by John Browne
My office requested his military records. We learned Bales was on his fourth deployment, and the previous three, in Iraq, had been exceptionally tough. He lost part of his foot in 2007 during the Battle of Najaf (the same battle that earned him the Commendation Medal) and suffered a traumatic head injury in 2010 during a vehicle rollover. Add to that the sight of dozens of dead Iraqis, the body parts of which he was sometimes tasked with picking up, and the regular rigors of war—bullets, explosions, the constant high-wire act between life and death. Before his last deployment he was diagnosed with PTSD at Madigan Army Medical Center.
Despite his excellent record, particularly as a leader, he was denied promotion to sergeant first class. Meanwhile he and his wife were on the verge of bankruptcy, soon to lose their home.
The problems escalated during his fourth deployment, which started in February 2012. The atmosphere at VSP Belambay was hostile. The Special Forces soldiers there treated Bales and his fellow soldiers like servants rather than with the respect Special Forces had granted Bales in Iraq. When the elite soldiers did interact with my client, they gave him steroids, alcohol, and other drugs, which further put him on edge.
The challenge for me, Emma, and the JAG defense team was to get a military jury to consider these factors and spare Robert Bales’s life. But we had little faith in the military justice system, given our experience with Major Hurley and the fact that our requests to the command were turned down via cursory one-sentence, sometimes one-word, replies. “Request denied” became a constant refrain.
In the military the command (the local general), not a military judge, makes all pretrial decisions. Just one example of the frustration this caused was when the command ordered a sanity board review without any input or notice to us and then denied our request to set some reasonable guidelines. The sanity board was made up of military personnel, mostly doctors, who examined Bales for days without recording the sessions or allowing him access to his legal counsel.
Even more offensive: I received a request, 125 pages, for a security clearance process. Yes, to be a defense lawyer for an accused soldier, you must be vetted by the opposition. No way would I participate in such a violation of Bales’s Sixth Amendment right to counsel. The first page on the form said it would take approximately two days to fill it out, it had to be filled out while under oath, and all questions needed to be answered. They warned that family members, neighbors, past coworkers, past employers’ credit reports, and past travel would be checked out. I could just imagine some low-level government employee knocking on my sister’s door and upsetting her. As I said at the time: Want to know of my past issues and problems? Just Google me. My skeletons are not in the closet; they’re on the front lawn. This was just another effort at discouraging the use of civilian counsel. I refused, and the issue was dropped. But I wonder how many defense lawyers comply.
I had the added challenge of defending a client accused of crimes committed a world away. When I flew to Kandahar in November 2012, Captain Aiesi, Staff Sergeant Brinker, and I found that interviewing the adult male witnesses was a crash course in cultural diversity. I was instructed never to ask them about their wives. You could ask the men about their health, their kids, their goats—just not anything about their wives. In the small courtyard outside the hearing room (remarkable only for its broken cement wall and a lone canary in a cage), a witness with a Taliban tattoo on the top of his hand and I had a calm and seemingly respectful conversation via interpreters. He seemed wise and gentle—until he told me I would be killed for defending Bales. Not might be killed but would. He was sincere about this threat and oddly polite.
But I fell in love with the children. I wanted to adopt them all. One girl in particular, the most gravely injured of the survivors—presumed dead and found in a pile of bodies—was the sweetest person I’ve ever met. At one point I went up to her guardian, an uncle maybe, handed him a business card, and told him through the interpreters, “Please tell her if she wants to go to college in the States ever, I will make it happen.” I think children in Afghanistan are born with PTSD. Unfortunately, they’re just used to people having their brains blown out in front of them.
As I mentioned before, during my stay at Camp Nathan Smith sirens blared, warning of incoming rockets, three different times. There were no actual rockets; the Taliban were just fucking with us, though I did break my toe during a mad dash to a bunker at 3:00 AM one morning. And the base was under constant observation by large blimps carrying sophisticated cameras that in a second’s notice could be switched to view anything within 360 degrees. I took a photo of one and was told, sternly, by military police never to do that again. (The blimp had apparently caught me taking the photo, and within minutes my transgression had been relayed to the military police.)
