SEATTLE (Reuters) – A military judge has granted a defense request to reopen pretrial evidentiary proceedings for one of the five soldiers in Washington state charged with killing Afghan civilians in cold blood.
Dan Conway, the civilian lawyer for Army Private Andrew Holmes, said he was notified on Monday that a new Article 32 hearing for his client has been set for May 25, allowing fresh evidence and testimony to be presented by the defense.
A spokeswoman for Joint Base Lewis-McChord near Tacoma, Major Kathleen Turner, said next week’s hearing would focus on questions the defense has raised about photographic evidence, which the Army has previously sought to keep from public view.
In the military criminal justice system, an Article 32 is roughly equivalent to a grand jury proceeding, where attorneys for both sides present evidence for determining whether the accused should stand trial by court-martial.
Holmes’ case was referred for court-martial in late January.
At his original Article 32 hearing in November, Holmes, then aged 20, professed his innocence directly to the presiding officer, declaring: “I want to tell you, soldier to soldier, that I did not commit murder.”
Holmes’ lawyers complained then that he was denied a fair hearing because military prosecutors had declined to produce in open court sealed photos the defense said would exonerate him.
But a military judge has now ruled that Conway may introduce those photos in court himself, present expert testimony about what they show and cross-examine military investigators and other witnesses about the pictures.
Holmes is the youngest of five soldiers from an infantry unit formerly called the 5th Stryker Brigade charged with premeditated murder in connection with three Afghan civilian slayings investigators say were staged to look like legitimate combat casualties.
The charges mark the most serious prosecutions of alleged atrocities by the U.S. military during 10 years of war in Afghanistan. Seven other members of the combat unit were charged with lesser offenses in the case, which began as a probe of soldiers’ hashish use.
Holmes faces a single count of murder stemming from the death of a 15-year-old Afghan villager in January 2010.
Defense lawyers claim the killing was orchestrated by another soldier, Jeremy Morlock, who they say drew Holmes into the crime by shouting that the Afghan teen had a grenade, then setting off a grenade himself and ordering Holmes to shoot.
Conway says Holmes fired his weapon as ordered but missed, and that the photos in question reveal the victim was likely killed by wounds inflicted by a grenade or other weapons than the kind of automatic weapon Holmes was carrying at the time.
Among the hundreds of photos Conway said he plans to review before next week’s hearing are a handful that surfaced publicly in March when they were published by Germany’s Der Spiegel magazine and Rolling Stone magazine.
In two of those images, Holmes and Morlock are shown separately crouched over the bloodied, stripped body of the Afghan teen, holding his head up for the camera by the hair.
Conway has said his client only posed with the corpse because he was ordered to do so.
Morlock was sentenced in March to 24 years in prison after he pleaded guilty to three counts of premeditated murder, agreed to testify against his co-defendants and apologized in court, saying, “I lost my moral compass.”
Conway has said that photos from the killings are virtually the only forensic evidence collected in a case that otherwise depends entirely on testimony from Morlock.
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