Lawyers for Army Staff Sgt. Robert Bales, suspected of killing 16 Afghan civilians, will likely mount a two-pronged defense, military law experts say, attacking the evidence against him while also arguing that his reported combat injuries and mental trauma created diminished mental capacity.

Bales’ civilian attorney, John Henry Browne, has suggested such an approach in his public comments on the case, in which the Army has identified the soldier as the lone suspect in the March 11 attack but not yet charged him.

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“There’s no forensic evidence, there’s no medical examiner’s evidence, there’s no evidence about how many alleged victims or where those remains are,” he told NBC Nightly News on Tuesday, adding that he intends to travel to Afghanistan to oversee his own investigation.

But he also stated that his client had “no memory” of the attack and suggested that could be from a concussive head injury. In comments to CBS News on Monday, he indicated he would make a "diminished capacity" argument rather than pursue an insanity defense.

Defense official: Staff Sgt. Robert Bales to face 16 counts in Afghanistan massacre

Some military law experts interviewed by msnbc.com said they expect a legal pincer attack, in which the defense may try to win acquittal by attacking the evidence but have a fallback position aimed at winning a lesser sentence than the death penalty -- which Defense Secretary Leon Panetta has said could be sought in this case.

Military officials have said that after drinking at an Army outpost in southern Afghanistan on March 11, Bales, 38, crept away in the night to two nearby villages, where he shot his victims and set many of them on fire. At least nine of the 16 victims were children, they said.

Gary Solis, former head of the Marine Corps’ Military Law Branch and current adjunct professor of law at Georgetown Law School, said the fact that the crime occurred in a combat zone in a distant country complicates the task for prosecutors, who are expected to charge Bales with premeditated murder and other crimes.

Army Sgt. Robert Bales' lawyer questions evidence in Afghanistan killings

To convict Bales of that charge, prosecutors would have to prove that people died, the means by which they died, that the accused is the person who used those means and had premeditated the offense, Solis said.

That would be no easy feat, given the possibility of numerous crime scene complications, he said.

“The prosecution is under additional burden in that they’re trying a crime that happened … 9,000 miles away,” he said. “They have no bodies, they have no autopsies, they have no forensics, they have no photographs, they have no witnesses. There is no Afghan who is going to come here to testify against this guy, so how do they prove premeditation? It’s going to be a problem for them.”

Daniel Conway, a lawyer and former Marine staff sergeant who has been involved in battlefield investigations in Iraq and Afghanistan of alleged crimes by U.S. soldiers, said prosecuting Bales will be “exceptionally difficult.” Even establishing him as the gunman could be problematic, he said.

“It still remains to be seen whether any of these Afghan local nationals can actually identify Bales as the shooter,” he said. “Now there’s going to be some real linguistic divides here in terms of people’s … ability to communicate what they saw but you may very well have the potential down the road for a defense that he didn’t do it.”

The physical evidence from combat zone crimes is similarly suspect, Conway said.

“In these combat zone cases, you have crime scenes that are contaminated almost instantly … bodies are moved, forensic evidence is either contaminated or cleaned, there (are) typically no photographs that are taken of forensic value so you can’t necessarily go back and do a very thorough wound analysis,” he said, noting that it would be difficult to exhume the bodies if they have already been buried due to Islamic tradition.

“It’s not easy to separate the fact from the fiction in this kind of case,” he added.

If Bales’ case goes to trial, the defense will have an opportunity to react to the government’s case, because the Army presents first. That will enable his lawyers to decide whether to focus on attacking the evidence or arguing that Bales’ reported combat injuries and mental trauma from the battlefield created diminished mental capacity. Or, they may do both, Solis said.

“The government has to go first and it has to prove its case,” he said. “He’s going to be ready to take advantage of any chink in the government’s arguments that he perceives in addition to whatever argument he may have.”

Bales was on his fourth tour in a war zone since signing up for the Army after the 9/11 terrorist attacks in 2001. He had spent three years in Iraq on his previous tours, during which time he lost part of a foot and suffered a traumatic brain injury (TBI) due to a vehicle rollover, media reports say. Two days before he allegedly attacked the Afghan villagers, he saw the aftermath of a bombing in which a fellow soldier had his leg blown off, The Associated Press reported.

