After so many motions, writ-petitions, and breathless claims that Army Sergeant Bergdahl can’t get a fair trial by court-martial on the charges of 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 for leaving his combat outpost in Patika Province, Afghanistan (leading to his capture by the Taliban and captivity for nearly five years), Bergdahl has elected to be tried by a court-martial composed of a military judge alone:
(source).

45 Responses to “Bergdahl goes judge-alone”

  1. Defense Wizard says:

    That’s a bold strategy, Cotton…

  2. Zachary D Spilman says:

    Preface to a guilty plea.

  3. Concerned Defender says:

    Credit to the defense team for attempting to lay foundations and formulate a battlefield.  Not to be a nit pick but that one sentence notice is odd – “the defense through the defense provides notice….. “.  Wouldn’t it be “the Accused, through defense counsel…”.
    Anyway, bold strategy.  Could it be a play to attempt to beat 1 of the 2, and focus on sentence?  Factoring in the panel could go big on a sentence.  Mitigation by having a JA decide the merits and fair sentence?  
    Or as Zach said, is this prelude to a guilty plea?  

  4. Scott says:

    Why is the signature redacted but the type name of the DC is not?  Anti-forgery?

  5. K fischer says:

    If I thought my client couldn’t get a fair shake in front of a panel, I’d go judge alone.

  6. Zachary D Spilman says:

    What kind of crystal ball shows, before voir dire, that an accused can’t get a fair trial from a panel?

  7. Defense Wizard says:

    No crystal ball. Best professional judgment based on what you know of the Judge, the Panel, the individual members, and the nature of the crime.
    That said, who said you can get a fair shake in front of a panel even after voir dire? See US v. Commisso.

  8. John O'Connor says:

    Maybe the concern is that Bergdahl will get a fair shake from a panel.  I could see a panel taking a very harsh view on sentencing.  Not an unfair view, but a harsh view.

  9. Bionic Barry Dylan says:

    I think John O’Connor is spot on – the concern here is not that he can’t get a fair shake from a panel, but that a conviction is likely inevitable, especially in light of his post-release statements, and a panel is less likely to lend much sympathy to him in sentencing.  If I were Bergdahl, I’d take my chances facing one 27A as opposed to a hypothetical panel that will likely include a fair number of members from various combat arms occupational specialties.

  10. k fischer says:

    This is my thought and it takes no crystal ball to make it:  If I spent many months filing motions and appealing rulings arguing that my client cannot get a fair trial due to Unlawful Command Influence, it seems inconsistent to then choose to be tried by a panel.  I would probably go Military Judge Alone because I would presume that the military judge would not be as susceptible to UCI as panel members, the Navy and Air Force TJAGs notwithstanding, respectively.

  11. Christian Deichert says:

    Interesting move.  Might be for the best, though of course panel selection could have preserved all sorts of tantalizing fruit for appeal.
     
    (@ Barry: military judges are 27B, for the record)

  12. stewie says:

    Seems like a no-brainer from the start to me.

  13. Lone Bear says:

    Didn’t the PHO recommend a special?  They may think a judge advocate will keep it in that range on sentencing.

  14. Lieber says:

    Anyone who ever thought this was a panel case knows nothing about trial work. 

  15. Scott says:

    Lone Bear makes a good point, in MJ alone the favorable 32 recommendation could help.  Can’t help in front a panel because (usually) a panel doesn’t know what the recommendation was.  (Yes, I realize the judge should not consider it).  

  16. Lance Cheetoh says:

    Am I alone in thinking that Bergdahl could get serious time, even going judge alone?  This is one of those rare cases of desertion while deployed into enemy territory.  It’s rare b/c every PVT Snuffy out there knows he will get hammered if he does it.  How is this not a decades of confinement case?

  17. Lieber says:

    ”This is one of those rare cases of desertion while deployed into enemy territory.  It’s rare b/c every PVT Snuffy out there knows he will get hammered if he does it.”
     
