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Originally published November 16, 2010 at 10:24 PM | Page modified November 17, 2010 at 9:54 AM

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Soldier's shots may not have killed Afghan man, lawyer tells hearing

The defense attorney for Andrew Holmes, one of three Joint Base Lewis-McChord soldiers charged with the staged murder of an Afghan, suggested that the unarmed man may have killed when a fourth soldier inspected the body and fired a few additional shots to ensure there was no threat.

Seattle Times staff reporter

JOINT BASE LEWIS-MCCHORD — At a Tuesday hearing, a defense attorney suggested that an alleged January murder plot by three U.S. soldiers failed to kill an unarmed Afghan who was the intended victim.

Instead, the Afghan's death may have come shortly after when a fourth soldier, who is not accused of any crime, inspected the prone body and fired a few additional shots to ensure there was no threat, according to Daniel Conway, an attorney representing Pfc. Andrew Holmes, one of the three soldiers charged with the Jan. 15 slaying.

"This is the real problem with the government's case, and they know it," Conway said in a closing statement of a two-day hearing to help determine whether Holmes, a 20-year-old from Boise, Idaho, should be subject to a court-martial trial.

Conway's arguments underscore the difficulties Army investigators face in building a war-zone case against soldiers accused of murder as well as other war crimes while deployed in Afghanistan earlier this year.

Holmes is one of 12 soldiers accused of crimes who served in Afghanistan with the 5th (Stryker) Brigade, 2nd Infantry division, which has been based at Joint Base Lewis-McChord.

Five of those soldiers are accused of involvement in the slaying of three Afghans, but there has been no forensic analysis of the victims' bodies. Army investigators say they were never given approval to exhume bodies, a task that would have angered Afghans and also created security risks to Americans involved in that effort. Lacking physical evidence, prosecutors have based much of their case upon the statements of soldiers who said they were involved with, or knew about the crimes.

During the Holmes hearing, prosecutors cited sworn statements by Spc. Jeremy Morlock that Staff. Sgt. Calvin Gibbs and Holmes participated in the slaying of the Afghan man while on patrol in a southern Afghanistan village.

Prosecutors say the three men carried out a "kill scenario," which involved throwing a grenade at an Afghan, pretending like the explosion signaled an attack and then opening fire with their weapons. As a participant in the plot, Holmes was liable for murder regardless of whether his bullets actually killed the man, prosecutors argue.

Conway said Holmes did not know about the plot and thought he was taking part in a legitimate combat action. Holmes fired at the Afghan with an automatic weapon but never appeared to hit the man, Conway said.

After the incident, other soldiers rushed to the scene, where they saw an Afghan lying on the ground. They believed the man had tried to launch a grenade attack.

Capt. Patrick Mitchell asked one of those soldiers, Staff Sgt. Kris Sprague, to make sure the Afghan was dead, according to a statement Mitchell made to investigators that was obtained by The Seattle Times.

Mitchell said he intended for Sprague to examine the body, and ensure it was "properly cleared" and no longer posed a risk to soldiers. Mitchell said Sprague may have interpreted that remark as requesting additional shots be fired at the Afghan.

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"At first I was distraught, but I had other things to focus on, such any other enemy forces in the area," Mitchell said.

At this week's hearing, both Mitchell and Sprague invoked their Fifth Amendment right not to testify, according to Conway. The Army has photos of soldiers posing with the corpse. But those are kept under tight security along with other images that might arouse anger among Afghans.

Conway has viewed some photos of the January victim. He said they show grenade wounds on the left side and a bullet wound entering the body in the area where Sprague was reported to have fired his shot.

But Conway believes that the photos don't depict any exit wounds that could have been made by Holmes' weapon. He has requested permission for a forensic pathologist to examine the photos.

Hal Bernton: 206-464-2581 or hbernton@seattletimes.com

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