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Soldier wants a military trial in off-base shooting

By Chris Vaughn, McClatchy Newspapers –

FORT WORTH, Texas — The attorney for a soldier and combat veteran accused of shooting at police and firefighters outside Fort Bragg, N.C., this year is asking a federal judge in North Carolina to force civilian prosecutors to shift the case to military jurisdiction.

The lawsuit, filed last week, seeks to have Cumberland County District Attorney William West and North Carolina Attorney General Roy Cooper allow the Army to prosecute Staff Sgt. Joshua Eisenhauer, whom the Army has diagnosed with severe post-traumatic stress from two tours in Afghanistan. It contends that the civilian justice system is being “deliberately indifferent” to the soldier’s worsening mental state.

Eisenhauer, 30, of Fort Worth, is in custody in Raleigh, N.C., awaiting trial on multiple counts of attempted murder and assault with a deadly weapon for a shootout and standoff Jan. 13 in Fayetteville, N.C. No police or firefighters were injured, but Eisenhauer suffered several gunshots.

“Failure of the defendants to release or timely transfer prosecutorial jurisdiction over (Eisenhauer’s) case to the prosecutorial jurisdiction of the U.S. Army denies (Eisenhauer) the mental health care he needs and would otherwise receive from the military health care system for his severe post-traumatic stress disorder,” the lawsuit states. “The defendants, or their representatives, are aware of the mental health care needs of (Eisenhauer) and have disregarded and been deliberately indifferent to those needs.”

Eisenhauer’s attorney, Mark Waple, has unsuccessfully tried to convince both the Army and West that his client should face a court-martial, not a civilian trial, even though the incident occurred off the giant Army post and falls naturally to the civilian district attorney. Waple, along with Eisenhauer’s parents, believe that Eisenhauer would receive better mental health care from Army therapists than from the North Carolina penal system.

West could not be reached for comment. However, he told the Fayetteville Observer newspaper that military prosecutors told him last week that they don’t want Eisenhauer’s case.

“They specifically told me they had no desire to exercise jurisdiction to prosecute the case, and it was properly located in the state system,” West was quoted as saying.

Eisenhauer, a seven-year infantryman in the 82nd Airborne Division, returned from his second tour in Afghanistan in 2010 showing many signs of post-traumatic stress such as hypervigilance, sleeplessness and paranoia. He was also prone to flashbacks, according to fellow soldiers.

In the spring of 2011, he was placed on “medical hold” for “psychiatric reasons” and moved out of his infantry unit to a warrior transition battalion for soldiers with either physical or mental injuries. He was awaiting discharge and was on many prescription medications the night of the shooting.

That night, firefighters and police officers responded to a call about smoke coming from Eisenhauer’s outside deck. Waple said that Eisenhauer was waked by the loud noises, grabbed his pistol and started firing, believing he was under attack by insurgents. About 90 minutes later, police stormed the apartment with tear gas and found him seriously wounded.

In the court filing, Waple said that Eisenhauer’s constitutional rights are being violated by West and Cooper and that he is entitled to mental health care as an active-duty soldier.


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