    One of the dumbest things I’ve ever read on CAAFlog. No that’s not why it’s rare. But your first sentence has the answer. 

  18. Defense Wizard says:

    I’ve never been an MJ, or on Bergdahl’s defense team, but I imagine that the MJ strives for some degree of consistency in sentence with similar cases. We all know that panel cases are anyone’s guess. Everyone who has practiced in an MJ shop has been at the round table when we try to figure out what a case is “worth,” and the sentence ranges from 90 days to 3 years. I’ve seen experienced SVPs and CoJs argue for between 10 and 15 years amongst themselves, only to get 6 mos from the panel.So if they prove everything up, what’s he going to get in front of a Judge? Over/under a year? I once jokingly asked a retiring MJ if he would give Allen credit.

  19. Concerned Defender says:

    I can say I’m not too surprised.  This is a pretty complex LEGAL issue, where emotions can interfere with both merits and sentencing. This is a case where some form of a conviction is nearly a foregone conclusion because the evidence of guilt is so plainly obvious.  So they are probably hedging bets, attacking the weaker of the allegations, and focusing on sentencing; focusing on a light confinement, but also not a punitive discharge which is key for him for benefits and other reasons – my educated guess.
    The defense did their best holding onto the “Panel” card to attempt to repeatedly argue he can’t get a fair trial due to UCI.  They lost.  Now they have to play their real card, which is JA.  
    JA will tend to be better are assessing the actual legal merits of the arguments, and remove the emotion as much as possible, and give a more realistic sentence.  Given the likely conviction, and panel would assuredly hammer him and give him a punitive discharge.  A JA will likely be more tempered.  
    Others have already commented on similar reasons and I tend to agree.  
    A “win” for the Defense and BB looks like a conviction with minimal time, and having preserved a whole bunch of issues on appeal, which they did with their piles of motions.  
    A conviction is a win for the military and tax payers and all those service members.  It would presumably remove him from a DFAS windfall, a PH, and other things of that nature.  Personally I think he should get a sentence measured in decades for what he did and the predictable aftermath and costs in terms of risks, injuries, deaths, and costs to the US government. 

  20. Lance Cheetoh says:

    Lieber, please dazzle us with your intellect and expound.  You might begin by noting the other deployed desertion cases in the last 20 years.  Good luck with that.  Douchebag.  Thank you in advance.

  21. K fischer says:

    Lance,
     
    Lieber probably is this boing that the reason any Snuffy doesn’t desert in enemy territory is because they will have their throats slit like a pig…..or a Russian Soldier.  I would think being prosecuteded would be the last thing on their mind.
     
    But, I would agree that your post is not one of the dumbest things on Caaflog.  I’ve been posting far more stupid things on here for going on about six years now.

  22. Dew_Process says:

    Anyone who has ever practiced before this MJ, knows his proclivities. But, what’s somewhat surprising is that the MJ basically has already ruled that Bergdahl is guilty of the misbehavior charge. MJ Ruling
     
    COL Nance also probably also guaranteed a LWOP sentence by a panel should he be convicted by allowing the prosecution to use evidence of injuries to those searching for him. Injury Evidence   Something that a plea and JA might beat.

