Having pleaded guilty last week without the benefit of a pretrial agreement, Sergeant Bergdahl was scheduled to be sentenced by a general court-martial composed of a military judge alone today. But the sentencing is continued until Wednesday as the military judge – Army Colonel Jeffrey Nance – considers a last-minute defense motion to dismiss. The Associated press reports here that:

The judge deciding Army Sgt. Bowe Bergdahl’s punishment said Monday he is concerned that President Donald Trump’s comments about the case could impact the public’s perception of the military justice system.

Sentencing was set to begin Monday for Bergdahl on charges that he endangered comrades by walking off his post in Afghanistan in 2009. But the judge, Army Col. Jeffery R. Nance, instead heard last-minute arguments by defense attorneys that recent comments by Trump are preventing a fair proceeding. Bergdahl faces a maximum sentence of life in prison.

Nance allowed the attorneys to question him about whether he was swayed by Trump’s comments. Nance said he wasn’t aware of the comments beyond what was in the legal motions. Nance said he plans to retire as a colonel in about a year and isn’t motivated by pleasing commanders to win a future promotion.

“I don’t have any doubt whatsoever that I can be fair and impartial in the sentencing in this matter,” Nance said.

The AP report also notes that “sentencing was set to resume Wednesday because a defense attorney wasn’t available Tuesday, the judge said.”

Colonel Nance’s confidence that he can be fair and impartial, the objective evidence supporting that conclusion (including his record and his impending retirement), Bergdahl’s guilty pleas, and the enormous publicity surrounding this case, provide plenty of reasons to reject the defense motion to dismiss that is based on the President’s recent brief reference to his prior comments in the case.

But in case that’s not enough, The Hill published this analysis by Kyndra Rotunda – a professor of Military & International Law at Chapman University and former Army judge advocate – that compares President Trump’s comments about this case to President Obama’s comments about sexual assault cases and observes:

Looking at recent cases puts this one in context. In 2013, a military judge in Hawaii found that President Obama committed unlawful command influence when he commented about sexual assault cases then underway. His remarks were specific and he was the commander-in-chief when he made them. He said, “I have no tolerance for this … I expect consequences” and called for people engaged in sexual assault to be “prosecuted, stripped of positions, courts-martialed, fired and receive a dishonorable discharge.”

The laundry list of penalties he demanded reads like a direct order. It’s specific. It’s detailed. It’s directive. To cure the problem, the judge insulated defendants from receiving the penalties listed out by President Obama.

In this case, the curative instruction would involve removing the death penalty as an option. But, prosecutors have already done that, all on their own. Their failure to seek the death penalty renders President’s Trump’s comments inapplicable. He’s called for execution. But, the death penalty is not even on the table — and hasn’t been from the get-go.

Furthermore, this is not a jury trial. It’s a bench trial, and the decision rests entirely with one judge. It is true that the law protects judges from unlawful command influence too. But, in this case, the judge has already decided that President Trump’s campaign-era remarks don’t amount to unlawful command influence. If he reverses himself, based on Trump’s recent remarks, the case boils down to whether the judge was prejudiced by Trump’s comments.

But, in any event, the proper remedy is not dismissal — it is recusal. If the judge decides he cannot be fair, he could reasonably recuse himself and step aside, instead of letting Bergdahl off scot-free.

Another notable factor is that Bergdahl’s guilty pleas give the Army options other than a court-martial if, somehow, Colonel Nance finds that dismissal is warranted and that ruling isn’t reversed on appeal.

Last year I wrote that The Army has no choice: Bergdahl must face a court-martial. That post was based on the fact that Army regulations guarantee an honorable discharge to a soldier discharged at the end of an enlistment, and the practical reality that Bergdahl’s alleged misconduct was too serious to support an automatic honorable discharge. But I also wrote that the Army could administratively determine that Bergdahl’s capture was an unauthorized absence caused by his own misconduct (see Army Regulation 600-8-4), and therefore his enlistment obligation was tolled during his absence (see 10 U.S.C. § 972), making it possible to administratively separate him for misconduct this many years later and give him something less than an honorable discharge.

