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Originally published March 30, 2012 at 9:23 PM | Page modified March 30, 2012 at 10:43 PM

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Browne accuses government of withholding evidence in case against Bales

Seattle attorney John Henry Browne on Friday accused government prosecutors of withholding critical evidence about the massacre of 17 Afghan civilians on March 11.

Seattle Times staff reporter

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It was Friday afternoon in Pioneer Square and attorney John Henry Browne was doing what he does so well: holding court before eight television cameras saying he had lost faith in the government.

Had you just stumbled in, you might even have thought Browne was prosecuting a case against the government. Instead, he was defending his client, Staff Sgt. Robert Bales, who is accused of killing 17 Afghan civilians.

Earlier in the day, Browne's complaints were scooped up by the wire services. With the afternoon news conference, his views would be pushed out even further by local and national media.

"We've been misled," Browne said, adding that government prosecutors were "violating the trust we had."

His evidence? Mainly, that his defense team was unable to interview Afghan witnesses who survived the March 11 massacre.

Browne said prosecutors had promised that if he sent someone to Kandahar Hospital, they could talk to the injured. When the unnamed staffer showed up at the hospital, he or she was told to come back tomorrow, Browne said.

"The next day, they had all been released from the hospital and scattered," Browne said, adding that the government provided no contact information. "That was a violation of trust," he said.

In addition, Browne said the government has not provided the defense team with medical records, nor has it allowed them to view video taken by a surveillance blimp.

"My gut from a defense lawyer's standpoint is that when prosecutors don't cooperate, there's a reason," Browne said. "And the reason is they don't have much of a case."

Responding to Browne's latest parry, Maj. Chris Ophardt, an Army spokesman, issued a brief statement: "The ... Bales investigation is still ongoing. The prosecution will provide the defense with evidence in accordance with the Rules for Courts-Martial and the Military Rules of Evidence. Within these guidelines the prosecution is and has been communicating with the defense."

Dan Conway, a defense lawyer who's handled about a half-dozen other cases involving civilian deaths in Afghanistan and Iraq, said Browne's complaints may be coming too soon.

"There are weaknesses in the case, there's no question about that," he said.

However, with 17 bodies, "it's awfully early to conclude the case is falling apart."

In his experience, including his defense of one of the five Joint Base Lewis-McChord soldiers accused of murdering Afghan civilians for sport during a 2010 deployment, military prosecutors have been mostly cooperative.

While Conway agreed that it is indeed "critical for the defense team to talk to the witnesses as soon as possible to lock them into their testimony," it hasn't even been three weeks since the attacks. It appears the government is still investigating, and they won't turn over all the evidence until they're done, he said.

Either way, it's "going to be an uphill fight for the duration," given the complexity of the case and the logistics, Conway said.

At the news conference, Browne was asked whether post-traumatic-stress disorder (PTSD) will play a role in the defense. At this point, he said, he can't say.

On Thursday, he learned that the government had requested a mental evaluation — standard procedure in these kinds of cases.

Bales will be examined by doctors to determine if he has a mental illness, PTSD or a concussive brain injury, and if he's competent to stand trial, among other questions.

To be sure, the entire case, from the moment the news broke earlier this month, is unique. The government has said virtually nothing on the record. Much of the "news" has come from leaks. The witnesses are thousands of miles away. You need a visa and several layers of clearances to get there. Going out to a village to find witnesses could get you killed.

Testimony from the villagers is potentially crucial in light of statements some have made to journalists and Afghan investigators that several other U.S. soldiers, and U.S. helicopters, were present during the attacks.

"I've heard that report, and that's another thing. I'm really curious as to why the government wouldn't allow us to access these witnesses, because then I would answer your question," Browne told the Los Angeles Times.

But he professed skepticism about reports that other soldiers were present.

"From what I know as Sgt. Bales' lawyer, I don't believe that's the case," he told the Times.

Meanwhile, the case will be tried in military court, which has its own rules. Unlike in civilian court, Browne said, "you can't go to a judge right now and complain."

So is there any avenue for recourse, a reporter at the news conference asked?

"Yeah," Browne said. "You."

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

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