  23. Concerned Defender says:

    @ Dew Process.
    Surviving a motion to dismiss an offense isn’t the same as ruling the accused is guilty of that offense. 
    I agree the sentencing evidence is extremely aggravating, but I don’t see that necessarily equating to LWOP.  However, what is interesting is that a panel might never know of the injuries on the merits, whereas the Judge is aware of it and what will come at sentencing.  Sure, Judges are supposed to compartmentalize but they are human…
    – Break –
    While not a desertion while deployed, and FAR less aggravating, read about 2LT Franks.  He was an Army officer that shirked his duty and deserted to join the French Foreign Legion. https://www.nytimes.com/2014/12/16/us/a-deserter-who-chased-conflict-is-jailed-for-shirking-duty.html?_r=1
    2LT Franks’ story is puzzling no doubt.  Deserted in 2009 (returned by turning himself in 2014) due to mental health issues, but then went on to serve and deploy in the FFL.  Odd.  But if it’s any guideline on a desertion sentence for comparable time missed, 2LT Franks received a Dismissal and 4 years confinement.
    So absent credit for time served, it would seem the baseline for a BB desertion conviction is the maximum, given the severe aggravation involved (injuries, interference with mission, deployed environment, wasted assets and money, etc.) – 5 years and a DD.
     
     

  24. Scott says:

    But don’t forget he will get credit for the captivity/tourture he’s already been through.  Not sentence credit in the technical sense of course, but any sentencing authority will certainly, and rightly, consider that.  I think that thought process can clearly be seen in the recommendations of the two authorities that have already opined on this: the 15-6 IO and the Art 32 IO/PHO (this case is so old I can’t remember which it was at the time of the 32).  

  25. Dew_Process says:

    @ CD
     

    Nance’s ruling said there is no way Bergdahl could not have known what he was doing was criminal misconduct.
    “There is simply no way the accused could not reasonably have understand that his conduct was proscribed,” he wrote. “Furthermore, the alleged conduct cannot even be said to be ‘marginal’ misconduct.
     

    I’m well aware of the standard for motions to dismiss versus proof BRD – but Nance’s comments rule out the “reasonable doubt” issue.  Of course, Nance’s words coupled with the change of forum, could be the predicate for a recusal motion and yet another appellate issue.  Just sayin’ . . . .

  26. Zachary D Spilman says:

    There is simply no way the accused could not reasonably have understand that his conduct was proscribed…

    Put differently, Bergdahl was on notice. Cf. United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page) (appellant not on notice that possession of images depicting minors as sexual objects or in sexually suggestive way was punishable under Article 134).

    If they ask Nance to recuse himself for such an obvious ruling, they will lose. Again.

  27. Shawn says:

    The whole Bergdahl kerfuffle is a classic example of the buttered cat paradox.  It will never land and instead spin forever.

  28. Philip D. Cave says:

    If they ask [Judge] Nance to recuse himself for such an obvious ruling, they will lose.

    So what?
    If you don’t make the motion, you don’t know the answer.
    If you don’t make the motion, you don’t have an appellate issue.

    Think Fosler.

    Was just discussing the whole question of “losing motions” with some counsel this week.  “Think Fosler,” was the first part of my resonse.  Make the motion.  I’m sure there were plenty of people critiquing Fosler’s counsel–before CAAF decided the issue.
    Too many times I read ROT’s where there was no objection or motion–it’s harder on appeal to argue plain error or a distinction between waiver and forfeiture.

    Again.

    I never find myself being critical or dismissive of counsel who make motions or objections, even if they are likely losers. What I do, at times critique is no motion or no objection.

    Again.
    It is axiomatic that “[a]n accused has a constitutional right to an impartial judge.” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (quoting United States v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999)) (remaining citations omitted). R.C.M. 902 promulgates two different categories in which the military judge must recuse themselves.
    . . .
    Our superior court has explained the disqualification analysis under R.C.M. 902 requires a two-step analysis. The first step is whether disqualification is required under the specific circumstances listed in R.C.M. 902(b). If the answer to that question is no, the second step asks whether the circumstances nonetheless warrant disqualification based upon a reasonable appearance of bias. Quintanilla, 56 M.J. at 45United States v. Inman, No. ARMY 20150042, 2017 CCA LEXIS 339, at *10-11 (A. Ct. Crim. App. May 17, 2017).

  29. DCGoneGalt says:

    I once worked with a wise old defense counsel who filed motions by the dozen on everything up to the line of ethical concern.  Anyone that would complain was met with a response that started with “Foster” and ended with “I’m the boss”.  Plus, I’m pretty sure he was an appellate dork at heart and loved writing and arguing the most boring and complicated issues he could think of.  

