Having discovered that General Abrams – the convening authority in the Bergdahl case – failed to review matters submitted by the defense before referring the case for trial by a general court-martial, and also that the General destroyed letters sent to him regarding his referral decision, the defense motion to replace General Abrams as convening authority (previously discussed here) seems to have found some traction.

Stars and Stripes reports here that General Abrams has been ordered to testify by telephone.

22 Responses to “Bergdahl’s effort to replace convening authority finds traction”

  1. Zeke Kennen says:

    And the argument for commanders controlling the military justice system grows even less politically defensible.  The service is generating the bad press on this issue itself.  Unforced errors.  Just wait till the press realizes that Bergdahl won’t receive a jury trial, and that, instead, the members who will try him are all hand-picked by General Abrams, who, as the narrative will read, regardless of facts, didn’t even bother to read the defense submissions and destroyed letters in Bergdahl’s favor.  That’s not even considering the fact that the military “jury” won’t have to be unanimous to convict him.   Policy in this country is all about narrative and appearances, and DoD is not messaging well on the question of whether it’s justice system is fair – first to victims, and now to high profile accused as well.

  2. Zachary D Spilman says:

    Right. Because professional prosecutors never make mistakes like this.

  3. Zeke Kennen says:

    Yes.  But federal prosecutors don’t get to hand-pick the jury pool, and they have to convince a jury of twelve to unanimously find the accused guilty beyond a reasonable doubt.  The two systems are entirely incomparable in any way that is actually meaningful to the principle of limited government.

  4. DCGoneGalt says:

    I agree with Zack that military justice appellate opinions are abundant with the mistakes of prosecutors but Zeke is continuously correct on the panel v jury issue.  Unanimous or 9/10 juries would eliminate much of the danger from the government’s tinkering with the system to satisfy the POD-People.
    BTW, I don’t think anything about the modern military or its endlessly expanding mission sets is compatible with the idea of a limited government.

  5. RKincaid3 (RK3PO) says:

    Amen, Zeke.

  6. Advocaat says:

    Let’s not give the federal system too much credit, because nearly 98% of the time there is no trial and juries have no role.  For all of its faults, the military justice system is far more faithful to the Sixth Amendment.

  7. Lance Gallardo says:

    To Advocaat: The 6A RTC is not stronger than on the civilian side when you consider all of the structural problems that continue with transient nature of the Defense Counsel’s Billets. Or their lack of investigatory resources, AKA no assigned CID/NCIS agents for the defense to do the Criminal Defense Criminal Investigations, as many Public Defenders office have criminal investigators, as do the better criminal defense forms and attorneys. As a Military AD Criminal Defense Counsel,  one day your representing the accused, the next day you might be working for the same SJA that you were opposing at trial, the day before. If the military was serious about creating a truly independent Defense Counsel System , they would create a locked in, single path career for Defense Counsel, DOD Wide, probably supplemented with Professional Civil Service Protected GS Civilian Defense  Counsel, something similar to the Federal Public Defenders with Defense Criminal investigators. Also you would not allow EADS for Defense Counsel who are deep into a criminal defense case unless the accused made a knowing and intelligent waiver and substitution of counsel. My two cents

  8. Vulture says:

    Advocaat.  I saw a NYT article only a couple of weeks ago describing the same trend that you are referring to.  The other side of the story is that the low percentage of jury trials was due to the heavy handed mandatory sentencing that prosecutors were getting on rider charges scaring Defendants into plea deals.  It is a lamentable aspect of the current justice system to be sure.  But I will also say that in the framework of the Bergdahl trial, it is the Government too that attended the heavier charge and the test of the MJ system is yet to be seen.

  9. Joseph Wilkinson says:

    The odds of Bergdahl electing a panel instead of a judge alone trial are awfully small anyway, when you consider the strength of the evidence, the length of the maximum sentence, and who the judge is.  

  10. Vulture says:

    When the facts are against you argue the law, right?

  11. Joseph Wilkinson says:

    Hm?  I don’t understand the relevance.  When the odds of being convicted are high, the defense does damage control.   Going judge-alone, especially on these facts with this judge, is good damage control.   (Maximum sentence for misbehavior before the enemy is LWOP, since they haven’t referred capital.  You wouldn’t want a client of yours facing that in front of a panel…not for a crime like this.) 