While an insanity defense remains possible, experts who spoke to msnbc.com note that winning such a case is extremely difficult in a military trial.

Unlike an insanity defense, where Bales would have to be shown not to have known right from wrong to be acquitted, diminished capacity is simply an argument that the crime was not premeditated and that mitigating factors should lessen his punishment.

“That’s very hard, so … he might have to go with this diminished capacity,” Greg Rinckey, a former attorney with the U.S. Army’s Judge Advocate General Corps who is now managing partner of military law firm Tully Rinckey PLLC, said of an insanity defense. “Most of the cases that I’ve tried, that’s what we’ve went with is because we couldn’t get to … the complete no mental responsibility or the capability to stand trial.”

Eugene R. Fidell, who teaches military justice at Yale Law School, said testimony indicating that Bales’ was afflicted by post-traumatic stress disorder, or PTSD, could be introduced at this juncture, but would be unlikely to result in acquittal.

“Maybe some psychiatrist will say he suffers from PTSD,” he said. “That’s not a defense – probably. There’s no case in which PTSD has given rise to a successful insanity defense in the military.”

Solis said Bales’ lawyers would likely put the brain injury, the wounding of his comrade, the multiple deployments and his foot injury into the “diminished capacity argument box,” with the traumatic brain injury (TBI) possibly being a strong element in support of that claim.

Afghan massacre by US soldier puts focus back on brain testing

“You can get a doctor who will come in there with a chart and … show here’s a normal brain and here’s his brain getting TBI,” he said. “So the jury’s got something concrete … that they can wrap their not guilty finding around,” if that’s how they’re leaning.

Conway said doctors compare traumatic brain injury to a “hardware” problem, whereas PTSD is more like a “software” issue.

Solis, the former head of the Marines law branch, said the horrific nature of the crime could ironically benefit Bales’ defense.

“They’re going to say, ‘Would somebody in control of their facilities, somebody who didn’t have diminished capacity have done something this wacky?’” he said. “The act itself is inherently supportive of a diminished capacity” argument.

As a result, he said, Bales’ case might not even make it to a military courtroom. Perhaps a deal will be struck, or maybe mental health exams -– which could takes months -- will show that Bales is not competent to stand trial.

But Conway, the former Marine who has been involved in high-profile military crime cases, including the 2005 killing by U.S. Marines of 24 unarmed Iraqi men, women and children in Haditha, Iraq, said the defense also runs a risk by telegraphing that it intends to argue diminished capacity.

“It’s a two-edged sword. On the one hand, if they can prevent this from turning into a capital (death penalty) case, that’s a huge victory,” he said. “On the other hand, they’re giving away the playbook and they don’t have any access to the witnesses. So the government is going to be out talking to everybody trying to rebut the diminished capacity defense.”

At the same time, a defense built on PTSD and brain injury is generally a tough sell in a military courtroom, Conway said.

“We have used it many times” to get charges reduced, he said. “I can tell you that it’s hard to get a military jury to be sympathetic to these kinds of defenses because the way they look at it is, ‘I’ve had multiple deployments, I’ve had multiple concussive events … I’ve got family problems, and I didn’t go out and do this.’”

“So you’re going to have to be able to explain to the jury why this case is different from their own experiences in combat and that’s going to be tough to do.”  

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The American soldier who is accused in a massacre of 16 villagers near Kandahar could face the death penalty, a military defense attorney said Monday, in one of the worst cases of alleged mass murder by a U.S. service member since the Vietnam War.

U.S. officials have said the soldier acted alone, leaving his base in southern Afghanistan and opening fire on sleeping families. After the massacre, he went back to his base and turned himself in, officials said.

The military will not identify the soldier until charges are filed, Pentagon spokesman William Speaks told msnbc.com Monday. The suspect remains in Afghanistan while the attack is being investigated.

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According to military officials, the soldier will be tried within the military justice system, not turned over to Afghan authorities for trial, rebuffing a call from Afghan lawmakers to use their courts.

