In a motion filed yesterday and available here, the defense team in the Bergdahl case (CAAFlog news page) asks that the charges against him be dismissed with prejudice or alternatively that the court-martial be prohibited from adjudging any punishment in the event he is convicted.

The basis for the defense request is the statement of Senator John McCain, current Chairman of the Senate Armed Services Committee, that:

If it comes out that [SGT Bergdahl] has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee …. And I am not prejudging, OK, but it is well known that in the searches for Bergdahl, after-we know now-he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter. We need to have a hearing on that.

Mot. at 6 (marks in original). The motion then asserts that:

It is difficult to imagine a more blatant threat to the fair administration of military justice than the one Sen. McCain uttered. That he never carried through on it – or hasn’t yet – is of no moment. The threat itself is the problem.

Mot. at 12 (emphases in original).

While McCain’s comment may require some corrective measure by the court-martial, it’s hard to see how granting either of the forms of relief requested by the defense would be anything less than an enormous windfall for Bergdahl (who functionally confessed to the desertion charge and then made numerous other damaging admissions to a journalist that were broadcast – with Bergdahl’s consent – by NPR in the Serial Podcast). The defense must have an awfully dim view of the intestinal fortitude of the Army leaders responsible for this case if it really believes that the mere threat of a hearing will necessarily and irreparably lead to unfairness in the court-martial proceedings.

The reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army leaders in the face of McCain’s threat:

The motion also compares the comments by McCain about Bergdahl to those of other civilian leaders discussing various military justice issues including sexual assault. Such comments included these 2013 remarks by President Obama about sexual assault and were our #7 Military Justice Story of 2013. No accused (to my knowledge) won dismissal with prejudice (which presumes that there could never be a fair trial under any circumstances) or prohibition of all punishment (which presumes that no fair punishment could ever be adjudged) as a result of those comments. Bergdahl’s motion distinguishes those other comments as generic while asserting that “Sen. McCain’s threat, on the other hand, focuses like a laser on the prosecution of a single NCO, SGT Bergdahl.” Mot. at 14.

Ironically, the motion notes that Senator McCain himself is subject to court-martial (because he is a retired member of a regular component, and thus subject to the UCMJ for life), and asserts that his comments constitute a violation of Article 98:

The government conceded in its 6 July 2016 response to SGT Bergdahl’s third motion to compel (G App 25, p. 6) that Sen. McCain is subject to the UCMJ as a retired regular. See Art. 2(a)(4), UCMJ. His conduct violated the second sentence of Article 37(a) and therefore Article 98(2). The statute of limitations has not expired. Art. 43(b), UCMJ.

Mot. at 16. The motion acknowledges, however, that:

No purpose would be served by SGT Bergdahl or anyone else putting Sen. McCain on report, however. So far as we know, no one has ever been tried for a violation of Article 98.

Mot. at 16. See reaction to the Germans, above.

71 Responses to “Bergdahl seeks dismissal because of comments made by Senator John McCain”

  1. Concerned Defender says:

    Good analysis Zach.  I see this as a frivolous motion by an exceedingly desperate defense team in the face of losing.  And undermining ones credibility before the Court, and wasting the Court’s time on frivolous motions, is not the way to gain credibility.  As you mentioned, he’s a self-confessed deserter.  The elements of the crime are met.  Senator McCain’s comments endorse nothing more than following the rule of law.  What next?  The “Hillary” defense that in spite of Bergdahl doing it, he didn’t “mean” to do it so let’s just ignore it?  
    The quoted comments from the motion, “It is difficult to imagine a more blatant threat to the fair administration of military justice…”  Oh good grief.  This statement alone doesn’t pass the laugh test.  An obscure comment by a Senator who can and will do exactly nothing tangible to any military member regarding this case is hardly any interference with the foregone conclusion of the process and result.  
    In a word, it’s “reaching” quite a bit.  When you start filing frivolous motions, it’s a signal you’re out of legit arguments.

  2. Stephen Wilson says:

    i remember seeing comments on this blog about a general’s promotion having had a “hold” placed on it by a Senator for her CA actions. And about the consequences for General Franklin for his CA actions. And about the Wright case. 
     
    It it seems to me that threats by the Chairman of the Senate Armed Services Committee should be and probably are taken seriously by serving officers. Not laughable at all when the future of one’s career and retirement are considered. 

  3. Zachary D Spilman says:

    Except, Stephen Wilson, that Senator McCain threatened a hearing.

  4. Cheap Seats says:

    I love how this group gets all up in arms about (Un)lawful Command Influence by all manners of folks when there is an allegation of sexual assault, but when similar statements are made about desertion, they are frivolous.  Now, I don’t think for a second that they will get anywhere on their motion, but voir dire will tell the tale on that.  Similarly, I am not privy to the inner workings of the CA’s office.  Perhaps they find the Senator’s comments influenced the CA.  I’m with Stephen Wilson on this one.  We all know that “hearings” can take many forms…and have many consequences.

  5. Zachary D Spilman says:

    Well, Cheap Seats, I don’t know what you mean by this group, but I’ve never thought that comments like Senator McCain’s warranted dismissal with prejudice. If you want to understand why, you should read my 2014 post about the NMCCA’s opinion in United States v. Easterly, No. 201300067 (N.M. Ct. Crim. App. Jan 31, 2014).

    Much like Bergdahl, the trial defense counsel in Easterly sought dismissal with prejudice or sentence limitations as a remedy for comments by the Commandant of the Marine Corps. About this I wrote:

    This was, I think, a mistake by Trial Defense Counsel. I recognize the value of asking for all and settling for some, but most of these requested remedies – and particularly either dismissal with prejudice or the sentence limitations – are so extreme as to border on absurd in a case where there is no direct link between the claimed UCI (the Commandant’s actions) and Appellant. They presume that Appellant could never receive a fair trial in the wake of the Heritage Brief, regardless of the any lesser remedies that might have been employed by the judge. Getting a fair trial may be harder than it used to be, but I don’t believe that it’s impossible.

    The analysis for Bergdahl – with respect to Senator McCain’s comments – is no different.

    And if we consider all of the circumstances of the case, then we must also consider that Bergdahl’s own words and willing participation in the Serial Podcast are significant factors that have the potential to affect the proceedings in ways possibly greater than any comments by political figures. 

    As I wrote in my post above, McCain’s comments may require some corrective measures (an emphasis on the protections of Article 37, perhaps). But I don’t believe his comments are so damaging that they overwhelm all corrective measures such that no fair trial – or appropriate punishment – may ever be had.

  6. Vulture says:

    Zach.  You are right.  The Senator did threaten a hearing.  Now he is going to get one.  One could easily equate his time as a POW to the implications that surround BB’s circumstances.  So the impact of the statement requires an examination in the public eye.  Hands down.

  7. Aaron Spencer says:

    The analysis isn’t the same here, Zachary D Spilman, as in the Easterly case. The Heritage Brief controversy was about a general situation. Here there IS a direct link between the comments made by Senator McCain and the Defendant. Senator McCain is essentially threatening to hold a hearing of the Armed Services Committee if the court doesn’t do what he thinks is right.
    Am I saying that a dismissal with prejudice is warranted? No. But it does require some deeper thought and analysis than merely following the Easterly precedent.

  8. John O'Connor says:

    This reminds me of voir dire in a murder case, where the defense lawyer asks a member if he could consider “no punishment” if the accused is convicted.  And then we all get jerked around because there’s a zero chance a member would convict of murder and adjudge no punishment for it.  But we all have to do the dance and the MJ coerces the member to say that, yeah, he could consider no punishment for a murderer.
     
    There was roughly a zero chance that a CA, on his own, would decide not to bring this to a court-martial, so any comments by Senator McCain couldn’t have any effect on the referral decision.  The only way this was not going to a court-martial is if UCI was brought to bear in the other direction — some higher-up pressured the CA to pull the plug. 

  9. Concerned Defender says:

    There are important factual differences distinguishing the blanket UCI in Sex Assault cases vs this BB situation as well.  Obama is the Commander in Chief and far more powerful over the military than Senator McCain.  Obama’s statements were that basically an allegation is as good as a conviction and that all convictions should result in a Duck Dinner and other severe penalties.  That is a sweeping destruction of due process across the services.  Clearly UCI when your boss says that every allegation must result in a DD. Ignore that many of those will be meritless, and the accused will be Not Guilty or plead Not Guilty. 
    Conversely, in the BB case it’s one individual case, Sen McCain has trivial power over anyone, he’s said there will be a hearing which means nothing, and BB has admitted to the offense voluntarily… 
    The distinction is literally night and day. 