  12. Joseph Wilkinson says:
  13. Vulture says:

    The relevance is that the defense wants the misbehavior charge dropped and the desertion charge dropped.  If they can show that these charges are not legally in front of the Court by way of an improper referral, they have placed the facts to say exactly what they say so loudly.  Eugene Fidell said this was a “creative charging decision.”  If they can establish, which is more than likely they case, that external factors influenced the CA, they have accomplished that.

  14. Joseph Wilkinson says:

    Oh, I see.   I imagine they’d try the same thing even if the facts were dead in Bergdahl’s favor — if you can kill a charge without trial, so much the better.  (In fact if that were the case the Government would be less likely to re-refer after a nonreferral. all the more reason to make the challenge.) 

  15. Allan says:

    Rosenblatt has balls.  Going after a 4-star general AND Senator McCain.  Can you imagine that coming up at the 0-6 promotion board?
    A couple of other questions.  First, I thought Gen. Abrams was going to testify by phone, what happened?  Second, does everyone in the court room come to attention (including the military judge) when a witness who is at that rank enters the room?  Third, if we believe that Gen. Abrams was not influenced by Sen. McCain or the letters, why would we not believe Bergdahl’s claim?  As we have learned in the past few years, just being a flag officer does not mean we can automatically assume you are honorable.

  16. Allan says:

    Oh yeah.  According to the story, Gen. Abrams was not wearing his full Class A uniform.  Is that because the rules have changed since I was in the Army (a decade ago) or because flag officers can wear whatever uniform they please?

  17. stewie says:

    Allan, in the past I’ve done trials in As, Bs, and BDUs. Just depends on the location, how warm the court-room is, etc.

    I’d guess the uniform is Bs with the option of wearing awards for the accused.

  18. Concerned Defender says:

    Regarding uniform policies in the Court Room, the MJ has final say and I’ve experienced where either TC or DC request the MJ relax the uniform rules for a particular witness for a host of reasons.  For instance, a Soldier who was recently deployed/PCS’d or whatever may not have access to his dress uniform.  Had witnesses testify in As, Bs, ACUs, Multicams and maybe even in civilian cloths but I can’t recall… certainly had CID agents testify in civilian cloths.  Down range of course everyone is in service uniforms.
    Since it’s Judge alone and just a motion hearing, the Court is a lot more relaxed.  

  19. Concerned Defender says:

    Rosenblatt has balls.  Going after a 4-star general AND Senator McCain. 

    Eh.  Probably not noteworthy.  His signature block is after the civilians.  And notice that it was the civilians that cross examined Gen Abrams.  Nothing against Frank, but doubtful he’s going to put himself in a situation to risk crossing a senior officer.  Would be a clear conflict of interest in violation of duties, and place himself and BB in jeopardy of an IAC issue.  

  20. Joseph Wilkinson says:

    I never heard of a defense counsel’s career suffering because he claimed UCI or improper referral, and I can’t fathom how such a common thing would really be an issue.  UCI claims against the Commander-in-Chief have happened often enough thanks the sex assault business, and I’ve seen them against the CJCS and SECDEF, down to division commander and below…improper referral claims are even less offensive than UCI claims and come with the territory of being a convening authority.  I don’t see how the “evil influence” of a resentful CA would reach the promotion board even if the general was so childish as to want to exert it.  
     
    I’ve examined an O-6 SJA who didn’t want to be on the stand (as an O-3 myself at the time) and didn’t see any conflict of interest or violation of duties…I don’t say he liked it but I think he understood that it came with the situation, and nothing unprofessional grew out of it.  (Only in the movies, specifically A Few Good Men, does uniformed DC face a court-martial by attacking a senior commander…in reality we go at them whenever it seems to help.  Indeed, can you imagine an RDC giving a bad OER to someone for litigating a good referral issue just because the CA had four stars?)

  21. Contract Lawyer says:

    Just as long as no one breaks that rule from A Few Good Men.  Of course the exception to the rule is if the superior officer ordered a code red and admits to doing such on the stand during the cross examination in question. 
    Did anyone ask GEN  Abrams if he ordered a code red? 
    He was likely in full ASU.  When the other GEN Abrams was the TRADOC commander, he was often in Class As (greens) with his chest poking out, though he leaned a little to the left due all the ribbons. 

  22. Lieber says:

    I cross-examined (carefully) a two-star GO as a somewhat junior O-3.  Twice.  It wasn’t a big deal.