My relationship with the troops was odd. To many, mostly enlisted members, I was kind of a hero for helping out a “brother” who had cracked under pressure. I spent many hours smoking cigars in the bunkers with these brave men and women. But to the officers I was a pain in the ass. They knew my job was to blame the army and take the focus off Sergeant Bales. They also knew they could not control me, as I was a civilian, and to them that meant I was a loose cannon.
There was one meaningful exception. I was sitting on the smoking platform with some noncommissioned officers when a colonel joined us. The noncommissioned officers saluted and left. It was just me alone on the platform with this full-bird colonel, who was handsome in a way that reminded me of Clint Eastwood. He offered me a Cuban cigar and said he wanted to share his opinion of Sergeant Bales. He said he had never had a better soldier than Bales in his command and that the “higher-ups” were trying to make Bobby into a rogue soldier rather than take responsibility for the army’s mistake of deploying him, knowing he was “broken.” He related stories I had already heard about Bales’s bravery and dedication. The colonel said he would trust his life in Bales’s hands, and had. The war, he said, had put the sergeant over the edge. And the war, he emphasized, was lost. He pointed out the $2 million Stryker vehicles in the distance, unused and covered in tarps. He said the US military should “blow them up” and go home, because our presence in the country was doing no one any good. He felt guilty that he couldn’t help Bales but said he had been “instructed” not to. We finished our cigars, and he left me on the smoking platform.
It was around this time that I began to fully comprehend the toll a hopeless war had on these brave men and women. I could see it in their faces. There was a resignation, a distant look—a look I have seen in dispirited people my whole life.
On paper the military code of justice is very logical and fair; in practice, for Bales, the fix was in. No way would the army take responsibility for Bobby Bales’s meltdown, even though the government did pay over $900,000 in cash to victims’ families within two days of the incident. We knew the army wanted to avoid the true facts of Bales’s mental health and the politics and dysfunction at the FOB where he was stationed. We hired the best mental health experts and knew they would produce extensive, factual reports. As these reports trickled in, we approached the army prosecutors with the idea of taking the death penalty off the table.
The chief prosecutor, Jay Morse, was recently promoted to colonel. He and Judge Jeffery Nance would exchange e-mails addressing each other as “Dear Jay” or “Dear Jeff,” without even the slightest attempt at formality. We, the civilian lawyers, were “Mr. Browne” and “Ms. Scanlan.” It was clear the prosecution and the judge had their marching orders. Early on we had a formal meeting with the general in charge of Joint Base Lewis-McChord in an effort to stop him referring to the case as a capital case. During our PowerPoint presentation it was clear nobody was listening. You know that look: people staring right at you but who you know are not paying attention. Of course, it was easy to understand the lack of interest, as the facts were so gruesome and it was an international political case.
Finally, Secretary of Defense Leon Panetta made public comments sugges
ting that the death penalty was on the table. This is usually a big no-no, since it could be seen as undue command influence.
How to deal with this stacked deck?
Our play was to show we could prove the army and Special Forces caused the massacre. We told the prosecutors that the whole world would know the army’s dirty little secrets: the payoffs to the victims’ families, the pressure on the rank and file to not cooperate with the defense, the dysfunction at the forward operating base, and how Special Forces encouraged Bales’s drug and alcohol use. We would also establish that the army failed to treat Bales after knowing he had mental health issues. We would, on a worldwide stage, put the army and its leadership on trial. That we had gotten nowhere after spending over $5 trillion on the war effort. That while we send guns, rockets, and drones to Afghanistan, the Chinese are building hospitals there, making them far more likely to win the hearts and minds of the people.