  10. Stephen Wilson says:

    Concerned Defender:
     
    If you believe an individual Senator has “trivial power” over a serving officer, please remember Lt. Gen. Susan Helms. I am sure no general officer has forgotten her.  
     
    http://www.kansascity.com/news/local/article320919/McCaskill-prevents-promotion-of-Air-Force-woman-general.html

  11. k fischer says:

    Not sure if it is UCI because it is a legislator, but it might make the CA a type 3 accuser if he states that one of the reasons he referred was so he wouldn’t get called on the carpet by the Mav.  Certainly, there is an appearance there and the CA ought to have to answer some interrogatories, unless he submits to an interview by defense counsel.  I have a motion for sexual assault cases in light of McCaskill’s actions in the Helms nonconfirmation to Space Command.
     
    And, I agree that POTUS statement showed an inflexible disposition towards certain offenses (Article 120) with an expressed desire towards a mandated result and was about the clearest case of UCI you could possibly have.  But, this is a different situation, but no less improper.  Kind of like when SecDef Rumsfeld got called in front of Congress for Abu Ghraib where he mentioned that somewhere a very wise defense attorney was probably taking notes.

  12. Lone Bear says:

    These comments are pretty bad, but they aren’t from his command. The MJ should call Sen McCain to the stand to determine if hehas spoken to any government officials, and abait the proceedings if he doesn’t show. 

  13. Concerned Defender says:

    BB is in hot water because of his own actions, evidence of premeditation/intent, and statements amounting to confessions and a lot of damning evidence against him.  The prosecution and outcome will have zero to do with Sen. McCain and alleging so is the standard smoke and mirrors tricks and an example of why people hate lawyers.  I’m all for fighting the good fight, but frivolous arguments are exactly that and there’s a reason why lawyers aren’t supposed to file them.  
    Easily distinguishable from Obama’s blanket statements which absolutely led to the prosecutions and convictions of otherwise innocent men who faced punishment for frivolous and merit-less allegations after having denied the allegations and the evidence was often inadequate.  We will see a slew of these overturned in the coming years. 

  14. Cheap Seats says:

    Concerned Defender,
    How is the Senator’s statement different than POTUS?  If you go back and read POTUS’ statement, he says “If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”  The most egregious part, according to MJ Marcus Fulton was the effect on sentencing.  Isn’t that the same here?  Assuming BB did give statements that leave him dead in the water on the merits, is it too far fetched that a member (without being tainted by the Senator’s comments), could say that the five years he spent as a prisoner and the effects it had on him are punishment enough?  Couldn’t they say conviction alone is the punishment?  I tend to agree that asking for dismissal with prejudice is over the top, but it is the same thing I had to deal with in prosecuting sexual assaults after the POTUS statement.  The Defense Bar was recycling the same motion in case after case.  Finally the MJs started skewering the DC if they requested oral argument, making them give a good reason that dismissal was the appropriate remedy.  They stopped asking for oral argument.  Good on the Defense for raising the issue.  They’ll lose, but they’ll get very liberal voir dire and challenges.

  15. stewie says:

    It’s different for CD because he hates BB with the blinding hot passion of a 1000 suns.  And yes asking for dismissal is over the top, but that isn’t what they are really looking for and no one thinks that’s what they actually expect to happen. As you say, this is all about shaping the ground as favorably as possible for sentencing.

  16. Lone Bear says:

    Sen McCain, a well-known figure in the military, has just made statements indicating there should be punishment or hearings are imminent.  If a member believes he is not guilty of charge, how might this impact their deliberations?  If they believe he has suffered enough during his time of torture with the Taliban, how are they now going to consider no punishment? Without knowing everything, he has a pretty good mitigation case and no punishment may be the appropriate sentence, but Senator McCain is trying to keep that from happening by making statements that have a coercive effect on the proceedings.  Issues like this may be why people hate lawyers, but they are also why people need them. 

  17. k fischer says:

    The difference between the statements by POTUS and the statements by Senator McCain is that POTUS is the Commander in Chief who can be a General Court Martial Convening Authority, and his picture is at the top of each and every military company, battalion, and Brigade offices’ set of pictures showing the Chain of Command.  Therefore statements he makes can be UCI, notwithstanding his position as a civilian.  He is a person who can actually convene a Court-martial under Article 22, so therefore, any statements made by POTUS that could influence any finding or sentence in a proceeding should be avoided.
     
    Senator McCain, on the other hand, is not in the chain of command, nor can he convene a Court-martial.  His actions, however, can influence decision makers if he threatens to hold a hearing if BB does not face a Court-martial in that the Convening Authority becomes a type 3 accuser because he has a personal interest in referring the case if he is concerned about getting hauled in front of Congress for his decision not to refer the case to a court-martial.
     
    However, even though these two statements deal with different articles of the UCMJ, both statements are improper.  In fact, I cannot reconcile the difference of impropriety between McCaskill’s actions and statements regarding sexual assault prosecutions and Senator McCain’s threats if the issue is influencing military justice, i.e. do you believe that is ever proper for a Senator to withhold promotion confirmation based on an action they took in a Court-martial?  My answer is…………..hmmmmm………..that is an interesting question……..   Why allow Senators to confirm promotions but prohibit them from asking questions about judicial matters if that is a part of their job description?
     
    I don’t like BB being able to have the same honorable discharge as me, but I would rather his conduct be dealt with the fairest system, by those who are free of concern for personal gain or detriment.  And I don’t like rapists walking free, either, but I would prefer their conduct be dealt within the fairest system, by those who are free of concern for personal gain or detriment, as well.  It’s all about consistency.

  18. DCGoneGalt says:

    POTUS is CinC but any Senator (esp. one with the position of Sen McCain) holds a helluva lotta weight on the promotion of GOs.  McCain isn’t some schmoe off the street or just any Senator, he’s the Chairman of the Armed Services Committee and a heavy hitter in military legislative circles.  Dismissal is insane (especially if in voir dire the members say they’ve never heard of any comment on the case by McCain (which I think will be the case for the majority) but I say “good luck” to finding a panel that hasn’t formed some sort of opinion on this case by now.  Maybe they can find some Air Force missileers who were locked underground in a silo in North Dakota for the past three years?

  19. Concerned Defender says:

    When was the last time someone was accused and convicted of AWOL or desertion or misbehavior, having pled Not Guilty and denied the allegations, and denied cross exam of the evidence/witness against them at an ART 32?  I’ll await the long list…
    Meanwhile comparing POTUS on Sex Assault UCI and McCain on this is apples and baseball.  The military routinely “finds out” about this only due to wildly false accusations that only survive scrutiny due to the cowardly career minded OSJA members who are too afraid to “not take sex assault seriously” because of the actual negative career actions taken against those that fail to tow the party line.  It’s not a hypothetical – it has happened and continues. 
    As for captivity being enough punishment, when was the last time that a bank robber injured during commission of his crime was granted mitigation for his foreseeable injuries?  Pretty foreseeable that when you go off the reservation downrange you’ve got a good chance of being taken captive and it ain’t no vacation…  I don’t think it offers any mitigation, nor should it.  If you don’t want to get shot during an armed robbery, then don’t commit an armed robbery.  Likewise, if you don’t want to be tortured, then don’t desert.  Seems pretty simple.  

  20. Vulture says:

    Just to set the stage correctly here; J McCain’s statements did not occur in a vacuum.  Congressional leaders were upset already that The President released these prisoners without their approval.  It was only in the recoil of “We let these murderers go to get back one deserter” struck as a political issue that the clamor for Court Martial became so pronounced.  A UCI motion was inevitable.

  21. DCGoneGalt says:

    Well, maybe McCain’s comments are balanced by POTUS’ Rose Garden ceremony with Bergdahl’s parents.  I do hope that entire ceremony makes it into sentencing.

  22. Joseph Wilkinson says:

    I do hope that entire ceremony makes it into sentencing.
     
    Would it be relevant?   I don’t see how it’s either mitigating or aggravating.  (Now I understand the defense wants to use it to argue that he was “accepted back” so that he can’t be prosecuted for desertion…but that’s merits not sentencing.)

  23. DCGoneGalt says:

    I agree it’s likely not relevant as extenuation or mitigation but I think the video with POTUS could be used by the defense in their sentencing case as RCM 1001(a)(1)(C) rebuttal depending on the parade of horribles put on by the government.  

  24. Joseph Wilkinson says:

    How?   Rebuttal might be, “You say I was disloyal but here is proof of my loyalty,” or, “You say I’m lying about how Afghan Muslims let women and children guard the male prisoners, but here’s a cultural expert that says they do it all the time,” or “You say I’m lying about my daring escape attempts, all executed while suffering three and a half years of uncontrollable diarrhea, but here’s a medical expert who says it’s perfectly plausible.” 
     
