 17 Afghan civilians says the government is "hiding evidence" and not giving his defense team the cooperation they were promised.
The Army says officials have been following procedures and communicating with Staff Sgt. Robert Bales' defense team.
The disagreement over access to the evidence and help in getting interviews with witnesses in Afghanistan highlights the differences between military and civilian proceedings.
For one, military legal procedures don't require prosecutors to turn over certain information to the defense until several weeks before a preliminary hearing. And at this point, Bales' attorney, John Henry Browne, said there is no judge to complain to, as he would in a civilian trial.
"It's outrageous. What they are basically doing is hiding evidence," said Browne, adding that he now questions the strength of the military evidence since prosecutors are not sharing it.
"We'll see if they can prove their case," he said.
Dan Conway, a military attorney who represented one of four Joint Base Lewis-McChord soldiers convicted in the deliberate killings of three Afghan civilians in 2010, said the government doesn't appear to be doing anything wrong at this point.
Conway said prosecutors have little obligation to turn over evidence or help coordinate interviews.
"This is just going to be an uphill battle," he said.
Maj. Chris Ophardt, an Army spokesman, said in a statement that the prosecution will provide Bales' defense with evidence in accordance with court martial and military rules of evidence. Within these guidelines, Ophardt said, "the prosecution is and has been communicating with the defense."
Defense Secretary Leon Panetta, after speaking to hundreds of Marines and sailors aboard the USS Peleliu off the San Diego coast, told reporters that he has made it clear that Bales should get "whatever information he would be entitled to under the military code of justice."
Bales is charged with 17 counts of premeditated murder. The military says he left his base in southern Afghanistan and went on a nighttime shooting rampage through two villages on March 11. Nine of the dead were children.
Browne said military prosecutors have gone back on their word. "Normally, we have cooperation with prosecutors and we get information. And in this case, they actually promised us if we sent people to Afghanistan ... that they would cooperate," he said.
The defense team said in a statement that its members attempted to interview injured civilians being treated at a hospital in Kandahar, but were denied access and told to coordinate with prosecutors.
The prosecution team interviewed the civilians, but the defense team said they were unable to after the people were released and no contact information was provided for them. The defense team said prosecutors are withholding information "while potential witnesses scatter."
Browne's team also said they have been denied access to the civilians' medical records, as well as video allegedly taken from a surveillance blimp showing Bales on the night of the killings.
Browne said being given access to information later won't work, especially with Afghan witnesses.
The defense will have a right to interview witnesses that could be called at trial, so the Army could then take the defense team into the villages with security or coordinate to have them come onto the military base.
But Conway said the challenges of interviewing witnesses now means the defense team may not be able to track down people to bolster their case — such as witnesses unable to identify Bales or those who believe there were two shooters.
"If they want to talk to those witnesses, they're going to have to get an investigator and probably go to the village and talk to civilians themselves," Conway said.
Browne also said the military is planning to within the next two months conduct a comprehensive mental health evaluation of Bales at the military prison at Fort Leavenworth, Kan., where he is being held.
He said the mental health evaluation would delay the preliminary legal hearing. He said at this point his team hasn't decided the defense strategy, such as mental issues or post-traumatic stress.
"Until we're convinced that the government has a case, we're not going to speculate what our defense would be," he said.
Baker reported from Olympia, Wash. Associated Press writer Julie Watson in San Diego contributed to this report.
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