Judge rejects call to oust prosecution in Afghan massacre case

SEATTLE — A military court judge ruled Wednesday that prosecutors in the case of an American soldier who pleaded guilty to a murderous rampage in Afghanistan should not be dismissed from the trial for reading a document they weren’t supposed to receive.

The judge, Col. Jeffery Nance, issued a one-line email saying that he decided the team prosecuting Army Staff Sgt. Robert Bales could remain intact, according to one of the lawyers in the case.

Bales pleaded guilty in June to killing 16 Afghan civilians and injuring several others in March 2012. He accepted a plea deal that spared him the death penalty. Instead, his sentence will be life; the question is whether he will be eligible for parole.

The judge’s decision rejects a motion from Bales’ attorneys to disqualify the prosecutors for receiving and reading a document that contained statements made by Bales during a psychological evaluation. The statements were never intended for dissemination, and defense lawyers contended that prosecutors — who received the document inadvertently — violated Bales’ 5th Amendment protections by reading it.

Defense attorney John Henry Browne said the potentially incriminating statements were made during a “sanity review” process in which Bales was evaluated on whether he was fit for trial.

“He was compelled and ordered to talk to the sanity board over our objections,” Browne said.

In a hearing Tuesday at Joint Base Lewis-McChord, Wash., Emma Scanlan, Browne’s co-counsel, said that removing the prosecutors was “the only remedy that makes sense.”

Browne told reporters after the hearing that if the prosecutors remained, it would be a “huge issue” during the appeal process, one that he believed could prompt “an automatic reversal” in whatever sentence comes out of this trial.

On Tuesday, government lawyers — a group of attorneys different from those prosecuting the case — gave the judge a disc that they said laid out the government’s case before receiving the statements, apparently to show that the inadvertent disclosure of information would not have affected their case.

The sentencing phase is scheduled to begin next week.

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