    The ceremony is all about what other people said and did (including the President), and not about any attributes of Bergdahl himself.  “Other people who don’t know me were very generous to me” isn’t mitigating the way I understand the term, even if those other people were very prominent.  So I don’t see how it’s relevant on sentencing.  
     
    Checking the MCM I see that “constructive condonation” is a ground for dismissal rather than a defense to be raised at trial, so I don’t see how he gets to put it in even on the merits….of course I expect this to be a judge alone case, which means the factfinder will likely have seen it on the motion to dismiss, so he’ll know about it anyway. 

  25. k fischer says:

    I think National Security Advisor Susan Rice would be a much better character witness regarding his military service in that she told the press that Bergdahl served with honor and distinction.  As the National Security Advisor, I would imagine that when she says something you can take it to the bank. and the panel members should probably hold her in high regard. 

  26. DCGoneGalt says:

    Mr. Wilkinson:  Line of reasoning goes somewhere along the lines of “If what I did was such a risk to the unit and operational readiness, then why is POTUS celebrating my release as a hero with my parents in the Rose Garden?”
     
    k fischer:  I wonder if Susan Rice has been asked for a sentencing letter?

  27. Joseph Wilkinson says:

    I don’t see that…it’s the functional equivalent of, “I met some guy on the street who says I’m great.”  “And does he actually know you?”  “No, he just read about me in the paper.”  “Okay, thanks very much.  Not admissible.”  “But he threw me a big party with a cake!  I want you to see the cake.”  “Still not admissible.” 
     
    The fact that the person is a high-ranking officer, or even commander-in-chief, doesn’t get you away from the fact that he doesn’t have personal knowledge that adds anything to the case. Let’s leave the celebrity endorsements to politics, where they are cringeworthy enough.

  28. Vulture says:

    I am with JW.  As I recall, the large number of MIA’s from the Vietnam war put the Congress to make it a requirement for the President to recover as many as possible.  It was all the rave in the mid eighties with people concerned that there were still POW’s there.  The president did what he was supposed to do by getting BB back alive.

  29. k fischer says:

    “The fact that the person is a high-ranking officer, or even commander-in-chief, doesn’t get you away from the fact that he doesn’t have personal knowledge that adds anything to the case.”

     
    Oh! Come! On!  Like a Brigade Commander has never gotten on the stand to talk about what a dirtbag PFC Snuffy is where his only interaction with Snuffy is maybe at a Brigade run or Division Change of Command.  Besides, you are arguing weight, not admissibility, JW.   Wait….nevermind…..you’re arguing admissibility……lack of foundation based on knowledge…..deeerrrr…..
     
    I’m sure NSA Susan Rice did a ton of research on Bergdahl’s service when she made that statement to 3 different networks to ensure its veracity.  After getting hung out to dry on that whole Benghazi thing, certainly she followed the old saying, “Fool me once, shame on me, fool me twice…..I won’t get fooled again!”

  30. Joseph Wilkinson says:

    I can see that your comments exude great and sincere certainty on this point. “And life is a glorious cycle of song…”

  31. Concerned Defender says:

    For such a letter from Rice on sentencing, BB has been convicted.  At which time the defense would be asking to relax the rules of evidence.  If I were the prosecutor, I’d have a few tricks up my sleeve licking my chops for those relaxed rules of evidence.  Letters from parents whose sons died during the BB searches, or from the diverted assets away from others, or due to the extended deployments for many months looking for BB.  The Soldiers who suffered extended deployments, danger on extra missions, friends dying…   Perhaps also the aggravation of the total price tag of the millions and millions of dollars wasted looking for him.  The information on the capture, reason for detention, and ultimate release terms of the 5 Taliban terrorists traded away.  Let’s not forget those terrorists KILLED Americans (directly or indirectly), and will surely do it again. (Note that in June it was announced that 12 other Gitmo released terrorists were involved in new terrorist attacks on Americans! https://www.washingtonpost.com/world/national-security/about-12-released-guantanamo-detainees-implicated-in-deadly-attacks-on-americans/2016/06/08/004d038e-2776-11e6-b989-4e5479715b54_story.html).  Oh we could come up with a long list of aggravation once those evidence rules are relaxed.
     
     
     

  32. Joseph Wilkinson says:

    CD, Judge Nance is very strict with prosecutors, so don’t expect too much fancy stuff whether the rules are relaxed or not.  But as you know, a very strong sentencing case can be made without the rules.  
     
    Stars and Stripes said that no one died on a specific mission to find Bergdahl, but that a Navy SEAL did lose his leg on such a mission.   Testimony from that guy, Bergdahl’s disloyal letter to his father, his incredibly arrogant answers in the Dahl interview, and (as I hope) good rebuttals of the hard-to-believe parts of his story…it won’t be hard to make the point even in front of the strictest judge.

  33. Joseph Wilkinson says:

    err, can be made without the rules being relaxed.  (!)

  34. stewie says:

    If the evidence wasn’t provided on the merits (losing a leg) then it’s not guaranteed to come in on sentencing. Because you’d end up with a trial within a trial on whether Bergdahl’s leaving was a proximate cause of the lost leg.
     
    His letter to his father? Relevant how? What he said in an interview certainly could be relevant.
     
    CD, you clearly aren’t tracking that just because the defense gets the rules relaxed does not mean that the government does. The MJ can relax for the defense and not the government, I’ve seen it multiple times.
     
    And relaxed rules are still not going to allow in aggravation that isn’t directly relating to or resulting from, it’s not a carte blanche to skew the sentencing process which is fundamentally a defense process.

  35. Joseph Wilkinson says:

    His letter to his father? Relevant how?
     
    Read the text of it and see!   “I am ashamed to be an American. And the title of US soldier is just the lie of fools…The US Army is the biggest joke the world has to laugh at.  It is the army of liars, backstabbers, fools, and bullies…I am sorry for everything.  The horror that is America is disgusting.”  And he wrote that right before he deserted (his father wrote back, “Follow your conscience.”  Then he deserted.)
     
    Thus, it shows that the desertion is not temporary insanity, misplaced idealism, loyalty to the Constitution and the Statue of Liberty (as he tries to paint it in the Dahl interview), or any other such thing, but an act of supreme disloyalty to his country as well as the Army.  Of course it’s relevant and highly aggravating.   (Motivation doesn’t matter on the merits…you can have “intent to shirk” even if your motives are very noble…but motivation can matter very much at sentencing.)
     
    If the evidence wasn’t provided on the merits (losing a leg) then it’s not guaranteed to come in on sentencing. Because you’d end up with a trial within a trial on whether Bergdahl’s leaving was a proximate cause of the lost leg.  
     
    Nothing wrong with that!  

  36. Vulture says:

    And then the dad was on display in the rose garden with the President. 
    Sick.

  37. stewie says:

    I don’t think what he said to his dad has any bearing on whether or not he was temporary insane (I don’t think he was, I do think he has serious mental health issues), or loyalty to the Constitution or misplaced idealism. I’d need to see the entire letter, in context. If he made statements not related to his father but related to his mindset prior to leaving, that certainly could be relevant at sentencing, of course, that opens up other things he may have said or done that might be exculpatory.
     
    It may be disloyal to the Army, but that’s not necessarily being disloyal to the country nor is it necessarily evidence of desertion. I suspect the case is more complicated than that.
     
    I don’t think a judge is going to want to engage in a trial within a trial during sentencing. Whether or not someone maybe lost their leg while maybe on a mission that included looking for him is a bit problematic from a proximate cause front. I doubt that gets folded into the equation by the MJ.

  38. Alfonso Decimo says:

    CD’s original comment at the top of this string raises an excellent issue. Less-experienced defense attorneys are usually unaware of the dangers (to their client) of overly-zealous motions practice (and other overly-zealous practices). It may not be unethical, or frivolous, impermissible, or contemptible, but it may still be simply vexatious and futile. As CD puts it, an attorney can lose credibility with the Court, but there’s also the danger the defendant may be punished for the sins of his/her lawyer. See, Making Defendants Pay for the Sins of Their Lawyers, 78 N.Y.U. L. Rev. 2103 (2003). We all know very vexatious attorneys and there’s no way to convince them to be reasonable, especially if their self-view is that they’re being “zealous.” I am glad to see the issue raised, particularly by defense-oriented attorneys like CD and Zack. In my view, new defense attorneys need to learn to balance zeal with their duty to be officers of the court, which requires civility and decorum. Never is that duty more easily balanced than when considering a motion that is vexatious and futile.

  39. stewie says:

    Alfonso, would agree that before Fosler, a motion to dismiss a 134 offense because it didn’t plead a terminal element would have been considered “vexatious and futile?”

  40. Joseph Wilkinson says:

     
    It may be disloyal to the Army, but that’s not necessarily being disloyal to the country nor is it necessarily evidence of desertion. I suspect the case is more complicated than that.
     