  30. Zachary D Spilman says:

    Hey now. Motions and objections are like voting; do it early and often.

    But Bergdahl just went judge-alone (knowing the judge and his ruling on the notice issue). My point was that if that’s some kind of 3D chess move to create a recusal issue, it’s a bad one. 

    There’s no way to know if a panel would be more lenient without (at least) some voir dire. If I was the trial counsel, I’d want a panel that is shown to be defense-friendly in voir dire in order to avoid an appellate issue in an otherwise very solid case. The defense, however, just gave the prosecution a free pass. I’m having a hard time understanding that move, unless Bergdahl is going to plead guilty. 

  31. stewie says:

    No way to know? Is this a brand new panel? I don’t think so, thus local counsel have had plenty of opportunities to suss out the panel and their potential proclivities and to balance that against the MJ hearing the case and make a reasonable call. Whether that call is objectively correct would require the multiverse theory but otherwise, I do not believe “there’s no way to know.” I suspect the defense has plenty of available information and made a thoughtful, reasoned decision based on evidence.

  32. Scott says:

    I believe there is case law that says he standard for recusal of an MJ is the same regardless of forum (panel or JA).  So if the contents of his ruling were a basis for recusal, it would not need the JA election to ripen.  But frankly this is a fair minded judge, so beyond creating appellate issues I’m not sure why the defense would want to ask for recusal. 

  33. Scott says:

    COL Nance also probably also guaranteed a LWOP sentence by a panel should he be convicted by allowing the prosecution to use evidence of injuries to those searching for him. Injury Evidence   Something that a plea and JA might beat.

     
    LWOP?  The 32 officer didn’t even recommend a GCM.  The 15-6 IO said no jail time.  Opinions differ certainty, but that would be an incredible swing from the first two authorities that looked into this to the third (panel/MJ at sentencing).

  34. Ja Rule of Law says:

    Scott, this case has LWOP written all over it.  Maybe even housing in ADX Florence rather than USDB.

  35. k fischer says:

    Scott’s right.  
     
    As we held in United States v. Sherrod, 26 M.J. 30, 33 (C.M.A.1988), “[i]f a judge is disqualified to sit as judge alone, [s]he is also disqualified to sit with members.”3
    U.S. v. McIlwain, 66 M.J. 312, 314 (App. Armed Forces 2008)

  36. Marsha Aardvark says:

    Jarule, could not agree more…could not agree more.

  37. DCGoneGalt says:

    Even with the potential for a sentencing parade of horribles caused by Bergdahl, I could see a stand-alone DD.  

  38. k fischer says:

    DCCG, 
     
    I kind of go back and forth on this case.  The two witnesses who were injured during search operations are going to decide how long or short of a time he spends in prison.  While I’m inclined to roll my eyes, like I do when I object to the company commander testifying what an adverse impact the Accused’s court-martial has had on the unit because they had to pick him up from pretrial confinement in Charleston, SC, this case is different.  
     
    It wasn’t like Bergdahl deserted back in garrison where he would get DFR’d only to be later arrested by a local LEO who pulled him over for littering.  There was a high need to get him back to the unit quickly because he could give up information to the enemy or be exploited for their purposes.  Joes need to know that when you walk off your post due to you being disenchanted, it doesn’t affect only you.  If you desert in enemy territory, then there is going to be a huge search and rescue operation because it is an operational necessity.
     
