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'Motivation' lacking in Barbera case, investigating officer says

| Tuesday, April 29, 2014, 11:12 p.m.
Attorney David Coombs is the lead defense attorney for Sgt. 1st Class Michael Barbera, accused of fatally shooting two deaf mute and unarmed Iraqi brothers in March 2007 near As Sadah, Iraq.  Coombs defended Army Pvt. Chelsea Manning against charges of leaking classified information, speaks on Wednesday, Sept. 25, 2013, at Roger Williams University Law School in Bristol, R.I. Manning is at Fort Leavenworth prison in Kansas serving a 35-year sentence for a July conviction on espionage, theft and other offenses. (AP Photo/Steven Senne)
Attorney David Coombs is the lead defense attorney for Sgt. 1st Class Michael Barbera, accused of fatally shooting two deaf mute and unarmed Iraqi brothers in March 2007 near As Sadah, Iraq. Coombs defended Army Pvt. Chelsea Manning against charges of leaking classified information, speaks on Wednesday, Sept. 25, 2013, at Roger Williams University Law School in Bristol, R.I. Manning is at Fort Leavenworth prison in Kansas serving a 35-year sentence for a July conviction on espionage, theft and other offenses. (AP Photo/Steven Senne)

TACOMA, Wash. — The investigating officer overseeing the Army's Article 32 preliminary hearing for Sgt. 1st Class Michael Barbera said he heard “very little” prosecution evidence to support premeditated murder charges in the fatal shooting of two Iraqi boys in 2007.

Lt. Col. Charles Floyd said the prosecution team led by Lt. Col. Robert Stelle also “introduced nothing to show motivation, nothing that suggests that it was anything then-Staff Sgt. Barbera had emotions about afterward.”

There was “a little bit to suggest” that Barbera had “tried to hide the fact he did some of that,” Floyd said.

Floyd had some issues with the way Barbara's defense team of civilian David Coombs and Capt. Patrick Robinson presented their case.

“You guys are all but conceding Staff Sgt. Barbera shot two individuals,” Floyd said.

“As far as I know, there is zero evidence that was proffered” to show a weapon, such as a suicide vest or gun, was in the boys' possession when they were shot on March 6, 2007, he said.

Barbera, who was an Army Small-Kill Team leader, is charged with two counts of premeditated murder in the shootings of the boys, an incident first made public in 2012 in a Tribune-Review investigative report, “Rules of Engagement.” Military investigators and prosecutors who originally reviewed the allegations recommended in 2009 that Barbera be charged with two counts of murder and other charges. Such charges never made it to an Article 32 hearing until after the Trib report. If he's convicted of premeditated murder, he faces a minimum sentence of life in prison.

Floyd shared his observations on the evidence Monday in court at Joint Base Lewis-McChord because he said he wanted to give both sides the opportunity to address those issues in closing arguments.

Capt. Ben Hiller, who handled the prosecution's closing argument, said comments from a majority of Barbera's eight-man Small-Kill Team, who testified during the four-day hearing, indicated they did not see weapons or hostile action by the boys to justify fatally shooting them under the rules of engagement.

Two others testified they were sleeping before the shootings and did not see Barbera's target. The team's second-in-command, Timothy B. Cole, was killed June 6, 2007, by a roadside bomb planted by insurgents.

Like the other members of the team, Cole never reported the killings of the boys or their teenage cousin later that day when he approached the team wearing a military holster with an unknown object in it.

Family members told the Tribune-Review that Ahmed Klakid al-Timmimi, 15, and his brother, Abbas, 14, were not armed while tending cattle in the palm grove when shot. The cousin, whose death is not a matter of charges in the hearing, was en route to help the brothers, family members say. All three boys were deaf.

Hiller said some testimony indicated the first brother shot may have been running and was shot in the back. He said forensic anthropologists confirmed that with reports, which both sides agreed to enter as evidence to avoid the necessity of testimony.

The second boy was shot in the chest while standing still, in apparent horror over what had just happened, Hiller said. Witnesses testified he raised both or at least one hand into the air.

“He's defenseless,” Hiller said. “He's giving the international signal of surrender.”

Hiller argued that by tracing the first boy's movement with his scope and then firing, Barbera considered what he was doing. Even if the first death isn't premeditated, Hiller said, the second was.

At that point, he argued, Barbera could have taken the second boy into custody; a hearing could have been conducted into the other's death.

Coombs argued the decision to shoot the boys was made in a split-second to protect the unit. He noted the circumstances are in dispute, given wide variations in testimony about where the boys were shot, how far away and what they were doing. He noted radioman James LoTempio testified the second boy waved and said, “Hello, mister” after his brother was shot.

Murder charges have no statute of limitations under the Articles of Military Justice, but Coombs noted that lesser charges — such as manslaughter and negligent homicide — must be brought within five years of an incident.

“Premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended,” according to military law the Trib reviewed. “It is not necessary that the intention to kill have been entertained for any particular or considerable length of time. When a fixed purpose to kill has been deliberately formed, it is immaterial how soon afterward it is put into execution.”

Floyd will spend several weeks reviewing evidence. He'll make a recommendation to superiors about whether the case should proceed to a court-martial, whether the charges should be modified, or whether they should be dismissed.

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