    Read a little closer. “I am ashamed to be an American. . . I am sorry for everything.  The horror that is America is disgusting.” 
     
    It’s as disloyal to the country as you can get, and it utterly destroys the idea that this desertion was a patriotic act.  Nothing “complicated” about it.   The fact that he left his unit on purpose in a combat zone, with knowledge that they were in a combat zone, establishes desertion under U.S. v. Kim and U.S. v. Huet-Vaughn without the need for anything in this letter….the letter’s important for aggravation, much less so for merits.  Nothing complicated about that, either.
     
    (I don’t think he was, I do think he has serious mental health issues),
     
    Don’t mistake “schizoid personality disorder” for “schizophrenia” even though they’ve got a syllable in common.  The personality disorder is about “a lack of interest in social relationships, a tendency towards a solitary lifestyle, secretiveness, emotional coldness, and apathy.”  He reports having a girlfriend before he went to Afghanistan so presumably he was not a really severe case. 
     
    Nothing I’ve read about the personality disorder suggests that it somehow mitigates a desertion offense…people with personality disorders can be quite intelligent (and Bergdahl seems to be above average though hardly a genius) and perfectly understand what they were doing.  A swindler may turn out to be a sociopath (another personality disorder) but that does not mitigate his offense.   And except for his “adjustment disorder”…i.e., he got stressed at work…at Coast Guard boot camp, that’s the only diagnosis we have heard about.
     
    I don’t think a judge is going to want to engage in a trial within a trial during sentencing. Whether or not someone maybe lost their leg while maybe on a mission that included looking for him is a bit problematic from a proximate cause front.
     
    I think you’re greatly exaggerating the evidentiary argument as a “trial within a trial.”   It’s a pretty simple argument.   It’s very, very foreseeable that if you desert in hostile territory, you’ll get captured.  It’s extremely predictable that people are going to come looking for you, and are going to get hurt.   If Stars and Stripes was right, this SEAL was on a specific mission to look for Bergdahl. 
     
    You don’t need lots of witnesses to put the issue squarely before the judge.   Just have the SEAL himself testify (or provide an affidavit) about the mission and how he lost his leg, and maybe put in part of Bergdahl’s interview (about how he was worried about being captured and adopted “native disguise” to avoid it).   Then argue the legal implications, and the judge can make the call as to whether this is the “direct and immediate result” of the desertion.  Judges aren’t afraid of simple evidentiary arguments like that.   

  41. Saul says:

    JW – you say it is “extremely predictable that people are going to come looking for you…”  and you’re right, but isn’t it even more on point that creating a DUSTWUN was his intent when he left the COP? 

  42. Saul says:

    (is there a way to edit a reply?)  and BB knew (or should have known) that the unit’s standard response to a DUSTWUN would be to look for him?  Basically the difference between reckless disregard / gross negligence and intent. Maybe it doesn’t matter much in the end.

  43. stewie says:

    Let’s use a hypo JW: If America say nuked a country for no good reason, would it cause you shame as an American? I would hope so. I would think so. That wouldn’t make you “disloyal.” I think there’s a lot of “I hate this guy so I’m going to ascribe the worst possible motivations and thought-processes to this guy at every opportunity” going on here.
     
    I’m sure portions of the letter may be used, but I suspect there are other portions and other things he’s said or written which give context.
     
    I didn’t say he has schizophrenia. I have no idea what he has. What seems clear to me is that he has some serious mental issues. What that ends up meaning I don’t know, that’s why they have experts. If it is schizoaffective disorder, and we are armchair psychatristing you missed the next line in wikipedia which said ” Affected individuals may simultaneously demonstrate a rich, elaborate and exclusively internal fantasy world.” 
     
    Or “Schizoid personality types are challenged to achieve self-awareness and the ability to assess the impact of their own actions in social situations.”
     
    Or “This means that it is possible for schizoid individuals to form relationships with others based on intellectual, physical, familial, occupational, or recreational activities as long as these modes of relating do not require or force the need for emotional intimacy, which the affected individual will reject.” (which means that yes, he could have had a girlfriend).
    There’s more, but it is apparently a complicated and “poorly studied” disorder.
    Regardless, he isn’t/wasn’t operating on all cylinders, and that IS in fact “mitigating.” It may not be exculpatory of course, but it certainly can be mitigating.
     
    “If Stars and Stripes is right.” And if they aren’t then it’s not causally connected.  If they are out on another mission there is no causal link. And if they happen to be looking for him WHILE on another mission (i.e. keep an eye out for him) the link there is too attenuated.  At a minimum, if I were a MJ I would need to see evidence that they are on a mission solely to find him, and that on that mission someone was injured.  That’s at a minimum.
     

  44. Concerned Defender says:

    So is it the position of some that the dozens of Soldiers who said they were out on missions looking for him are lying?  Is it not indeed the mission to go and find and recover the mis/cap Dustwun Soldier?  Anyone who has served knows that all other missions become secondary to finding the mis/cap; at least in the short term.  
    His letters home show intent.  The timing and exact language perhaps is inflammatory needlessly but the fact remains that BB wrote it so it’s relevant to state of mind and intent.  Conversely if it were favorable to him and showed his patriotism, selfless service, commitment to duty, and demonstrated he had no intent to ever go missing, it would be argued it should be considered to eliminate intent and state of mind to stay.  In spite of being highly prejudicial, it is highly probative for the merits and the aggravation.  

  45. stewie says:

    Soldiers say stuff. They may believe what they are saying. They also may be wrong, or not have complete information, or have inaccurate information. Doesn’t require a binary lying or not lying analysis. That’s an emotional attempt to win an argument that has no logical basis.
     
    So your argument is that no matter what mission they were assigned, because he was missing, and because they were always supposed to keep an eye out for him, that was the primary mission so no matter the purpose of the mission, the location of the mission, it doesn’t matter?
     
    This boils down to you and others being highly offended by this guy and like I said looking for the worst possible interpretation of everything.

  46. Joseph Wilkinson says:

     
    If America say nuked a country for no good reason, would it cause you shame as an American? I would hope so. I would think so. That wouldn’t make you “disloyal.”
     
    Things like that might very well make me disloyal.  It would just be a grand justification for my disloyalty.  And if I deserted the Army and my country in response to it, that would certainly be a disloyal act, whether or not justified.   And if I came back and tried to pretend it was really an act of Deep Loyalty, that would be despicable dishonesty.   Likewise, if the missus tried to sacrifice me to the Horned God Metraton, she might well break the ties of loyalty that bind us right now, and I would do something disloyal like leaving her.   But she has repeatedly assured me she has no plan to do this, so we’re fine.
     
    As Kipling put it:  “If England was what England seems / And not the England of our dreams / But only putty, brass, and paint / How quick we’d chuck ‘er — but she ain’t!”  
     
    But to get the full picture in Bergdahl’s case, you have to look at what was going on right before, as indicated by the Dahl interview.  Before Afghanistan, Bergdahl been treated like a “stud” because he did lots of PT and was planning to join special forces.   Then he and a bunch of other Soldiers got caught without their armor outside the wire, contrary to the BC’s orders.   And they all got yelled at and punished for disobedience with Article 15’s.    And that is when he suddenly realized that “the horror that is America is disgusting” and “the title of U.S. Soldier is just the lie of fools,” and walked off the FOB into the arms of the enemy.  
     
    In short, this is not a man who saw the U.S. committing terrible war crimes and lost his innocence or his patriotism because of it.  This is a man who was fine as long as he was treated like someone special…but when he got punished like another dumb Joe for doing “dumb Joe stuff,” he got a major case of The Butthurt, and put the blame on everyone but himself.  (Possibly also affected by the knowledge that his Article 15 would reduce his chances of getting into the Q course and so foil his personal ambitions.) 
     
    That’s what the evidence tells me.   If you like, read the interview and see for yourself (it’s also at the Bergdahl Docket website).  Who knows?  Maybe you’ll spot something I missed, and provide an informed perspective that’s more in his favor.
     
     
    I think there’s a lot of “I hate this guy so I’m going to ascribe the worst possible motivations and thought-processes to this guy at every opportunity” going on here.
     
    In my case, there’s a lot of “I read the evidence and follow what it says.”   And “I don’t drink the defense Kool-Aid without reading the ingredients.”   Ad-hominems are a waste of time.
     
    I didn’t say he has schizophrenia. I have no idea what he has.
     
    So, read the evidence and find out!   The “Bergdahl Docket” website has the results of his Article 32 hearing, and one of the attachments is his sanity board result, which says, Schizotypal Personality Disorder.   Not Schizoaffective disorder, or Schizophrenia, or anything else that begins with “schiz.”  It’s the personality disorder.  Schizoaffective disorder is not relevant to this case.  Schizotypal personality disorder is.  
     