    And, while perhaps most Joes don’t need to be deterred from walking off their post in the middle of enemy terroritory, particularly where they will gut you like a pig if they catch you, what about the Muslim soldier who becomes disenchanted with his service in the US military and is thinking about deserting in enemy territory?   https://www.nytimes.com/2015/02/24/us/a-marine-is-convicted-on-two-counts-of-desertion.html 
     
    This is a pretty big deal because US Servicemembers being in the hands of the enemy, regardless of whether they deserted or were captured, affects the mission.  Making a conscious decision to desert should be strongly discouraged with a sentence that will facilitate the utmost deterrence.  And, the performance of these Government sentencing witnesses will determine the length of his sentence.  And, I would tread lightly in my cross examination of these witnesses, if I were the defense.

  39. k fischer says:

    [Disclaimer] The post above is based on the presumption that he will be convicted of desertion.  I still recognize that the Government has the burden of proving Begdahl’s guilty beyond a reasonable doubt, and if they fail to do that, then all of this speculation on his sentence is moot.

  40. Concerned Defender says:

    KF – I think we all recognize that he’s entitled to a legal presumption of innocence; but at the same time we all probably recognize that the evidence against him is simply overwhelming and he’ll be convicted of something.  
    He’s faced with desertion – 5 years, DD, TF, E1.   If that’s the only conviction, then clearly his sentence will be something less than 5 years.  I’ve cited 2LT Franks above.  His desertion in garrison was worlds less aggravating (no expensive and dangerous search and rescue, nobody injured looking for him, not on a deployment, no costly prisoner swap, etc.).   2LT Franks got 4 years and a dismissal. So, in a just world, BB sentence would be more severe, and surely not less severe.
    He’s also facing Misbehavior before the enemy.  That carries a max punishment of death or other lawful punishment – clearly he won’t get death.   I’d say that this punishment is with 5-20 years in confinement, depending on the severity of the aggravation.  I’m not dialed in on precisely which aggravation is being allowed.  I believe at least one Special Operations Soldier had his career ended due to injuries sustained proximately caused by their searching for BB.  I’m generally aware of allegations of significant assets being diverted to search, probably tens of millions of dollars in resources, some deaths, some injuries, deprivation of combat assets and medivac units from other units, etc.  And of course the abysmal prisoner swap deal of the Obama administration.  I don’t know how  much of that comes in, and I think little or none of it is coming  in.  And quite bluntly, I think the MJ was correct in ruling that little or none of it comes in.  Not because I think it shouldn’t come in, but it would be a shame for him to receive a win on an appellate issue over unnecessary sentencing evidence. 
    I don’t know enough on the Misbehavior charge to predict an outcome on it.   I hope he’s convicted of it, and believe he should be because I think it could be charged a few ways and his misconduct warrants a conviction in any of the charging scenarios, based on open source information.
    My prediction is a conviction on desertion and a max sentence and a DD.  Hard to really picture a more egregious desertion allegation, really.  We have a combat deployed Soldier, who writes home very disparaging remarks about his command, leaves the unit, costs resources and career ending injuries (maybe deaths) looking for him, and requires a highly unfavorable prisoner swap to get him back.  That’s about as aggravating as one can imagine.  About the only thing worse would be flagrant anti-American speech in captivity.
    My hope is also a conviction on the Misbehavior charge, and another 5-10+ years confinement.  
    Clearly, any conviction will result in E1, TF, and should deny his windfall of some $300,000 in back pay along with any awards or decorations from that 5 years, and hopefully VA benefits too, and no profits from any book or movie deals.  Nobody should profit from deserting his unit in a combat theater.
    I feel these sentences are the minimums and appropriate based on aggravation, punishment, and general deterrent effect, maintaining public trust in the UCMJ application, and good order and discipline.
    I would also like to see, if it’s within the realm of possibility, any lifetime garnishment of his wages back into the coffers for his expensive search and rescue operations.  I know, I know, that’s a fantasy. But it should be a reality.
     

  41. k fischer says:

    Hard to really picture a more egregious desertion allegation, really.  We have a combat deployed Soldier, who writes home very disparaging remarks about his command, leaves the unit, costs resources and career ending injuries (maybe deaths) looking for him, and requires a highly unfavorable prisoner swap to get him back.  That’s about as aggravating as one can imagine.  About the only thing worse would be flagrant anti-American speech in captivity.
     

