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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. |