 

Report: US soldier who massacred 16 Afghans was from Stryker brigade

The suspect is based out of Joint Base Lewis-McChord in Washington state. He has been identified as a staff sergeant in the Stryker brigade who was taking part in a village stability operation in Afghanistan. He is a 38-year-old married father of two on his first deployment to Afghanistan after three previous deployments in Iraq.

"Based on what we’re hearing I suspect this will be prosecuted as a death penalty case," Philip Cave, a Washington-based military defense attorney told msnbc.com. "You’ve got felony murder, and certainly the number of victims and the circumstances -– very young children as victims –- I think there will be sufficient grounds to move forward as a death penalty case."

Defense Secretary Leon Panetta said the death penalty is a consideration as the military moves to investigate and possibly put the soldier suspected in the mass killings on trial.

Before charges are filed, the soldier will likely undergo heavy psychological testing as part of the investigation, Cave said. Then an Article 32 investigation -- a thorough examination of the case with testimony from witnesses -- will be conducted before any court-martial proceedings. If there is a conviction at court-martial with the death penalty imposed and all appeals exhausted, the president of the United States himself would have to sign the death warrant for the soldier's execution. 

Retired Army platoon Sgt. Jonn Lilyea, a Desert Storm veteran who writes the blog "This Ain’t Hell," told msnbc.com he expects the military to make an example out of the shooter as the case moves through the justice system.

Mourning, anger sweep Afghanistan after massacre

Still, Lilyea cautioned that people should not rush to blame the killings on the soldier’s deployments during the wars in Iraq and Afghanistan.

"I’d wait to see if he really was in a position that would have affected him in this way," Lilyea said. "But I’m more concerned people will try to use this like they did after Vietnam with the My Lai massacre and taint all combat veterans of this generation as if they were like this one guy." Millions of Americans have served in combat, seen and done "terrible things," but have gone on to normal productive lives after their service, Lilyea pointed out.

Lt. William Calley was convicted of killing 22 villagers in My Lai village in 1968 in an incident that heightened U.S. opposition to the Vietnam War.

If the number of people slain in the attack is confirmed at 16, and the soldier is convicted, the mass killings would be the most of any convicted killer on the military’s death row, which currently has six inmates.

Maj. Nidal Malik Hasan, an Army psychiatrist, is accused of killing 13 people at Fort Hood, Texas, in 2009. He also faces a possible death penalty. His trial was scheduled to begin this month but was delayed until June to allow his defense more time to prepare.

John Bennett was the last U.S. soldier to be executed by the military. He was hanged in 1961 after being convicted of the rape and attempted murder of an 11-year-old Austrian girl.

Lethal injection is the current method of execution under military justice, according to military defense lawyer Cave.

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Outrage is continuing to spread over a U.S. soldier’s rogue shooting of 16 Afghan civilians in the middle of the night. Local officials say the shooting spree killed nine children, three women and four men.

While the news slowly trickles through Afghanistan, U.S. officials are rushing to contain the damage from the tragic attack, promising to punish whoever is behind the incident.

But there are fears that the attacks could spark even more violence from an Afghan public already angered by the U.S. and NATO presence in their country.

NBC’s Atia Abawi is in Kabul covering the story. Earlier today she answered reader questions about the attack and the Afghan reaction to it.

Click below to replay the chat.

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Updated at 9:50 a.m. ET: Prime Minister Vladimir Putin said on Wednesday the world faced a growing "cult of violence" and Moscow must not let events like those in Libya and Syria be repeated in Russia.  His comments followed claims of a slaughter and deadly overnight shelling in the city of Homs.

"We of course condemn all violence regardless of its source, but one cannot act like an elephant in a china shop," Putin told Russian religious leaders at a meeting as talk turned to Libya and Syria.

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"Help them, advise them, limit, for instance, their ability to use weapons but not interfere under any circumstances," said Putin, whose country vetoed a U.N. Security Council resolution last week backing an Arab League call for Syria's president to cede power.

"A cult of violence has been coming to the fore in international affairs in the past decade," he said. "This cannot fail to cause concern ... and we must not allow anything like this in our country."

Putin has often criticized the United States and its NATO allies over its use of military force abroad, from the U.S.-led invasion of Iraq in 2003 to a NATO air campaign that helped Libyan rebels drive Moammar Gaddafi from power last year.