    Agreed.  The only thing more aggravating would be if there was evidence that he left to collaborate with the enemy.  But, what about the mitigating circumstances of his captivity?  5 years is a pretty long time to be held by our enemies.
     
    That’s where I think the government’s witnesses can come in to deflect sympathy:  “He was held in captivity for 5 years?  At least he can walk.  I’ve had 18 surgeries and will walk with a limp for the rest of my life because I had to go look for him!”/”I got shot in the head, can’t communicate, and will spend the rest of my life in a wheelchair because I had to go looking for him.”  
     
    Suddenly, I find myself not caring so much how difficult captivity might have been and want to give him Bradley Manning time.

  42. Vulture says:

    It is, perhaps, the willingness of experienced attorneys to abandon the logical constructs normal to sentencing that has lead the Defense to go judge alone.  That part about “hey we had to risk ourselves to finding him” and  “hey we had to trade these dangerous thugs to get him back” risks a pretty self serving set of arguments doesn’t it?  If you can’t find the guy in five years where you really looking, would be a reasonable question.  All the accolades to J. Nance, especially in the company he keeps.  But he isn’t going to let the Government double dip, at least not from what I’ve seen.

  43. Concerned Defender says:

    @ Vulture.  Apparently you forgot that we dedicated the largest manhunt in modern history to find Osama Bin Laden and scoured Afghanistan and other locations for a decade before finding him in 2011.  It took 10 years and our very best intelligence and military resources attempting to locate him.  So that fact that BB was able to be kept hidden in secret as a captive is not surprising, but it does raise the fact that BB himself may have been complicit in his own “wanting to not be found.”  I’d say that your argument cuts against him more than it helps.  
    To KF’s point, BB apparently is completely healthy and fit to look at.  He’s not disfigured.  He didn’t meet the fate of others who were beheaded or burned alive.  Even in his prisoner swap video, he looks a little dazed and thin, but otherwise perfectly fine.  Perhaps he had some malnourished issues, or a kidney or other problem.  But in these last few years he’s apparently been remarkably healthy.  Given the possible outcomes for him personally as a result of his desertion, I’d say he made out rather well for his 5 years in “captivity.”  Better than perhaps any POW might think they would.  And that is also quite suspect, in truth.  I’m wondering why so much apparent favor was affording BB and not the others in history who have been almost universally tortured, made into propaganda, and murdered in some brutal fashion.  I find that very suspicious.   And in total, during that time frame (2009-2014) the USA lost thousands of Soldiers in combat and tens of thousands were injured severely.  Again, if the Defense tries to lay out his “suffering” in captivity, I can attest to the suffering of people in my units who were disabled or injured or killed in theater.  
    Further, self-inflicted injuries which are the direct and proximate result of your own misconduct should not be allowed as mitigation, or if they are there should be a tempering instruction (yes, it’s JA I understand) reminding the finder of fact that it was the direct and proximate cause and result of his misconduct.  I’m not sympathetic if a bank robber has a ND with his gun and hobbles himself.  Are you?  Are you sympathetic with a rapist who unwittingly gets HIV from his victim?  
    I find those “mitigating” facts of his captivity frankly both self-inflicted and more aggravating than mitigating.  
     

  44. Vulture says:

    CD you say “but it does raise the fact that BB himself may have been complicit in his own.”  Please don’t try to suck me into your neo-categorical logic.  It’s either a fact or a may.  Not both.  That is exactly the kind of crap saying that the Judge here isn’t going to buy.  And I am quite sure that Bin Laden did not want to be found.

  45. Vulture says:

    You know CD, I didn’t mean to get all 4-ltr-word, there.  Sorry.  Judge Nance calls those “Red Herrings.”
    BTW-glad your back.
    V.