We had the facts to back all this up, and the army knew it. So they agreed to a plea bargain. We wanted the death penalty off the table at any cost because we knew if it was an option, a military jury chosen by a general would impose the ultimate penalty. We had little hope we would succeed.
But we did.
The army said we had to agree that Bobby was a rogue solider. OK, so we had to agree he went out and killed women and children because he had money problems, because he had voluntarily taken steroids and alcohol, and—most appallingly—because his wife was heavyset. “OK,” we said, “whatever. Just take the death penalty option away.” And they did.
In June 2013 we had a trial to determine whether Bales would receive a life sentence with or without parole. (Life with parole carried a twenty-year minimum.) But once again the deck was stacked and the outcome inevitable and fixed. The general who’d wanted the death penalty imposed selected the jury panel. I will never forget the stone-cold looks on the jurors’ faces during the whole trial—as if I was pleading with Mount Rushmore. We decided not to put on a mental health defense, as it would just allow the government to put hack psychologists on the stand who would, without examining Bales, say he was a self-centered sociopath and a bad solider. Instead we concentrated on Sergeant Bales as a person before and after his four deployments.
The jury, however, knew what was expected of them, and nothing would have changed the outcome. They imposed life without parole.
What do I think happened in Kandahar Province on May 11, 2012? I think a good soldier with PTSD and steroids in his veins drank whiskey and shouldn’t have. I think the toll of four deployments was too much. I think a movie about a revenge fantasy got mixed up in his brain, so by the time he was around actual innocent children—like the fictional one avenged in the film—he got it all wrong.
I think Staff Sgt. Robert Bales snapped.
And as I’ve said, I think we are the cause. You can’t engage in two wars—one of which, Iraq, was completely unjustified—send hundreds of thousands of young men into the maw of battle over and over again, and expect nothing bad to come of it.
I thought about this when I was in Kandahar—especially every time that siren blared late at night and I had forty-seven seconds to run barefoot over sharp rocks to the cement bunker, not knowing whether or not I was gasping my last breath. I felt jarred and perpetually on edge, and I knew I was only in it for a week, with no one aiming weapons at me. I couldn’t imagine what it would be like knowing thousands of people were out to kill me for months on end, deployment after deployment.
I can only hope that some courageous leader in the future will see how the system failed Sergeant Bales—who had put his life on the line through four tours in two hellish wars defending the freedoms no longer provided him—and commute his sentence. After all, Lt. William Calley in the Vietnam War was responsible for killing more than one hundred people, mostly women and children, during the My Lai massacre, and his sentence was ultimately commuted, which showed at least that the government had taken some responsibility. I don’t see that as an option with our present leaders, who ignore the war and its costs in dollars and human suffering. For now, the lesson I’ve taken away from all this is beware those who gain their power by withholding their compassion.
By week’s end, after we had conducted our interviews in Kandahar and I climbed aboard a helicopter and it arced over a desiccated, war-pocked land—toward the airfield where the rickety 727 awaited—I wondered how long it would be before we saw the real toll of these wars. I wondered if we’d ever truly comprehend the cost.
And I wondered how many more Robert Baleses we have created.
EPILOGUE
People often ask if I think Ted Bundy killed Deborah Beeler. The short answer is no. Aside from a few coincidences—both she and her manner of death fit the Bundy profile—there is no direct evidence that Ted was active in the Bay Area in early 1970.
But the question itself brings up all kinds of complicated thoughts. I’ve never been able to shake the knowledge that Ted knew about my loss before he sought me out as his counsel—and that he kept that secret from me for years. More complicated still is the fact that I defended Ted knowing he had killed countless women just like Debbie.
It was the ultimate test: How committed was I to this life of defending the rights and lives of others, even the most heinous, no matter how much their crimes personally impact me?
I believe I made the right choice. But drawing up those memories has brought back the dark side of his life and mine.
