TACOMA — An investigating officer can ask questions during an Article 32 hearing, which determines whether someone in the military should receive a court-martial. Lots of questions.
That's just what Army Lt. Col. Charles N. Floyd has done during the preliminary hearing for Sgt. 1st Class Michael Barbera.
A Small-Kill Team reconnaissance leader, Barbera, 31, is accused of two counts of premeditated murder in the shooting deaths of two deaf Iraqi boys on March 6, 2007, as they tended to cattle outside the village of As Sadah, about 50 miles northeast of Baghdad.
He also is accused of two counts of prejudicial conduct for lying to superiors when he reported the killings as an attack by insurgents and for making a threatening phone call to the wife of a Tribune-Review reporter.
Barbera is in court at the sprawling Joint Base Lewis-McChord. If his case goes to a court-martial and he is convicted of the murder charges, he would receive a minimum mandatory life sentence and a maximum penalty of death, though the military has no one on death row for killing foreign civilians.
Sgt. 1st Class Richard Grimsley, 41, spent several hours on Friday on the witness stand at Barbera's hearing. Of five men from the eight-man Small-Kill Team who testified last week, he is the only one still in the military. As such, he has the most to lose should he make a mistake and give a false statement because he is still under the Army's jurisdiction.
The other four team members who testified have gone back to civilian life, most medically retired because of injuries suffered during their time in Iraq's restive Diyala province.
Because Grimsley is in the military and was among those who did not fire during the recon mission, Floyd said he wanted to spend more time questioning him.
“I'm not trying to jam you up,” Floyd emphasized to Grimsley.
His questioning of Grimsley sometimes resembled a chat between two uniformed colleagues, albeit a superior and a subordinate. Yet it resulted in some of the most important testimony and interesting moments of the hearing.
Floyd went back over Grimsley's testimony about an encounter he had with Barbera after authorities began investigating the shootings.
According to Grimsley's account, Barbera said he wasn't telling Grimsley to lie, but he wanted him to know that maybe he hadn't seen something when Barbera shot the boys.
Grimsley said Barbera told him that another member of the Small-Kill Team — then-Sgt. Kyle Roth, who is expected to testify as a prosecution witness this week — said he thought he saw a suicide vest as the boys approached the recon squad.
Floyd asked the witness: “It wasn't for a good purpose” that Barbera mentioned this before Grimsley talked with authorities, was it?
Grimsley responded that he did not think it was.
“More of a Monty Python, wink-wink kind of thing?” Floyd asked.
Grimsley again agreed.
“(The boys) didn't even see us until after the shots were fired, from my perspective,” Grimsley later told Floyd. “I didn't see anything on them.”
Pressed again, Grimsley testified that he had a good view of both boys and would not have taken the shots. He said it was possible Barbera “may have” seen something that he hadn't because he was in a different position.
Testimony has been that Barbera ordered the squad to move out immediately after the shooting and denied requests to follow standard operating procedure by conducting a quick Battle Damage Assessment on the two boys.
The assessment helps determine whether first aid can be rendered and recover weapons or intelligence that might be useful.
Only when troops are about to be overrun has the assessment not been done, witnesses have testified, though Grimsley said it might not be done if someone were wearing a suicide vest.
“We had plenty of time to go in there,” he testified.
He added that it left a “question in my mind” about whether Barbera was attempting to hide what Grimsley and others have testified was his violation of the rules of engagement in the shooting deaths of Ahmad Khalid al-Timmimi, 15, and his brother, Abbas, 14. The two were deaf mutes and small in size, family members told the Trib.
Grimsley, responding to a question from Floyd, was the first witness to testify that he believed the shooting death a short time later of the boys' cousin, Muhamed Khaleel Kareem al-Galyani, also violated rules of engagement.
Four other witnesses from the squad have testified that Barbera ordered those with a shot to fire because it was believed the “military-age male” was wearing a military-style pistol holster and was a possible combatant about to compromise their position again.
Grimsley said he did not hear an order to shoot from Barbera, who was on the radio with command and later seemed upset that some squad members had fired.
Family members say al-Galyani was 14, a deaf mute, and clad in a long gown typically worn by adult males. A village member who found the body confirmed to the Trib that the youth was wearing a military pistol holster, but said it contained pruning shears used to cut grass for cattle. He was en route, family members say, to help the two brothers tend to the cattle.
“What I'm hearing you describe is a recon team gone wild,” Floyd told Grimsley. “Is this the way missions went on in this squad? We have guys out on missions and shooting people and not reporting it?”
Grimsley testified that the actions that day had not happened on other missions, a statement supported in previous testimony by other unit members.
“I should've reported” the shootings, he admitted, saying he did not do so at the time because he was a low-level sergeant who followed “the chain of command.”
Jim Wilhelm is investigations editor for Trib Total Media. He can be reached at 412-320-7894 or jwilhelm@tribweb.com.
