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