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Famed Forensic Pathologist
Dr. Michael Baden Will Testify
in Iraqi Sniper Murder Trial

20 January 2008

by Defend Our Troops Contributing Editor, Nathaniel R. Helms

Camp Victory, Iraq - Dr. Michael Baden has been appointed as the forensic pathologist in the court-martial of Sgt. Evan Vela, an Army scout-sniper accused of murder in Iraq. Dr. Baden, who lives in New York City, is a forensic detective of international fame who is as much at home in front of a television camera as he is a jury. He is expected to testify in early February.

The star of the Home Box Office television series “Autopsy,” Dr. Baden is the former Chief Medical Examiner of New York City and presently the chief forensic pathologist for the New York State Police. He is credited with performing more than 20,000 medico-legal autopsies in his 45-year career. He was Chairman of the Forensic Pathology Panel of the U.S. Congress Select Committee on Assassinations that re-investigated the deaths of President John F. Kennedy and Dr. Martin Luther King, Jr. in the 1970s. He gained international attention when he was asked by the Russian government to examine the remains of Tsar Nicholas II, Alexandra and the Romanov family in Siberia in the 1990s.

The decision by the military judge in Iraq to appoint Dr. Baden brings an entirely new dimension to the case. He will assist the court-martial panel in deciding on a key piece of evidence in the case, according to the judge’s ruling.

Dr. Baden was brought aboard by Jim Culp, a former Army paratrooper and military lawyer who convinced the distinguished scientist to take a look at the evidence on Sgt. Vela’s behalf. The sergeant is accused of murdering an Iraqi citizen who blundered into Sgt. Vela's concealed sniper position.

The prosecution contends Sgt. Vela intentionally shot the man at close range, with a 9mm automatic pistol, after being ordered to do so by his squad leader. Sgt. Vela claims that exhaustion from sleep deprivation and a traumatic brain injury prevented him from realizing what he was doing when he fired at the unarmed Iraqi. Baden will assist the court-martial panel in deciding which version of events is the truth.  

Crucial forensics

The military judge said that Dr. Baden, unlike his military counterpart, was able to determine that the victim was killed by a bullet likely fired from a gun positioned at least 18 inches away from the victim’s head. This refuted government evidence that the bullet was fired from six inches away.

Dr. Baden’s finding is extremely important for the defense because it demonstrates that Vela probably fired reflexively rather than intentionally putting his 9mm pistol the victim’s head and pulling the trigger.

Previously in the Sgt. Vela case, the military forensic pathologist had been unable to determine whether the wound to the right side of the head was an entry or exit wound. The Army pathologist was therefore unable to determine where the entry wound was or where to look for powder residue, an inexcusable error, according to attorney Jim Culp.

The United States vs. its warriors

The government has charged Sgt. Vela with the premeditated murder of Genei Nesir Khudair Al Janabi on 11 May 2007 after the Iraqi compromised the security of Vela’s sniper position.

According to the government, Sgt. Vela confessed that he shot Al Janabi in the head two times after being ordered to do so by his squad leader, Staff Sergeant Michael Hensley. The government says Hensley placed a rifle on the dead man’s chest to justify the killing and then lied about how it happened, according to Culp, a vocal critic of the US military’s sudden penchant for prosecuting its warriors who kill in the heat of battle.

SSgt. Hensley, the Armed Forces “All-Service” Sniper competition champion who allegedly gave the order, and Spc. Jorge G. Sandoval, another sniper in Hensley’s squad, have already been acquitted of murder in the case. Sandoval 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. The practice - sometimes called “baiting” - is a ploy the snipers use to attract insurgents into their sights like flies to honey. The practice was frequently used in Vietnam and other combat arenas as well.

Evidence of baiting disclosed during the sniper’s trials in Iraq left international legal experts debating how large a role baiting targets played in the cases. 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 so the snipers could justify shooting anyone who picked up the materials, according to trial testimony. Testimony also revealed that both the battalion commanding officer and command sergeant major wanted the sniper team to increase its body count and be their premier killing unit.  

