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Dr. Baden Bringing Powerful Medicine
to Sniper Murder Trial In Iraq

by Defend Our Troops Contributing Editor, Nathaniel R. Helms
Related story:
Famed Forensic Pathologist Dr. Michael Baden Will Testify in Iraqi Sniper Murder Trial

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January 23, 2008 - Famed forensic pathologist Dr. Michael Baden will travel to Camp Victory, Iraq in early February to provide key testimony in the court-martial of a 24-year old Army sergeant accused of murdering an Iraqi man who compromised his hidden sniper position in the “Triangle of Death.” 

Sgt. Evan Vela has been held in jail in Kuwait for premeditated murder since last 1 July and in confinement since June 24, 2007. He is scheduled for trial in Baghdad on February 8. In addition to murder, Vela is accused of planting evidence on a body, obstruction of justice, and making false official statements for killing an Iraqi man on May 11, 2007. Vela faces life without the possibility of parole. 

The Government has dismissed the premeditation charge and Vela is now accused of intentional murder after the court ordered Article 32 investigation revealed new evidence that didn’t support the premeditation charge. The military judge refused a defense motion to move the trial to the United States.

Ordered to appear

“I am doing what the general court-martial wishes,” Dr. Baden said Wednesday during a telephone interview from his New York City office. “I didn’t volunteer to go, I was asked to go. I would prefer testifying by telephone than by visiting the tribunal in person.

“But being there in person is important. They will want to know what I say, to evaluate the information by hearing it from me – seeing me there - and that is important to understand the evidence. It is a very difficult situation, a tragedy, and it is the least I can do to go there.”

Dr. Baden said he intends to fly to Kuwait and await military transportation to Baghdad. He expects to testify the day after his arrival, he said. It will be his first trial appearance in an active combat zone, although he has investigated cases in the restive West Bank, Gaza and Croatia during his 45-year career, he said.

His appearance in Iraq was ordered by the military judge who granted a defense motion to allow Baden to testify about the forensic evidence in the case instead of the Army’s own pathologist. His testimony concerns what Vela did that day while deployed to the contested Iskandariyah area of Iraq with “Scout Platoon,” Headquarters and Headquarters Company, 1st Battalion, 501st Infantry Regiment (Airborne), a gung-ho hit team the battalion commander put together to raise the body count in his AO. It was led by one of the top snipers in the US military.

Wife of the accused will travel to a combat zone to attend the trial

The regiment was attached to Multi-National Division-Center, Iraq when the incident occurred. For about five months before the incident, Sgt. Vela, a Ranger-qualified infantryman, was a scout in the same platoon. Since being charged the sergeant has been confined at an Army detention center in Kuwait. Vela's wife and father are expected to travel to Camp Victory for the trial, which is ostensibly a public hearing open to anyone who can make it. His attorney Jim Culp, who leads a team of military and civilian lawyers working on Vela’s behalf, said she might be the first wife to attend a court-martial in a combat zone. She will leave behind two small children and a community of friends who have been holding fund raisers and otherwise following the proceedings carefully.

On Monday the military judge – Col Reynold Masterton granted a defense motion to allow Dr. Baden to be named the forensic expert in the trial. The judge also overruled a decision by Major General Rick Lynch, the convening authority, to deny Vela testing for PTSD, Traumatic Brain Injury, maladies associated with sleep deprivation. MG Lynch commands the Multi-National Division Center where Vela’s court-martial is being held.

Extraordinary circumstances, extraordinary case

A defense motion Information revealed at Vela’s Article 32 investigation showed that on the morning of the alleged incident, the sniper had been awake for more than 74 out of the previous 78 hours, and that he was suffering from severe sleep deprivation.

Baden said he has dealt with sleep deprivation cases involving New York City police officers. He used the example of a sleep deprived cop shooting a man he believes to be armed and dangerous to illustrate his point.

“Absolutely in the city in civilian life; a cop says the guy pulled out a gun and so he shoots him. The gunshot wound is in the back. It is rare as hell to see a police officer in the line of duty get prosecuted criminally. The juries consider a lot of other factors. It is a tough situation for somebody to second guess a police officer.”

Dr. Baden said he will introduce evidence about where the victim was shot and how many times. The prosecution claims the forensic evidence shows that the decedent was shot twice in the head at close range. The prosecution’s theory is that Vela intentionally executed the Iraqi on a superior’s orders and then tried to cover it up by lying and deceit. The prosecution wanted to show that the Iraqi man was executed at point blank range, bolstering their flagging case.

The evidence tells another story, Dr. Baden said. Hidden in its mysteries were clues that may help free Vela, currently in criminal custody while undergoing medical treatment in Germany. Baden said he gleaned the contrary evidence from photographs and witness statements that he used to reconstruct the last seconds of the dead man’s life, as well as his death.