    (Now I will admit that when I read the report before, I misremembered “schizotypal” as “schizoid.”   But from the wiki I see it’s the same line of goods….”extreme discomfort with maintaining close relationships with people”…and not trouble with distinguishing reality from fantasy as in schizophrenia, or the things you talked about with schizoaffective disorder.  Anyway, I got there by reading the evidence, not by making stuff up.)

  47. Joseph Wilkinson says:

    <I>JW – you say it is “extremely predictable that people are going to come looking for you…”  and you’re right, but isn’t it even more on point that creating a DUSTWUN was his intent when he left the COP?  BB knew (or should have known) that the unit’s standard response to a DUSTWUN would be to look for him?   </I>
     
    Well, that’s what <I>he</I> says he was doing…now that he is back and facing possible punishment.   But yes, that’s why I suggested that the Dahl interview would be part of the evidence in establishing that the SEAL’s injury is relevant aggravation.   Because it shows that Bergdahl himself recognized the foreseeability of this.  
     
    (I wouldn’t let the Defense trap me into agreeing the test was wholly subjective.   If it’s a direct and immediate result, it’s a direct and immediate result even if the convict himself ignored this reality.  But his statement would certainly be useful evidence in establishing its relevance on sentencing.)

     

     
     

    <I>Basically the difference between reckless disregard / gross negligence and intent. Maybe it doesn’t matter much in the end.</I>
     
    The “intent” (for the merits) is a no-brainer here (the specific intent to desert is very easy because his unit was already in a combat zone when he left it; it might be a different matter if he’d left before the deployment was announced).  But his full state of mind sure does matter for aggravation. 

  48. Joseph Wilkinson says:

    Dang, did I really forget not to use normal html tags here instead of the buttons?   To your other question, the only way I know to edit is to ask the siteowners very nicely to fix a mistake.  Sometimes they will.

  49. Concerned Defender says:

    I want to address the analogy laid out about using nuclear weapons.  I assume from the context that would be considered one big war crime that occurs WHILE you are serving,  presumably in a theater of operations, rising to the level that you write home and declare as BB did, and abandon post.
    That scenario is easily distinguished.  BB enlisted after the “illegal wars” (not my belief by the way) of OIF began in 2002 and OEF in 2003.   BB enlisted in the Army in 2008 – so these “illegal” wars were ongoing for 5-6 years and he was well aware he would be joining and likely participating.  
    It’s not as though he had been serving, and THEN the U.S. committed some grand scale war crimes akin to using nuclear weapons (again playing out the analogy).  He was serving, all was good, and he got into some trouble, and then denounced his patriotism and made pretty unpatriotic statements.  So what changed? Why was the US suddenly so bad as to condemn it and all Soldiers, the military, the nation?  
    Did he witness en mass war crimes justified by our nation?  No.  He was disillusioned and disgruntled.  
    This is not the same as serving and the nation using (illegally?) nuclear weapons.  Perhaps in that case, a representative % of Soldiers would resign of desert.  But that BB was the ONLY one to do so under such individualistic circumstances is telling.  It was in his mind, not anyone elses’.

  50. stewie says:

    So you tell me not to drink the kool aid then you say well the sanity board says he has SPTD so that’s it then. Sanity boards are not the end all be all, they are the government’s view and they can be just as biased and just as wrong as you likely think whatever the defense doc is going to say he has. I have seen sanity board’s say someone who is seriously disturbed is just “mildly depressed.”  That’s why we have a battle of the experts. So no, I’m going to drink EITHER side’s kool-aid. And you linked to a different wiki page and no it’s not the same type of goods at all.
     
    The GOV says he is on the lightest end of the schizoid spectrum, surprise! I’m sure the defense will say he’s on the far end of the schizophrenia spectrum, also surprise! What the truth is will ideally be borne out at trial. So practice what you preach and stop drinking the gov kool aid. Between the two of us, one of us recognizes there are two sides, and one of us has decided based on what side already. But I’m the one drinking the kool aid.
     
    And the idea that leaving your post is “deserting your country” is a bit overwrought. It certainly is “deserting” in the sense of the military meaning of the word. It could certainly mean “deserting” your unit. People desert for all sorts of reasons however, and many of them have nothing to do with disloyalty to country. Even if we buy your gov argument that he wasn’t remotely mentally troubled but just spoiled kid who left when he didn’t get what he want (of course, you’d have to be an idiot or have something mentally wrong with you to leave knowing the dangers of where you were at, but that point keeps getting ignored) THAT isn’t in and of itself disloyalty to country, it is what it is, a spoiled kid unhappy and making a dumb decision because of it.
     
    The point is, MOST people desert because they are unhappy in the Army or because of outside pressures (e.g. family). Worst case that is what this kid did, just in a very poor location. There is no evidence that he did it because he “hates America” or because he wanted to “aid the enemy” or because he wanted people to “die looking for him.” and as you say, FULL state of mind matters on sentencing…and not just for aggravation.
     
    I have a feeling you and CD are going to be quite disappointed by the ultimate sentence in this case. It may well included a discharge and jail time, but not nearly as much as I think you two will think is appropriate.
     
     
     
     
     

  51. stewie says:

    CD the analogy has nothing to do with what BB did. The analogy was an extreme example to show that one can be “ashamed” of America without being “disloyal” to America. I was “ashamed” we made the stupid decision to invade Iraq. Worst foreign policy decision of this country’s history, by far. I still went when I was told obviously. But that “shame” didn’t make me “disloyal.”

  52. DCGoneGalt says:

    stewie:  I agree with you that they’ll be disappointed on the sentence . . . but I honestly see either no confinement, either no punishment or a stand-alone DD from a military judge. 

  53. stewie says:

    That would be my guess as well, but if the GOV puts on significant aggravation evidence and the DEF falls down on that (not that they should, it’s really their whole case) then I could see a chance for some amount of jail time.
     
    I’m not sure I see no punishment as a likely sentence. It’s possible, but given the vehement reactions from some, I’ve widened my range of the outcome slightly to make no punishment about as likely as heavy punishment, which is to say, possible but not likely.
     
    I’ve always assumed this was a JA case because you’d be risking things a lot more with a panel.

  54. DCGoneGalt says:

    I can honestly see the defense wanting to get into the treatment he was given during captivity in sentencing  . . with some of that material (perhaps including information surrounding the captivity unknown even to Bergdahl) being classified and not released by the military . . . and therefore the court ending in a sentence of no punishment because he would be unable to put on a sentencing case. 
     
    Under different facts it has happened before in a high-profile case . . . Air Force JAG Col Murphy Case .

  55. Joseph Wilkinson says:

     
    Sanity boards are not the end all be all, they are the government’s view.
     
     
     
     
    They’re evidence. You said you had “no idea what he has.” So I pointed you to some evidence. If you still have “no idea” what he has, it’s because you shut your eyes to the evidence. What you’re telling me is that there could be some mysterious something out there, other than what the evidence shows, that mitigates his case. I know that. But it doesn’t affect my view of the case. I base my views on evidence, not invisible unicorns.  
     
     
     
     
    Also, I got the result from the “Bergdahl Docket” website, which was put up by the Defense to put their client in the best possible light. So if there is a diagnosis out there that’s more favorable to him, they can put it up anytime they want.   They haven’t put it up, which suggests it isn’t there.
     
    And sanity boards are not really the “government’s view” in the sense that the board psychiatrist consults with, or tries to help, the Prosecution.   They’re as independent as anything I’ve seen in the Army.
     
     
     
     
    The GOV says he is on the lightest end of the schizoid spectrum, surprise! I’m sure the defense will say he’s on the far end of the schizophrenia spectrum, also surprise!
     
     
     
     
     
    Wrong on both counts. The Government, as far as I know, hasn’t commented on the diagnosis at all, and the Defense hasn’t put up anything to indicate schizophrenia. That’s pure speculation on your part, and you have no evidence for it. Also, if schizotypal personality disorder is about a difficulty in forming close relations with others, and Bergdahl reports having a girlfriend before he went to Afghanistan (as he did in the Dahl interview), that suggests he’s not all that severe a case even of that.
     
     
     
     
    And the idea that leaving your post is “deserting your country” is a bit overwrought.
     
     
     
     
    Depends on the circumstances. In this case, he wrote a letter showing that he hates his country, then walks off the FOB in a combat zone into the arms of the enemy. In those circumstances, “deserting your country” is a perfectly legitimate description. In other circumstances, it wouldn’t be. It doesn’t matter why “most people” desert. What matters is why this guy deserts.
     
     
     
     
    There is no evidence that he did it because he “hates America.”
     
