The American soldier accused of killing 17 Afghan civilians will have a difficult time with a defense based on post-traumatic stress disorder.


Robert Bales' attorney John Henry Browne speaks to reporters. Reuters.

Nearly one month after the shooting death of 17 Afghan civilians near an Army base in Kandahar province, U.S. military investigators returned to the site of the crime to gather evidence . They are building their case against Staff Sgt. Robert Bales, who stands accused of premeditated murder on all counts.

Bales civilian lawyer, John Henry Browne, has questioned the existence of solid forensic evidence against his client, who is facing military court-martial. Yet, while keeping an innocent plea of the table, Brown also pointed to a different defense strategy: one based on post-traumatic stress disorder, or PTSD.

PTSD--an anxiety disorder triggered by sustained shock--is an increasingly common diagnosis for U.S. soldiers returning home from Iraq and Afghanistan. As a greater proportion of the population grapples with the disorder, PTSD is being used as a criminal defense in court more and more, drawing media attention in the process.

Yet, according to Dr. Paul Appelbaum, an expert on how PTSD is used in the legal system, post-traumatic stress disorder is still an "exceedingly uncommon" defense in court.

"Not unheard of, but uncommon," he added.

Appelbaum, who is Professor of Psychiatry and Director of the Division of Psychiatry, Law, and Ethics at Columbia University, says there are no up-to-date statistics on how often PTSD is used as a defense in court, but the use of the insanity plea in general is more rare in the U.S. legal system than people think--just about one percent of all cases.

Of that one percent, only about a quarter are successful. And, according to a report from Stars and Stripes, that number is even lower in military trials. As Phil Cave, a retired Navy lawyer who practiced in the military system for more than 30 years, put it to Stars and Stripes, a PTSD defense "doesn't usually get you that far" in military court.

An insanity plea tends to be most powerful when there is widespread agreement on a defendant's mental status, Appelbaum explains.

"Most of the time when an insanity defense is successful, it's because everyone involved agrees to it ahead of time," he says. "So the prosecutor agrees with the defense that the defendant was subject to a serious mental disorder that determined his behavior, and that it wouldn't be fair to punish him for it."

In the Bales case, however, doubts linger.

Bales himself had not been diagnosed with PTSD prior to his alleged rampage, but he later reported through his lawyer to have been suffering from symptoms--including nightmares, flashbacks to war scenes, and persistent headaches. Military officials have confirmed that Bales was treated for a mild traumatic brain injury in the past, but say he was cleared for duty.

Overall, there has been increased scrutiny of the military's mental health services since the March 11th shooting rampage, and questions over the effects of multiple redeployments have been raised. Other reports have looked into the possibility that an anti-malaria drug, Laramine, may have helped trigger a psychotic episode.

But while speculation abounds per Bales' state of mind, Appelbaum says that a legal case comes down to a more difficult-to-prove question than whether or not the defendant suffered from trauma. "The first question is, 'Does the person have PTSD?' But the more complex question though is, 'Did the PTSD influence his behavior?' Or, to be more direct, 'How did it influence his behavior?'"

A legal defense based around PTSD can take several forms, but it basically comes down to whether or not Bales had conscious control of his actions, whether he was able to fully appreciate what he had done, and/or whether he was capable of pre-meditating the murder--all difficult points to prove.

Brown is staying mum on the details of the defense strategy for now, but he has repeatedly noted Bales' unstable mental state, positing that his client has no memory of the shooting spree. Amnesia, per se, is not a defense.

"People who commit horrific acts, even absent the influence of something like PTSD, often report that they don't have a memory of what happened because their minds shut out the horror of the situation from their conscious recollection," Appelbaum says. It will take much more than a foggy memory to build a convincing case, he adds.

Rather than ask for absolution based on PTSD, diminished mental capacity may be used as a bargaining tool at sentencing.

The bottom line: "Any insanity defense is a hard argument to make and even harder for a court to buy," Appelbaum says.

For the Bales' case, it may be an uphill battle--and one that's likely to last. The case isn't expected to reach the courtroom for months, as both sides prepare their arguments.

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