During emotional testimony at SSgt. Hensley’s court-martial, Vela, then 22, said Hensley told him to shoot Al Janabi after he stumbled on their camoulflaged hidey-hole unarmed and with his arms in the air. Culp said that at the time Vela was suffering from sleep deprivation, traumatic brain injury from mulitple close encounters with IEDs, and Post Traumatic Stress Disorder from more than 6 months of constant combat in an area which his unit sustained high casualties.

"He (Hensley) asked me if I was ready,” Vela testified. “I had the pistol out. I heard the word shoot. I don't remember pulling the trigger. It took me a second to realize that the shot came from the pistol in my hand," Vela testified.

"After he (the Iraqi man) was shot, Hensley pulled an AK-47 out of his rucksack and said, 'this is what we are going to say happened,'" said Vela testified in a partial immunity deal that prevented his account of the incident from being used against him at his court-martial.

The upcoming trial

Vela’s trial was originally scheduled to begin January 28, however the judge’s rulings Sunday may delay the trial for two or three weeks, Culp said. The court’s decision to permit Dr. Baden to testify will undoubtedly draw even more attention to Vela’s case. Baden was an expert witness for both sides in such notable cases as the murder of Medgar Evers, John Belushi’s suicide, the death of Marlon Brando's son Christian, and the O.J. Simpson case, to name just a few high profile legal proceedings. He has also investigated war-related deaths and other tragedies in Croatia, Serbia, Israel, the Gaza Strip and the West Bank, Panama, and Zimbabwe for attorneys and human rights groups.

In addition to allowing Baden to testify, the judge ruled on several other important defense motions Culp introduced during motion hearings on January 11.

The judge denied a defense motion to compel firearms testing, and approved motions to compel the government to produce several key defense witnesses, including a staff sergeant who told Vela that the area he was operating in was dangerous. Another witness is expected to testify to Vela’s exhausted state, Culp said.

The judge also granted a defense motion to provide testimonial immunity for SSgt. Hensley and Spc. Sandoval. Hensley is expected to testify that the area where the shooting occurred was dangerous and Sandoval will testify that the accused was "dazed" immediately after the shooting.

The judge also approved a defense motion to allow sleep testing and Traumatic Brain Injury (TBI) testing for Vela, requests that Major General Rick Lynch (the general commanding the Multi-National Division Center and the 3rd Infantry Division commander in Iraq) had previously denied. Information revealed at the Article 32 investigation showed that on the morning of the alleged incident, Vela had been awake for more than 74 out of the previous 78 hours, and that he was suffering from severe sleep deprivation.

The defense mental health expert, Navy psychiatrist Commander Rosemary Carr Malone, testified at the Article 32 investigation in Vela’s case that it was highly probable that Vela, being a sniper conditioned to pull the trigger on the order to “shoot,” pulled the trigger of his 9mm “reflexively” and not as the result of a conscious intent to kill Al Janabi. She also determined that Vela may have been suffering the effects of Traumatic Brain Injury at the time he allegedly shot Al Janabi. If that is the case his brain injury would increase the likelihood he acted reflexively when he killed the Iraqi.

In previous testimony she had urged Major General Lynch to allow Vela to be sent back to the United States for treatment of PTSD and TBI. She told the court she had arranged for Vela to be treated at the Walter Reed Army Medical Center in Washington D.C., where he would be tested for Traumatic Brain Injury, as well as undergo neuropsychological testing to measure his cognitive impairment when severely sleep deprived. She told the court that the testing would be completed in adequate time for Vela to be returned to Iraq to attend the motion hearing scheduled to take place in his case on 11 January 2008 at Camp Victory.

Lynch denied the motion, claiming that the pre-trial investigation in Vela’s case “shows no evidence of sleep deprivation, Traumatic Brain Injury, or PTSD” because Vela had “made no mention” of his medical problems in his sworn statements to criminal investigators in late June, 2007.

The judge denied defense motions to disqualify the prosecution and to suppress evidence, including Vela’s confession to several US Army criminal investigators and a motion to release Vela from pre-trial custody in Kuwait until the trial commences, and a change of venue out of Iraq.

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Nathaniel R. Helms
Defend Our Troops
20 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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