     
     
     
    Yes there is. His letter is that evidence. I’ve already quoted it twice to you in this thread and boldfaced the anti-American language. If you shut your eyes to it, you can pretend it isn’t there, but it is there and it is evidence.   Don’t shut them too tight – you might strain your facial muscles.
     
     
     
     
    I have a feeling you and CD are going to be quite disappointed by the ultimate sentence in this case.
     
     
     
     
    I agree and have already said as much.
     
     

  56. Joseph Wilkinson says:

    P.S. – “I am embarrassed by [bad decision by U.S. gov’t]” or even “I am ashamed of [bad decision by U.S. govt]” or “I am ashamed of [bad U.S. leader who makes us look bad]”  is way, way, way different from “I am ashamed to be an American,” let alone, “the horror that is America is disgusting.”   The latter two, and especially the last, imply an outright hatred for the country, and not simply a strong disagreement with some policy or another.   Which, in any case, doesn’t fit the sequence of events in Bergdahl’s case as I pointed out above.

  57. Concerned Defender says:

    I can’t see his injuries proximately, directly, and foreseeably resulting FROM HIS OWN MISCONDUCT having any mitigation weight.  They really shouldn’t be part of the sentencing, but the MJ should allow it just the same.  
    Nobody here has explained in simple terms how a bank robber could get mitigation for the injuries sustained when the bank security shoots him in the spine and paralyzes him.  I recognize we’re humans and surely being paralyzed is a heavy punishment for a bank robbery, but I’d also bet that the bank robber gets a sentence on par with what a non-injured robber gets.  
    I’m not “happy” or “sad” about any of this and I have no dog in the race.  My primary concern is “defending” service members; but part of that is defending the integrity of the system and service members who get “screwed” by the likes of BB who shirked his duty, screwed over his brothers, and is now wearing an undeserved rank and stands to get a payday windfall, purple heart, etc. and unjust enrichment.  That is bad for the service and morale, which alarms me. 
    He’ll get convicted but it’s hard to say what he’ll get.  I agree a JA case is probably the safest unless they’re going for Panel Nullification, or some trickery in hopes a panel cannot be seated, or a challenge is not granted.  The MJ would likely be very liberal in granting challenges.  I’d say a panel is very risky.  The conviction is a forgone conclusion in my view, so the exposure is far greater on sentencing with a panel.  
    In prior threads I (and I believe JW but cannot speak for him) have said a sentence should be commensurate with removing his youth, perhaps 2 decades in my view, and punitive discharge, and ensuring he doesn’t get a financial windfall from 5 years of back pay, and of course reduction to E1 as an operation of law but also as a adjudged sentence.  
    I suspect he’ll get something in line with a decade in confinement (minus some construction for credit for captivity), reduction, and punitive discharge.  I’m not concerned with his long term medical care since he will have it for the duration of his time in confinement as well as the year of administrative leave after confinement during his appeals.  That should be ample, given he seems to be a solid performer now while serving since he was just given some award walking around in his uniform with E5 rank (which also is sickening). … 
    Assuming he is convicted, the crimes are far worse than what I’ve seen result in confinement and/or punitive discharges.  So that undermines rule of law and justice, really.  I had a client steal a $400 rifle optic to pay some bills and receive some confinement and a punitive discharge.  I can’t fathom deserting your unit and not receiving some significant punishment.  
     
     

  58. Joseph Wilkinson says:

    CD, you might consider it under some circumstances.   Suppose one of your clients assaults another Soldier, who turns out to be a combatives expert and beats the crap out of him.  The unit court-martials him.   On sentencing, you might try telling the sentencing authority, “Sir, if you’re looking at deterrence, I’d say this crime has already been deterred.  People can look at that shiny black eye and that limping walk and say, you know what, let’s don’t start fights with guys we don’t know.   And if you’re looking at rehab, as he already told you through his missing teeth, he doesn’t mean to be trying that again.”
     
    I don’t like that argument in Bergdahl’s case because most of the evidence of his terrible, terrible suffering consists of his own uncorroborated word.  (And some of it is pretty hard to believe…I’d still like to know how you survive 3 1/2 years of uncontrollable diarrhea without dying of dehydration, unless your captors are treating you much better care than he lets on.)  We have only two things I know that really support the suffering: a leg injury of some kind, and a diagnosis of PTSD from his sanity board.   So he suffered something, but we don’t know when or for how long.   And once his case is through and he’s out of the service, he’s perfectly free to change his story completely, and praise his captors for being so much better than those horrible Americans, and for their kindness, and possibly for leading him to the True Way of Salafi Islam, or whatever else he likes.   His post-captivity story about his motivations doesn’t match up with what he was writing at the time, so I don’t trust him to stick to a story once he’s free.
     
    I would be utterly shocked if the Defense went for a panel in a case like this, and I’m afraid the judge won’t give near as much as we’re talking about.  However, if the Government gets the conviction on Misbehavior Before the Enemy — and they made a pretty convincing argument at the 32, though I haven’t looked up case law on the subject to see if it fits — he might pump it up more than I’m hoping right now.   Misbehavior cases are very scarce indeed, so I don’t think any of us are speaking from experience when guessing at the sentence for that.

  59. stewie says:

    1. Or the defense is just waiting until trial. Do you think they don’t have a doc?
    2. Your defense of sanity boards is quaint but not based on anything I’ve seen. They don’t “consult” with the GOV but weird how they routinely come up with the accused having rather mild mental health issues, if at all (unless it’s a chapter case and the GOV needs the Soldier out in which case they come up with something serious enough to effectuate that).
    3. The GOV is going to use the sanity board diagnosis. You JUST listed it as “evidence” yet when I say GOV will pounce on that “evidence” you say “wrong.” Make up your mind. Either it’s evidence (and given the voluminous nature of your assertions in prior posts about the mildness of his affliction and what that means you think it is and feel free to comment on it so why wouldn’t the GOV?), or it’s not. Let me know when you’ve picked one.
    4. “Having a gf” does not mean he can’t have a serious mental illness. “Difficulty” forming relationships does not mean “inability” to form relationships. This is one of many examples of your bias here.
    5. Writing a letter about the “horrors of America” or “shame of America” could be done by Michael Moore. I don’t think he “hates America” either. Neither two of those statements says nearly as much as you are trying to make them say.  I also don’t judge folks by one letter written at one point in their lives, and neither will the MJ.
    6. Your last post shows what is going on here. You think he’s lying about his capture. You barely concede he suffered “something” yet clearly seem to believe he was or is actively pro-Taliban and is a secret Muslim convert just waiting for the trial to be over to proclaim his love for radical Islam…which colors the rest of your analysis, just like CD.

  60. Philip Cave says:

    I got the result from the “Bergdahl Docket” website, which was put up by the Defense to put their client in the best possible light.

    Where’s the advocacy?  It seems to be merely a posting of various filings and decisions, consistent with what you might get if the military was on PACER, and what you might find on the Army FOIA pages related to Bergdahl.
     

    Never is that duty more easily balanced than when considering a motion that is vexatious and futile.

     
    Yes, I disagree–a bit.
     
    What some might consider vexatious and frivolous litigation may well be good litigation practice.  And I would not discourage trial defense counsel from raising issues, regardless of how the appellate courts have already decided the issue.  Fosler is of course the best and most recent example of how things change and the possibility they do not stay the same.  The CAAF grant in McClour is just another example.
     
                I remember well reporting to Navy Code 45 in 1991.  There were two issues of substance litigated over the next few years which I’m certain the gubmint thought were vexatious and frivolous.  There were hundreds of briefs filed.  NMCCA and CAAF denied relief, until CAAF granted on the issues, heard the issues, and issued opinions. 
                (Teaching point.  Just because you lose the first time, the second, or more, keep raising the issue.)
                Readers will be aware that ultimately the Supremes granted certiorari on the issues which challenged the appointment of military judges and the lack of fixed terms of office for military judges.  The Supremes decided against the client (and the several hundred trailer cases).  But, the Coast Guard and Army changed their practice, and some can argue that the litigation focused attention on increasing professionalism in military justice.   See Weiss v. United States.  Mr. Fidell was the lead instigator of the Graf issue, and My Liege the other (he deserves all the credit).
     
                We had an attorney in the office who gave special attention to post-trial processing of cases.  He gained a reputation with the prosecution of being “vexatious and frivolous” for raising all these frivolous post-trial issues.  But, an analysis of this particular lawyer’s cases showed that he got relief, sometimes quite substantial in about 40% of his cases.  Hardly vexatious or frivolous to the individual appellant.  We all of us have read cases about problems with SJAR’s and post-trial processing, including sometimes acerbic appellate decisions about the lack of attention to detail.  Major GW was our go-to person because he’d developed the tenacity and insight.
                I have been litigating the Talkington issue for a while now.  My motion addresses Talkington and the reasons why I think it is wrongly decided, or at least not dispositive.  Sure, judges aren’t ruling my way.  But I’ll keep raising the issue until CAAF tells me I’m right or wrong.  Trial counsel might consider that vexatious, etc., etc., etc.  But, tango sierra.  So long as I can claim sanctuary under RCP 3.1.
     