Meanwhile, the U.N.'s High Commissioner for Human Rights Navi Pillay said she was "appalled" by the Syrian government's military onslaught of the city of Homs.

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The former South African high court judge said it was extremely urgent "for the international community to cut through the politics and take effective action to protect the civilian population."

Updated at 4:10 a.m. ET: Militiamen loyal to President Bashar Assad stormed the homes of three unarmed families on the edges of opposition districts in the city of Homs, killing women and children,  the Syrian Observatory for Human Rights told Reuters.

"The shabbiha (Assad's militiamen) broke into three houses overnight and slaughtered a family of five -- the father, wife and their three children, a family of seven in another house and a eight in a third," dissident in exile Rami Abdelrahman, who heads the British-based Observatory, told the news service.

The report followed claims that overnight bombardments killed at least 47 civilians in Homs.

There was no immediate comment from Syrian authorities and the report could not be verified because the authorities have placed tight restrictions on access to the country.

Abdelrahman said the attacks occurred near al-Fardaos roundabout and near al-Naziheen and Karm al-Zeitoun districts, where loyalist forces have been advancing after heavy bombardment of the city of one million, 88 miles north of the capital, Damascus.

He gave the names of the families as Ghantawi, Tirkawi and al-Zamel.

"The shabbiha (which means ghosts in Arabic) are acting as if they are at the peak of their power and that they can do anything to prevent the Assad regime from falling," Abdelrahman said.

Meanwhile, Russia stuck to its opposition to Western and Arab pressure for Assad to cede power.

The outcome of any talks on ending the bloodshed in Syria must not be predetermined, Russian Foreign Minister Sergei Lavrov said at a news conference in Moscow. The comments suggested that Russia, which vetoed a draft U.N. Security Council resolution supporting an Arab League call for Assad to quit, has not changed its stance on Syria following a meeting with Assad in Damascus on Tuesday.

Original story: AMMAN -- Bombardment of the Syrian city of Homs by government forces killed at least 47 civilians over the past eight hours, activists in the city and opposition sources said on Wednesday.

"The regime didn't expect us to continue our struggle against them," activist Karam Abu Rabea told The Guardian newspaper via Skype.  "They didn't think we would persist. So now it is using its last card. It is the genocide card."

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"Electricity returned briefly and we were able to contact various neighborhoods because activists there managed to recharge their phones. We counted 47 killed since midnight," activist Mohammad Hassan said by satellite phone.

The attacks on Homs continued despite Russia winning a promise from Assad to bring an end to bloodshed, while Western and Arab states acted to further isolate Assad following the onslaught on the city, one of the bloodiest of the 11-month uprising.

Armored forces loyal to President Bashar Assad have thrust deeper into the central city of Homs, firing rockets and mortar rounds to subdue opposition districts, activists said, a day after Russia said Assad wants peace.

Tanks entered the Inshaat neighborhood and moved closer to Bab Amro district, which has been the target of the heaviest barrages by loyalist troops that have killed at least 100 civilians in the last two days, activists said.

"Tanks are now at Qubab mosque and soldiers have entered Hikmeh hospital in Inshaat. They also moved closer to Bab Amro and shelling is being heard on Karm al-Zeitoun and al-Bayada," activist Mohammad al-Hassan said by satellite phone from Homs.

"Communications have been cut in many parts of Homs and it is difficult to put together an overall picture. But tanks are in main thoroughfares in the city and appear poised to push deep into residential areas," he added.

The official state news agency said "armed terrorist groups" attacked police roadblocks in Homs and fired mortar bombs at the city, with three falling on the Homs oil refinery, one of two in the country. It gave no details of any damage.

Russian Foreign Minister Sergei Lavrov, representing a rare ally on a trip to the Syrian capital, said on Tuesday that both countries wanted to revive a monitoring effort by the Arab League, whose plan to resolve Syria's crisis was vetoed by Moscow and Beijing in the U.N. Security Council.

Lavrov - whose government wields unique leverage as a major arms supplier with longstanding political ties to Damascus, and maintains a naval facility on its coast - told Assad that peace was in Russia's interests.

Msnbc.com staff and Reuters contributed to this report.

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