Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).
In Sterling, the contentious relationship between Marine Lance Corporal (E-3) Sterling and her superiors resulted in a claim of religious freedom as justification for disobedience of an order. Sterling was convicted of numerous disobedience offenses – including refusing to wear the service C uniform, refusing to perform duty handing out vehicle passes, and failing to go to her appointed place of duty – but it was her refusal to obey an order to remove three signs that she posted in her military workspace that was the basis for the claim of religious freedom. The signs stated “no weapon formed against me shall prosper” and Sterling asserted at trial (where she represented herself) and on appeal that the signs represented the Christian trinity and were posted as an expression of her religious belief.
Despite an all-star lineup of appellate counsel advocating on her behalf – including former Solicitor General Paul Clement who argued the case at CAAF – and a crowd of amici, Sterling’s claim of religious freedom fell flat. In an opinion authored by Judge Ryan, four of CAAF’s judges doubted whether Sterling’s “conduct was based on a sincerely held religious belief or motivated by animosity toward her chain of command,” 75 M.J. at 416, slip op. at 14, and they concluded that Sterling did “not even begin to establish how the orders to take down the signs interfered with any precept of her religion let alone forced her to choose between a practice or principle important to her faith and disciplinary action.” 75 M.J. at 419, slip op. at 18. Only Judge Ohlson dissented, but not because he agreed with Sterling’s religious freedom claim. Rather, Judge Ohlson felt that the NMCCA failed to apply the proper test in its review and that Judge Ryan’s majority opinion “ventures beyond that which is necessary to decide the issue before us.” 75 M.J. at 427, diss. op. at 14.
Sterling now hopes to continue her appeal at SCOTUS, with a petition for certiorari that asserts that CAAF erred in concluding that the order to remove the signs was not a substantial burden on her exercise of religion based on a sincerely held religious belief.
Sharing the #8 spot with Sterling is Sergeant Bergdahl, whose case was also the #8 Military Justice Story of 2015 because its processing through the military justice system was increasingly bizarre. But over the past year it went from bizarre to pathetic, as the prosecution made remarkably little progress in getting the case to trial.
Bergdahl is charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2) and misbehavior before the enemy in violation of Article 99. He functionally confessed to the desertion charge (discussed here), and NPR’s Serial podcast discovered many other damaging facts and significant evidence in aggravation, including that Bergdahl deliberately caused a crisis in order to draw attention to himself, that he was conscious of his guilt, and that the soldiers who searched for him suffered through terrible conditions. Bergdahl’s case was referred for trial by general court-martial over a year ago (noted here), and a trial is likely inevitable as the only alternative under Army regulations is an honorable discharge (discussed here). But the trial is now postponed until at least next May at the request of military prosecutors (discussed here) who appear to be incapable of managing their own bureaucracy.
Bergdahl’s defense team, however, has been busy. Two petitions for extraordinary relief were filed with CAAF in 2016 (discussed here and here), both of which were denied resulting in an 0-6 record. The defense created a website to publish documents related to the case (link). It unsuccessfully moved for dismissal based on a statement made by Senator John McCain (discussed here). It unsuccessfully moved to disqualify the convening authority (discussed here and here). And it announced its intention to seek dismissal because President-Elect Donald Trump was . . . well . . . himself (discussed here). Finally, Sergeant Bergdahl requested a pardon from President Obama.