    A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

     
    I’ll be litigating this, and other issues that I think are worth taking on.  And I would encourage trial defense counsel to litigate issues in motions practice regardless of what the prosecution thinks about the increase in their workload.  See Rule 3.1.
     
                One of the early lessons from reporting to Code 45 was that you have to keep plugging away.  Most appellate courts are not going to take the issue until they feel it is properly developed or presented, for example in a significant “circuit” split.  And even the Supreme Court has said that their decisions are not “sacrosanct.”  
     

    Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity and propriety of doing so has been established.

    Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989); oh, and check out Fosler.
     
     
                With all that in mind, what do you think of the recent decision in EV v. Robinson, No. 16-1419 (JDB) (DCDC August 2, 2016).  How shall we classify this?  Is it frivolous and vexatious or is it good adversarial lawyering.  Please focus on the propriety of the litigation, not the merits.
     

  61. Joseph Wilkinson says:

    Your defense of sanity boards is quaint but not based on anything I’ve seen. They don’t “consult” with the GOV but weird how they routinely come up with the accused having rather mild mental health issues, if at all (unless it’s a chapter case and the GOV needs the Soldier out in which case they come up with something serious enough to effectuate that).
     
    It fits what I’ve seen, from both sides. (I had to arrange several on short notice in Iraq…where the main problem was finding someone who was available to do it. Not a syllable was exchanged about what the results should be.) If actual experience is “quaint” then I am very happy to be quaint, and I’ll take quaintness over conspiracy theories any day.
     
    It shouldn’t be surprising to you that most sanity boards don’t come back with something severe….most people with really bad mental problems, like a serious case of schizophrenia, say, won’t make it into the Armed Forces at all, let alone all the way to a deployment. And defense counsel often ask for and receive boards on very thin grounds. The “worst” diagnoses I’ve seen at boards, if I remember, were bipolar disorder and psychopathic personality disorder.
     
    (As defense counsel I got out of the habit of asking for boards. Much better to get a privacy waiver from the client and let him go to behavioral health on his own. That way, nobody but me learns the diagnosis, and if the diagnosis is unflattering, I don’t have to reveal it.)
     
    Writing a letter about the “horrors of America” or “shame of America” could be done by Michael Moore. I don’t think he “hates America” either.
     
    I’m not very familiar with his oeuvre, but a letter like that would be suggestive. If he coupled it with an anti-American crime….like espionage or treason, say….that would suggest it much more strongly. As long as he doesn’t commit such crimes, it doesn’t really matter what he feels — he’s free to hate his country or love it, or love it in theory and hate it in reality, and it’s no concern of mine.
     
    Bergdahl by contrast committed very serious military offenses and I certainly am going to pay attention to the evidence of his motive.
     
    I also don’t judge folks by one letter written at one point in their lives, and neither will the MJ.
     
    The “one point in his life” when he wrote it was “right before he deserted.” It makes a difference. It’s about as probative as you can get of “what he was thinking when he did the crime.”
     
    Suppose he was charged with assaulting a black man. And right before he did the assault, he wrote a letter that said, “I am ashamed of our Negro citizens. The horror that is the Negro is disgusting.” Would you figure the assault for a hate crime? Would you expect an MJ to enhance the sentence for choosing a victim based on race? Of course you would.
     
    And if, while he was facing trial, he tried to say he did it out of his love of Equality and Brotherhood, would you buy that story, or would you look at what he said at the time, when he wasn’t trying to help himself? You’d do the latter. You’d judge him by one letter written at one point in his life…because that “one point” was right before the crime, and so highly probative of his motives. And so would the sentencing authority.
     

  62. Joseph Wilkinson says:

    Me: I got the result from the “Bergdahl Docket” website, which was put up by the Defense to put their client in the best possible light.
     
    Philip Cave: Where’s the advocacy?  It seems to be merely a posting of various filings and decisions, consistent with what you might get if the military was on PACER, and what you might find on the Army FOIA pages related to Bergdahl.
     
    Me again:  At the very least, in the Article 32 record.  The Defense was trying to beat the referral.   If they had a psychological diagnosis that knocked it out of the park, that was the time to haul it out.   Instead, all I see is the sanity board result, which gives him a personality disorder plus PTSD (the latter presumably acquired after he deserted), and so nothing that would excuse or seriously mitigate desertion or misbehavior before the enemy.
     
    Certainly the Defense was trying to benefit Bergdahl by putting up that website.  And mind you, they couldn’t have made him look much worse than he already did from the published extracts from his letter home.  But the best they have is the Dahl interview, which makes him look arrogant and self-satisfied.  So, I won’t walk around with the assumption that they’ve got some glowing aces up their sleeves…I’ll believe when I see.
     
    The FOIA site you linked me to seems to have just filings from the court case….I didn’t see the Article 32 record or the Dahl interview when I paged through it, though I did see the 706 board.  (I just read titles without opening the pdf’s however, so if these things are attachments to these documents that might make a difference.)

  63. Joseph Wilkinson says:

    P.S. (Stewie again) – “Horrors of America” is still different from “the horror that is America”…the latter is about as anti-American as you can get.  Read the words, tuppence a bag.

  64. stewie says:

    It’s pointless to go back and forth but:
     
    1. It may be probative, but it is most certainly not dispositive, there lies the difference between you and I.
    2. No, I don’t see some grand difference between horrors of America or the horror that is America. Nor do I think typing those words per se means you hate America. Nor do I think typing those words and then leaving your post per se means you are off to join the Taliban. I’m quite open to the fact that there is a ton of info out there I don’t know that would be data points the other way. Your analogy doesn’t quite fit either. He didn’t do an act that was “against America.” He didn’t go to a website and proclaim his hatred, or go seek out to join up with the Taliban, he just left the base. If he’d done something actively “anti-America” your analogy might hold, he didn’t.
     
    3. Plenty of folks got in who shouldn’t have when we were desperate for bodies. Schizophrenia often doesn’t fully manifest until the early 20s for example. Other mental illnesses can be managed for a time, or are made much worse by stress. So yes, it is surprising that the vast majority of sanity boards end up with very minor diagnoses, particularly when a sanity board usually isn’t requested unless someone thinks something ain’t quite right.  Doesn’t mean every one of them should result in a serious diagnosis or even a majority, but the ratio in my experience doesn’t quite shake out right. I’ve never seen the defense talk about what he results “should be” but is equally not surprising how often those end up with quite severe diagnoses either. Doesn’t require a conspiracy theory. It just requires a soft science with experts who come in with their own biases.
     
     

  65. Joseph Wilkinson says:

    Your analogy doesn’t quite fit either. He didn’t do an act that was “against America.”
     
    My analogy certainly does fit, because he did an action that, by itself, could or could not be against America. So I look for further evidence to see what his motive was. And his letter provides that evidence.
     
    A person might assault a black man because he’s angry at that particular individual. Or because he’s feeling so mean that day that he’s ready to assault anyone. But if he immediately precedes the assault with a letter that says, “the horror that is the Negro is disgusting,” the odds become astronomical that he’s motivated by hatred of blacks per se.  Unless you ignore the evidence, or declare it’s irrelevant, or pretend that you can’t judge his motives from “one letter written at one point in his life” (right before the crime), or say it’s “no evidence” because there might be a unicorn out there that explains everything.
     
    Likewise, a person might desert (especially outside of a combat zone) to visit his sick mother or his girlfriend, or because he got yelled at, or just has a bad case of Tiny Heart Syndrome. But someone who deserts in a combat zone, and right before that writes a letter that says, “The title of U.S. Soldier is just the lie of fools…The horror that is America is disgusting,” has hugely raised the odds that he did it out of hatred for not only the U.S. Army, but the U.S. itself.
     
    The “difference between us” is that you refuse to come to grips with the evidence.  First you declare the letter to be “no evidence” of disloyalty…none whatsoever…totally loyal Americans write things like that all the time, just as much as disloyal ones.  (Except maybe it would have been evidence if he’d “proclaimed it” on a website, but if he writes it in a private letter, it’s “no evidence.”)   Then you tell me it doesn’t count because it’s just one letter and you can’t ever judge anyone by just one letter.  And besides, you say, there could be a unicorn out there to explain everything.  Like, say, a super-severe mental illness that nobody has seen symptoms of and the Army psychiatrists missed but that Mr. Fidell is keeping in his pocket for later use.  Or just, you know, unknown stuff.  A “ton of” it. Mountains and mountains of unknown stuff.  Only you haven’t so much as a  hoofprint to indicate the unicorn is there.
     
