By GENE JOHNSON
The Associated Press
SEATTLE — An Army appeals court on Friday declined to order that gruesome Afghan corpse photographs taken by Washington state-based soldiers be made public.
Pfc. Andrew Holmes, of Boise, Idaho, is one of five soldiers at Joint Base Lewis-McChord charged in the deaths of three civilians in Kandahar Province last year.
He filed a petition asking the Army Court of Criminal Appeals to allow him to present the sensitive photographs during a preliminary hearing in his case.
In an unusual move, the Virginia court halted Holmes’ prosecution in November while it considered arguments made by his attorney, Army lawyers and the nonprofit National Institute of Military Justice, which sided with Holmes.
The court issued a two-sentence order Friday denying the petition and ordering the stay of his case lifted.
Holmes’ attorney, Dan Conway, said he would appeal to the nation’s highest military court, the Court of Appeals for the Armed Forces.
Holmes is accused of directly participating in the killing of the first victim, a year ago during a patrol in Kandahar Province.
One of the central figures in the case, Spc. Jeremy Morlock of Wasilla, Alaska, admitted throwing a grenade toward the unarmed man and said Holmes was in on it; Holmes acknowledges shooting at the man but claims he believed he was responding to a genuine threat.
Conway insists that the photographs could help show that the injuries the man sustained were not caused by his client’s weapon.
The Army is keeping a tight lid on the pictures because it fears they could cause a backlash among Afghan citizens, but Conway argued that that violated his right to public legal proceedings and to present exculpatory evidence.
“We will continue to fight to ensure that Pfc. Holmes’s rights are scrupulously honored,” Conway wrote in an e-mail Friday.
“Pfc. Holmes was not a part of any conspiracy to murder innocent Afghanis. He’s a young man that was trying to do his job and got unwittingly used as a cover story.”
The Army urged the court to reject Holmes’ petition. Its lawyers argued that the hearing could not be considered closed simply because certain evidence was not presented publicly.
They also said that if Holmes believes that evidence was improperly withheld during the hearing, he should take it up with the judge at his court-martial — not with the appeals court.
Eugene Fidell, of the National Institute of Military Justice, said the denial did not mean that the appeals court found Holmes’ arguments to lack merit.
“They might be just saying, ‘Bring it to the trial judge,”’ Fidell said. “I wouldn’t read too much into this.”
Also Friday, Army officials at Lewis-McChord found that there is enough evidence against the alleged ringleader, Staff Sgt. Calvin Gibbs, to send his case to a court martial.
Though an investigating officer recommended dropping one of the three murder charges against Gibbs, the brass declined, so Gibbs will be tried on all three murder charges as well as conspiracy and other counts.
Gibbs maintains that all of the shootings were legitimate engagements.