You know that vague sense you sometimes experience when something is wrong but you don’t quite know what it is because it’s not fully formed? Like the start of an illness. Awake or asleep, there it is. This feeling has been with me, off and on, since Ted’s execution. The best I can do is force it into messy, possibly unanswerable questions.
Does helping the devil make you a devil too? That is, while defending Ted Bundy did I somehow absorb evil? And shame, shame ups the ante with an insidious hiss: Is there something wrong with me that somehow makes it possible for me to defend evil?
For so long I felt responsible for the lives Ted took. I was the one who assisted him in winning special privileges at the Glenwood Springs jail. I told him about the death penalty laws in Florida, where he fled after his second escape, and I was the first person he called from Lake City while he was still basically at large and unknown to the authorities there.
I have never confessed this before, but I sometimes think I should have killed Ted in his Aspen cell after his first escape. I was never searched when I entered the building. I could have easily smuggled in a gun. I had known that if he was ever free again, it was inevitable that he would brutally take the lives of more innocents. But that would have answered my question right there, wouldn’t it?
Killing Ted would have made me more like Ted.
I was once questioned on an afternoon talk show, “What differentiates people like Ted Bundy from the rest of us?”
My response was spontaneous: “He lacked any notion that we are all somehow connected.”
My law partner at the time referred to the answer as more of John Henry’s “woo woo shit.” But the thing is, I have had deep feelings of “oneness” in my life.
My first sense of the sacred connection among all things happened as a child in the desert of New Mexico, and I’ve experienced this deep knowledge of connectedness maybe ten times since. I saw and felt it during the 9/11 tragedies. Many people focus on the horrible images of the planes hitting the towers. I remember how there was a oneness that transcended the external drama. I will never forget a TV image of a well-dressed man with a Rolex on his bloody arm working with a down-and-out street person to help a mortally wounded woman to safety. That is oneness at its best. The reality was the sameness, not the differences.
“How can you defend these people?”
The armored defense lawyer will deliver a practiced reply: “Because the Constitution requires it.” The deeper, meaningful inquiry gets brushed aside, but the truth for me is it’s
a matter of survival.
Experiencing the unsheltered reality of life and death makes me feel alive. When we think of experiencing a spiritual Aha!, we conjure images of pristine beaches, rugged mountaintops, or monastic seclusion. For me they are just as likely to arise in a smelly prison cell or on a bug-infested mattress in a tiny compound in Afghanistan. I may not be well understood when I say that, in a way, crime scenes are sacred places. I have always approached them in this way. Autopsy photos are personal, real, graphic, and powerful. I have no choice but to feel deep respect, both for the dead and the victims, guilty or not, of the system.
I am not a burning bush sort of guy. I don’t have profound moments on a daily basis. Mine is a real struggle to deepen my life in the face of many obstacles—to search for meaning in the midst of representing mass murderers. My friends and associates have a hard time reconciling my private spiritual quest with my public image as an arrogant pit bull defense lawyer. (A frustrated prosecutor actually once called me a “pit bull on crack.”) But being spiritual in my world is not as difficult as dealing with judges and prosecutors who don’t see the world the way I do. My relationship with them is a challenge: I want to be condescending, forceful, and rude, but that’s my ego not my spirit. I force myself to see them as people like me—flawed but trying their best—and try to remind them of their power to practice compassion as well as punishment. I once quoted Buddha to a small-town judge, and he said to me, “Bubba? Bubba who?” (I have also quoted Bob Dylan, Jimi Hendrix, Friedrich Nietzsche, Carl Jung, and Doonesbury in briefs, with mixed reactions.)
The combination of insecurity and arrogance has served me well as a trial lawyer. I’m convinced that when I am at my best in the courtroom, some big voice in the back of the room will shout out, “You’re just a fake, and you know it!” This fear supports the reason all gifted trial lawyers win: we are insecure, and we overprepare. I have driven many associates and staff away by my need to know more than anybody else about the case. This approach confuses and exasperates my opponents, judges, and the public.