    Plenty of folks got in who shouldn’t have when we were desperate for bodies. Schizophrenia often doesn’t fully manifest until the early 20s for example. Other mental illnesses can be managed for a time, or are made much worse by stress.  
     
    Those were more likely to be “otherwise sane guys with criminal backgrounds” than schizophrenics, though.  And we weren’t anywhere near as “desperate for bodies” in ’08 (when Bergdahl joined) as before…I remember in ’04-’05, it was very easy for an active Army Soldier to be retained after a single use of illegal drugs.  But by ’08 it was a quick ticket out.  (Doubly so in Bergdahl’s unit, 4/25 infantry.  I was a defense counsel in Alaska when they got back from the tour he was on, and it was the most chapter-happy unit I ever saw in my life.  Plus the Airborne is a stressful life to begin with…more likely to show up early and then wash out a person with a serious problem.)
     
    Schizophrenia affects only about 15 people out of 100,000 to begin with, so with about 500,000 Soldiers in the Army, that would be only 75 guys even if we were randomly selected from the population. But we aren’t. For example, schizophrenia (and other serious mental problems too) are a lot more common in heavy users of street drugs…whom we ruthlessly screen out both as recruits and after they join. And since the symptoms involve an inability to distinguish fantasy from reality as well as hallucinations…that kind of thing is very likely to get you chaptered out long before you commit a crime serious enough to warrant court-martial (and thus a 706 board).
     
    So, no, you shouldn’t expect most military justice practitioners to ever see such a diagnosis at a 706 board, or at all, and the fact that you don’t is no indication of a systematic bias among Army psychiatrists, such as you are accusing them of. (It’s a different story in a civilian criminal practice, where you have incredibly high incidence of street drug use, and there is no screening to keep out the crazies.) That’s particularly true of someone like Bergdahl, who joined at age 22, succeeded a couple of years in Airborne Infantry, and was even being looked at for Special Forces. The odds of him being a schizophrenic, schizoaffective, psychotic, or what have you are very tiny indeed.
     
    (Personality disorders are a different matter; psychopaths, sociopaths, narcissists, schizotypals, and so forth may be very unpleasant to be around, but they are often able to function in civilian or military society, and some are even very successful due to their manpulative skills. I’ve seen a few diagnoses of those, and suspected several more.)
     

  66. stewie says:

    super secret? No, I just assume, like most defense counsel, that it’s possible the CDC in this case has yet to share his own docs results, or has and the gov for a myriad number of reasons sees no reasons to make public what the defense shared with them (perhaps like you they don’t believe any analysis that says he has anything more than a personality disorder).  Is there other evidence you and I don’t know about that the defense does? I’m gonna go with yes, and it doesn’t require unicorns. Is it likely there’s more to it than a single letter? I’m gonna go with yes and it doesn’t require magical thinking.
     
    It probably requires the same thinking that led a LTC JAG IO to recommend a SPCM. But maybe he has the same problems you see in me too. Who knows?
     
    I’d also suggest that schizophrenia is not only not the only serious mental illness out there, it’s not even the only serious mental illness on the schizo scale. So citing the numbers for one illness and then saying “and other serious mental health problems” as throwaway line are rare kind runs in the face of the fact that serious mental illness and crime kind of have a bit of a correlation, both inside and outside the Army. Particularly when that crime involves an act no one would ordinarily do, which is leave a post during “wartime” to walk in an area unprotected where there’s a high chance you might be shot on side and most certainly captured and tortured (but I forget you don’t see to really believe that happened either).
     
    SW: Weird thing for the CA to do, but not sure it’s going to mean much. Letters from unrelated folks pro or con aren’t really relevant are they? I don’t know why you would burn them? Weird. But I mean I’m not sure of any obligation he had to read them either. I guess the argument is it shows bias…which I understand, but the ultimate decision to refer was not an extreme one so I’d think you’d need more.

  67. Philip Cave says:

    It said Abrams “suggested that if the defense wanted him to read the submission, it should be written in ‘plain-speak,’” 

     
    Does this action, assuming it to be true, fit into Sen. Gillibrand’s argument that CA’s are not competent in deciding the weighty legal issues related to referral?
     
    Where were Gen. Abrams lawyers (read SJA) when he “burned” the letters?  And what did they do about it at the time?  When did they tell the prosecutors about this, and when did the prosecutors tell the defense?  (Apparently, as I read the pleading, the defense did not learn this until an interview with Gen. Abrams.)
     
    If this were done by an accused, what would we say?

  68. Concerned Defender says:

    If this were done by an accused, what would we say?

    Well, apparently you can deleted 30,000 emails after a court order to turn them over, and not get prosecuted for it… 
    If true, Abrams actions are puzzling.  But letters from supporters and detractors have zero evidentiary value.  It’s not a popularity contest, meaning 1000 letters for and 1001 letters against prosecution.  It’s all irrelevant.  None of those strangers would be called as witnesses in any capacity on the merits or sentencing, unless they were there.  So it’s not destruction of evidence.  
    I do find it puzzling though – he has dozens of lawyers at his disposal, including immediately summon-able 1 06 SJA, and countless 05s, 04s, 03s… he can pick up a phone and get any lawyer in the JAG on the line, including Darpino herself – if he is too confused about “legal speak.”  It’s equally puzzling why this stuff wouldn’t be routed through the SJA.  Why is defense sending this information directly to the CA?  I’d bet dollars to doughnuts that most or all of this is in duplicate in PDFs or emails.  
    The whole thing has become a shi*t show.  From the totally nonsense Dahl “investigation” to the inept “Art 32” by an inept IO, to this ineptitude (if true) by Abrams.  It really is staggering how inept the military is at what otherwise is a pretty straight forward process.  If Abrams actions are founded, the remedy is not a windfall for BB since it has no material impact.  But it really is troubling if he doesn’t talk to his SJA about legal matters – unless he just lost faith in the JAGs over the ART 32 investigation, which is very well possible since it was total nonsense and frankly and embarrassment to the JAG Corp (not the first one by that IO – I’ve experienced one myself that was bewilderingly inept).   
    Sorry for the following tangent but this is from my foxhole: In the last few years, from seeing trials and boards, repeated inept “investigations” that have serious negative consequences for Soldiers or the military or civilians, to the bungled FBI/DOJ which can only be described as total corruption, I have nearly lost my faith in the criminal justice system.  Anyone else see the high profile exoneration of Dassey from “making a murderer?”  Are there any honest and competent folks left???  Where do folks get their licensing and credentials – a cracker jack box?

  69. Joseph Wilkinson says:

    I just assume, like most defense counsel, that it’s possible the CDC in this case has yet to share his own docs results,
     
    If you read the Article 32 record, you’ll see the defense was trying hard to beat the referral.  And that was very sensible under the facts of this case.   His guilt on the desertion charge is very obvious (per the earlier posts on the subject), and even the most benign separation for desertion kills all VA benefits.   Trying to beat the referral was a good move for the defense.
     
    That being so, what sense does it make to hide a favorable diagnosis?  Far better to put it into evidence at the 32, and argue it.  (The IO might’ve recommend no trial and a med board, if it had been as grand as you speculate; and the CA might’ve gone for it, too.)  Instead, they had the results we know plus General Dahl plus some witnesses who knew about his pre-desertion service.    Hiding great evidence for the sake of hiding it would make no sense under these circumstances, though they might do so in some other case.
     
    So, no, there is not a scrap of evidence of a worse diagnosis.   Reason suggests that the defense would’ve pulled it out when it could do the most good if it had been there.   Really serious mental illness is rare in the civilian population, extremely rare in the Armed Forces, and nothing in Bergdahl’s background (as described by the Article 32 witnesses and himself in his interview) suggests it.  Until and unless such evidence comes up, this fantasy “serious diagnosis” is a unicorn. 
     
    Philip Cave — It’ll be interesting to see  how the story pans out.   But the letters, per the story, “were sent to him by supporters and detractors of his client.”   So they are not internal letters in the CA’s office talking about the decisionmaking process on the case, but letters from outside parties trying to influence him.  Refusing to read the letters — and instead leaving it up to the parties to influence  him — doesn’t strike me as shady.  
     
    Refusing to read the Defense submissions is a different matter.  I really hope that one doesn’t pan out, or if it does, that they cure any problems quick.  btw, you say “as I read the pleading.” Is it available?  I didn’t see it on the Bergdahl FOIA page or the defense Bergdahl Docket page when I looked just now.   

  70. stewie says:

    I also said it’s possible they HAVENT hid it, they have given it to the gov who has no reason to share it with the public so we don’t know about it, and it’s also possible that the 32 happened before their doc completed an examination. You’ve clearly assumed you know everything both sides do about the case, I do not.