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Originally published March 15, 2012 at 10:04 PM | Page modified March 18, 2012 at 12:18 PM

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Lawyer: Accused soldier was reluctant to deploy to Afghanistan

A Seattle defense attorney hired to help represent a soldier accused of killing 16 Afghan civilians says the possibility that his client...

Seattle Times staff reporters

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A Seattle defense attorney hired to help represent a soldier accused of killing 16 Afghan civilians says the possibility that his client suffered from post-traumatic stress disorder brought on by injuries and multiple combat deployments will be foremost among the issues his team will explore.

John Henry Browne said he spoke by telephone to the 38-year-old staff sergeant, an Army sniper, whose demeanor he described as "shocked" and "distant."

"He certainly wasn't agitated," said Browne, who wouldn't identify the soldier. "I don't think he knows a lot of the facts that are being alleged."

Browne said his client has served most of his 10-year Army career, when not deployed, at Joint Base Lewis-McChord. A decorated soldier, he had lost part of a foot in combat in Iraq, and had suffered a head injury during another Iraq tour when his Stryker vehicle crashed after a roadside bomb detonated nearby, Browne said.

Those injuries and "other reasons" had led the soldier to believe he was not going to be sent to Afghanistan after three previous deployments in Iraq.

Dr. Richard Adler, a Seattle forensic psychiatrist who specializes in PTSD, has been brought in by the defense team. Adler said Thursday that the soldier apparently had undergone a screening for a "concussive head injury" at Madigan Army Medical Center before his most recent deployment in December. Browne said the staff sergeant had sought some counseling, but he did not have the details.

"He did not want to deploy," Browne said in an interview. "In fact he was told he was not going to go. Then, really almost overnight, that changed."

The soldier is suspected of going on a shooting rampage in villages near his base in southern Afghanistan early Sunday, killing nine children and seven other civilians and then burning some of their bodies. The shooting, which followed a controversial Quran-burning incident involving U.S. soldiers, has outraged Afghan officials.

Browne said there was other evidence the soldier may have been under stress: A fellow soldier in his unit had reportedly lost a leg in combat the day before the civilian shootings.

The New York Times reported that the soldier had been drinking on the night of the massacre.

He was expected to be flown to the United States as early as Friday, most likely to Fort Leavenworth, Kan., The Times said. The soldier had been held in Kuwait since Wednesday.

He was part of the 3rd (Stryker) Brigade, 2nd Infantry Division, a unit of some 4,000 soldiers based at Lewis-McChord near Tacoma. He is married and has two young children, ages 3 and 4, Browne said.

Typically, in years past, the vast majority of soldiers in a brigade have deployed from the base to war zones. But during the deployment last December to Afghanistan, some soldiers deployed, while many others did not.

More than 2,200 of the brigade's soldiers are in Afghanistan, according to a base official.

Browne said the soldier "did what he was ordered to do. He would have preferred not to deploy. But he did."

Browne, who in a 30-year career has represented some of the state's most notorious criminals, including serial killer Ted Bundy and, more recently, Barefoot Bandit Colton Harris-Moore, disputed media reports that the soldier was having marital problems.

Emma Scanlan, Browne's law partner, said they had met the soldier's wife and in-laws and that "they support him going forward."

"Of course, she's shocked. She hasn't had an opportunity to speak with him," Scanlan said.

"He's never said anything antagonistic about Muslims. He's never said anything antagonistic about Middle Eastern individuals. He's generally been very mild mannered," Browne said.

Browne said he's working with two Army attorneys who have been assigned to represent the soldier — one in Washington, D.C., and another in Kuwait — and that a priority will be addressing a possible death penalty should the case proceed to a court-martial.

Scanlan said she and Browne bring expertise in handling high-profile homicide cases the military lawyers might not have. Browne said he has handled three or four military cases.

"We don't know anything about our client's state of mind. We don't know anything about the facts of the case, or if they can prove he did what he's accused of," Browne said. "If we believe they can, that's when someone like Dr. Adler comes in."

On Thursday, The New York Times, citing a senior American official, said the soldier had been drinking alcohol — a violation of military rules in combat zones — and suffering from the stress related to his fourth combat tour and tensions with his wife about the deployments.

"When it all comes out, it will be a combination of stress, alcohol and domestic issues — he just snapped," said the official, who has been briefed on the investigation and who spoke on condition of anonymity because the soldier has not yet been formally charged.

Defense Secretary Leon Panetta has said the death penalty could be under consideration, and the court-martial would be the most high-profile U.S. military war-crimes case to emerge from the war in Afghanistan.

Plenty of questions remain about how this court-martial could unfold, including where it might be held.

Afghan lawmakers have called for the soldier to be tried in Afghanistan, to show he is being brought to justice. Browne said Thursday "that will not happen now."

Phillip Stackhouse, a civilian U.S. military defense attorney, said holding the proceeding in Afghanistan would make it much more difficult for defense teams to get expert witnesses to testify, and they could request a change of venue to help give the soldier a fair trial. Moreover, a court-martial there — even at a major base such as Kandahar Air Field — could increase the risks to soldiers serving in the area.

"I think there is very little chance that could happen," Stackhouse said.

Another option would be for the case to be tried at Joint Base Lewis-McChord, which was the court-martial venue last year for four soldiers accused in the 2010 killings of three Afghan civilians.

The Army command could also hold the court-martial at another military installation, according to an Army official.

If the court-martial is held in this country, there are other logistical challenges. Key witnesses would likely be Afghan villagers who saw the shooting, and prosecutors would be expected to put these witnesses on the stand so they can be cross-examined.

"You absolutely have to have that right to confront your accusers," said Eric Montalvo, a civilian attorney who represented Adam Winfield, one of the four soldiers who were convicted of involvement in the 2010 killings.

The Army legal process includes a formal charging expected in the days or weeks ahead, and then an investigative hearing — known as an Article 32 that gathers more evidence.

In the case of the four soldiers involved in the 2010 killings of the three Afghans, the Army command moved ahead with courts-martial that did not include a death penalty as a possible outcome.

If the Army command opts to keep the death penalty as an option in the staff sergeant's court-martial, the defense would be offered more resources.

"It actually offers a greater degree of latitude and funding for the defense team," said Eugene Fidell, who teaches military justice at Yale Law School.

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

The Associated Press contributed to this story.

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