Several soldiers have already testified that Vela was in a stupor when he reflexively fired his weapon after he heard his platoon sergeant order him to “shoot” the unarmed Iraqi. Vela testified in previous proceedings that he didn’t even know he had pulled the trigger until he heard his weapon fire.

Baden said his examination revealed that the dead man was shot once from a distance “further than 18 inches away and that the single bullet exited the right side of his head.”

His finding is supported by the lack of gunpowder residue around the wound, he said.

Pictures tell story

“There was no autopsy – no body – and no clothes. We used photographs.  We work with what we are given. It is a science. For a criminal pathologist the truth is the truth of what we find. No body made it more difficult, but we work with what we have,” he said.

The Army forensic pathologist in the case provided evidence during a motion hearing at Camp Victory on January 11 that he could not determine on which side of the victim’s head was the exit wound. Based on his testimony the military judge in the case determined that the Army pathologist’s testimony is not an adequate substitute for the expert opinion of Dr. Baden. 

The judge determined that the Army pathologist could not testify that the bullet which struck the victim's head was fired from at least 18 inches away.  He was not able to determine whether the wound to the right side of the victim’s head was an entry or exit wound.  He was therefore not able to determine where the entry wound was or where to look for powder residue. Other than that the Army pathologist’s testimony is “substantially the same” as that of Dr. Baden, opined Colonel Masterson, an experienced Army judge who has handed down some disappointing decisions for the defense.  

Culp says he believes the military judge missed a huge distinction between the two doctors’ testimony.  The Government’s pathologist could not rule out that the there was no evidence in the photos of any second gunshot wound.  In fact, the government pathologist noted that a small mark on the forehead of the deceased may have been an indicator of a second gun shot wound. 

Dr. Baden stated that he could rule out with medical certainty that the photos revealed any evidence of a second gunshot.  In fact, he believed the small mark on the forehead was nothing more than dirt and that it could have been wiped away without a towel or rag had someone tried.

International attention

Baden’s participation in the case brings even more attention to the series of court-martials that gained notoriety worldwide when two witnesses revealed that while sniping they discussed baiting their traps with enticing military equipment for insurgents to pick up. Though they openly discussed using the items for this purpose, no witness admitted the items had actually been used to bait the enemy.

Critics thundered that it certainly isn’t sporting, and may be a law of armed conflict violation, to leave appealing weaponry out to lure the enemy into shooting range.  Vela was originally charged with asking another sniper to help him dispose of the baiting items.  Subsequent to the Article 32 hearing held in the case, that charge was dismissed.  As a result, it is unlikely that the baiting issue will be relevant to Sgt. Vela’s court martial, Culp said.

Already tried and acquitted of three murders, SSgt. Hensley, the Armed Forces “All-Service” Sniper competition champion who allegedly gave Vela the order to shoot the Iraqi, was reduced a grade for putting the assault rifle on the dead man’s chest. Also acquitted of murder in the case was Spc. Jorge G. Sandoval, another sniper in Hensley’s squad.

Sandoval, initially accused of murder, was convicted of a less serious charge of planting detonation wire on one of the bodies to make it look like the victim was an insurgent. He violated the rules by planting it on a dead man rather than leaving it out so he could shoot the man when he picked it up.

The soldiers in Sgt. Vela’s unit were issued spools of wire, plastic explosives and AK-47 rounds by the Army’s secretive Asymmetric Warfare Group to entrap anyone who picked up the materials, according to trial testimony. Previous trial testimony revealed they discussed using the items for that purpose, but no evidence exists that they actually used it for baiting.  Other evidence revealed during the proceedings demonstrated that there was a different classified purpose for the items.  The defense knows what that purpose is, but declined to discuss what it was because it could endanger U.S. lives. 

According to the government, Sgt. Vela confessed that he shot Al Janabi in the head two times after being ordered to do so by Hensley. In the same decision that authorized Baden’s appearance, Col. Masterton denied a defense motion to have Vela’s confession suppressed. At the time of his statement Vela was being held in isolation recovering from sleep deprivation, eight months of constant combat, and about half a dozen IEDs and mortars that went off in close proximity to him.

Currently, Sgt. Vela is at the US Army Hospital in Landstuhl, Germany being tested for Post Traumatic Stress Disorder, Traumatic Brain Injury and sleep deprivation after spending more than eight months in jail.

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Nathaniel R. Helms
Defend Our Troops
23 January 2008

Note: Nat Helms is a Contributing Editor to Defend Our Marines. He is a Vietnam veteran, former police officer, war correspondent, and, most recently, author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).

 

 

 

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