Bergdahl chooses to have trial heard by judge, not jury

[Forever_frost]

http://www.armytimes.com/news/your-army/2017/08/21/bergdahl-chooses-to-have-trial-heard-by-judge-not-jury/?utm_source=Sailthru&utm_medium=email&utm_campaign=EBB%2008.22.2017&utm_term=Editorial%20-%20Military%20-%20Early%20Bird%20Brief

Army Sgt. Bowe Bergdahl has decided to be tried by a judge — not a military jury — on charges that he endangered comrades by walking off his post in Afghanistan.

Bergdahl’s lawyers told the court in a brief filing last week that their client chose trial by judge alone, rather than a panel of officers. He faces charges of desertion and misbehavior before the enemy at his trial scheduled for late October at Fort Bragg. The latter carries a maximum sentence of life in prison.

Defense attorneys declined to comment on the decision. But they previously questioned whether Bergdahl could get a fair trial by jury because of negative comments President Donald Trump made on the campaign trail.

Earlier this year, the judge, Army Col. Jeffery R. Nance, rejected a defense request to dismiss the case over Trump’s criticism of Bergdahl.

Potential jurors had already received a questionnaire including questions about their commander in chief, but defense attorneys weren’t allowed to ask jurors if they voted for Trump.

Rachel VanLandingham, a former Air Force lawyer not involved in the case, said defense attorneys likely felt limited in how they could probe juror opinions.

“They lost their ability to ask all the questions they wanted to ask, one of those being: ‘Did you vote for President Trump?’” said VanLandingham, who teaches at Southwestern Law School in Los Angeles. “They felt that was very important ... for fleshing out whether a panel member could be fair.”

[Forever_frost]

http://www.armytimes.com/news/your-army/2017/07/01/searchers-injuries-can-be-considered-at-bergdahl-sentencing-if-convicted/

Searchers' injuries can be considered at Bergdahl sentencing, if convicted

RALEIGH, N.C. — Serious wounds to a soldier and a Navy SEAL who searched for Army Sgt. Bowe Bergdahl can be used at the sentencing phase of his upcoming trial, a judge ruled Friday, giving prosecutors significant leverage to pursue stiff punishment against the soldier.

The judge, Col. Jeffery Nance, ruled that the service members wouldn't have wound up in the firefights that left them wounded if they hadn't been searching for Bergdahl, so their injuries would be relevant to his sentencing if he's convicted of misbehavior before the enemy at trial in October.

The charge, which carries a maximum penalty of life in prison, alleges that Bergdahl endangered fellow service members by walking off his remote post and triggering search missions across Afghanistan. Bergdahl also is charged with desertion, punishable by up to five years.

Bergdahl's attorneys have argued that he can't be held responsible for a long chain of events that included many decisions by others on how to conduct the searches after he left his remote outpost in June 2009.

But the judge ruled that neither service member would have been wounded "doing what they were doing but for the actions of the accused, assuming he is found guilty." Nance previously ruled that the injury evidence won't be allowed at the guilt-or-innocence phase of the trial, but the sentencing phase has a different evidence standard.


Defense attorney Eugene Fidell said he was reviewing the Friday ruling to determine his team's next step.

Scores of military members searched for Bergdahl, who was captured within hours and would be held captive by the Taliban and its allies for five years.

The former Navy SEAL, retired Senior Chief Petty Officer James Hatch, suffered a career-ending leg wound when he was sprayed with AK-47 fire while chasing enemy fighters on a July 2009 search mission. He testified he nearly bled to death and has endured 18 surgeries since then.

On a separate search mission that month, U.S. Army National Guard Sgt. First Class Mark Allen was shot in the head, suffering a traumatic brain injury that left him in a wheel chair and unable to communicate.

Bergdahl told a general during a preliminary investigation that he left his post intending to cause alarm and draw attention to what he saw as problems with his unit.

Defense attorneys wanted the misbehavior charge thrown out, arguing that the underlying actions weren't independently criminal and that the sentence could be overly harsh.

But the judge sided with prosecutors who argued that Bergdahl's decision to leave his post was criminal enough to trigger the more serious charge. Military members must hold to a high standard of discipline to maintain order on the battlefield, and serving as a soldier isn't like most other jobs, he reasoned in a separate ruling this week.

"Unlike the recalcitrant Wal-Mart employee, a service member really can earn himself a federal criminal conviction for repeatedly being late to work," the judge wrote.

The misbehavior charge has rarely been used in recent decades, though there were hundreds of cases during World War II. Legal databases and media accounts turn up only a few misbehavior cases since 2001, when fighting began in Afghanistan. The judge found only a few relevant cases — one from the Korean War, the other from Vietnam, as precedents for the charge against Bergdahl.

"Two ancient cases are all that are available of superior court guidance as to the meaning of these words," Nance wrote.

A legal scholar not involved in the case, former Army lawyer Eric Carpenter, said the judge's decision to allow evidence about his searchers' injuries would give prosecutors a strong hand at sentencing.

Carpenter, who teaches at Florida International University, said the issue required careful attention because military jurors "might severely punish Bergdahl for second and third order effects of what he did, rather than focusing on his blameworthiness for leaving his post."

The military probe of Bergdahl began soon after he was freed from captivity on May 31, 2014, in exchange for five Taliban prisoners. Former President Barack Obama was criticized by Republicans who claimed he jeopardized the nation's security with the trade.

Bergdahl, who is from Hailey, Idaho, has been assigned to desk duty at a Texas Army base pending the outcome of his legal case.

[Chili]

Doesn't surprise me. They are probably going to be basing defense on legal technicalities that are more clear cut to a judge, with less emotion involved. At least, that would be one reason I would want a Judge over a Jury trial.

[AnthonyS]

That's because it's impossible for the alt left to round up a team
of deserter peers.