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High military court refuses to halt Afghan murder case

By Laura L. Myers

SEATTLE (Reuters) - The highest U.S. military court has denied a last-ditch bid to halt prosecution of one of the five U.S. soldiers in Washington state facing court-martial on charges of murdering unarmed Afghan civilians.

Lawyers for Army Private Andrew Holmes had petitioned the U.S. Court of Appeals for the Armed Forces seeking to compel prosecutors to allow public scrutiny of photographic evidence that the defense says would exonerate their client, despite its inflammatory nature.

Defense attorneys also had asked the court to block further proceedings against Holmes, 20, from Boise, Idaho, unless the photos were ordered unsealed.

But in a one-page decision issued on February 9, the Washington, D.C.-based court denied the petition "without prejudice to further consideration in proceedings," upholding a ruling last month by a lower appeals court.

Holmes' civilian defense lawyer, Dan Conway, told Reuters on Tuesday that the latest decision leaves him free to petition the presiding judge in the case directly to unseal the photos.

"We have every intention of raising this at the earliest opportunity, which is likely the arraignment," he said. No date for that hearing has been set. A court-martial trial is unlikely before early May.

Holmes is the youngest of five soldiers charged with premeditated murder in connection with the slayings of unarmed Afghan villagers allegedly staged to look like legitimate combat casualties. The charges mark the most serious prosecutions of alleged atrocities by the U.S. military in Afghanistan since the war began there in late 2001.

Seven other members of what prosecutors describe as a combat platoon run amok were charged with lesser offenses in the case, which began as a probe of soldiers' hashish use. Three men have pleaded guilty and been sentenced.

But the most potentially explosive aspect of the case are grisly photos that some of the men are accused of having taken of Afghan war dead. Holmes and another defendant are shown in some pictures posing with corpses, holding up lifeless heads by their hair, according to court testimony and documents.

The existence of such images has drawn comparisons to pictures of Iraqi prisoners taken by U.S. military personnel at the Abu Ghraib prison in Iraq in 2004. And the U.S. Army has taken pains to keep the Stryker Brigade photos sealed.

But Conway has argued the photos demonstrate his client's innocence by showing that his alleged victim was likely killed by a grenade blast rather than by rifle fire from the kind of automatic weapon Holmes was carrying at the time.

Conway says the military's decision to seal the photos, barring them from being shown in open court, effectively denies Holmes his constitutional right to a public trial because defense lawyers cannot cross-examine military investigators about the pictures.

(Writing by Steve Gorman; Editing by Greg McCune)