Making such a determination back then would have required finding that Bergdahl did commit serious misconduct (likely depriving him of significant veterans’ benefits) without affording him the protections of a trial. Now that Begdahl pleaded guilty, however, such a determination is far less controversial.

27 Responses to “Bergdahl sentencing continued to Wednesday”

  1. Brian Bouffard says:

    It will be really something if, one day, the command structure and the judiciary take seriously the concept of apparent UCI, and begin to actually demonstrate that they care about whether our system appears fair to the civilian populace – the people on Main Street, USA who send us their sons and daughters and ought to be able to know that they will be treated fairly by the military justice system.  It seems every chance we (the advocates and judges in our system) get to honestly apply the Biagase framework to a set of facts that would be embarrassing or annoying to “higher,” and then to actually follow through with meaningful relief, we whiff on that chance.
     
    Or, to invoke the statesmanlike mien of our commander-in-chief (who has the best words; many people are saying so), “The so-called Biagase case is doing bad in the ratings. Sad!”

  2. Cheap Seats says:

    “But he had stern words and pointed questions for prosecutors about what effect Trump’s comments would have on public perception of the case. He indicated he would issue a written ruling later on the defense request to have the case thrown out over Trump’s comments.” – The paragraph right after the one quoted in the post.  Pair it with the first paragraph and it says, possible Apparent UCI.  Remember, the Defense motion was for Apparent UCI, not Actual UCI.  I think the ruling goes against the Defense, but it is no slam dunk. The article was unclear, but I wonder if the MJ asked the Government about what they could submit to overcome their burden (if he found apparent UCI was raised) and what potential remedy the Government may suffer.

  3. stewie says:

    People get administratively discharged without the protections of a trial all of the time, not sure the concern about it in this case. It would clearly have been the best result for him.
     
    MJ’s comments signal a light sentence to me.

  4. Zachary D Spilman says:

    the following process ensues when an appellant asserts there was an appearance of unlawful command influence. The appellant initially must show some evidence that unlawful command influence occurred. This burden on the defense is low, but the evidence presented must consist of more than mere allegation or speculation.

    Once an appellant presents some evidence of unlawful command influence, the burden then shifts to the government to rebut the allegation. Specifically, the government bears the burden of proving beyond a reasonable doubt that either the predicate facts proffered by the appellant do not exist, or the facts as presented do not constitute unlawful command influence. If the government meets its burden, the appellant’s claim of unlawful command influence will be deemed to be without merit and no further analysis will be conducted.

    If the government does not meet its burden of rebutting the allegation at this initial stage, then the government may next seek to prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding. If the government meets its evidentiary burden at this stage of the analysis, then the appellant merits no relief on the grounds that there was an appearance of unlawful command influence. If the government does not meet its evidentiary burden, however, this Court will fashion an appropriate remedy. 

    United States v. Boyce, 76 M.J. 242, 249-50 (C.A.A.F. 2017) (CAAFlog case page) (marks and citations omitted).

    So lets do the math.

    First, the defense has to present some evidence beyond mere allegation or speculation. They haven’t done that. Colonel Nance is unaffected, and an objective, disinterested observer, fully informed of all the facts and circumstances would very likely see that responsible officials like him, the convening authority, the judges on the CCA, and the Secretary of the Army, are similarly unaffected by campaign rhetoric and vague, offhand remarks during a press conference. Bergdahl’s UCI motion asserted that:

    President Trump’s comment cast an impermissible shadow over [the sentencing] phase. . . . The same pall President Trump cast over the sentencing phase also extends to the SJA’s and GCMCA’s critical functions . . . 

    Mot. at 3-2. That’s argument, not facts. 

    But let’s pretend the defense met its burden. The prosecution can easily rebut it by showing that the defense claims of an impermissible shadow and a pall are just that; claims. Moreover they require believing that the rest of the Government – from the career officials who make recommendations and give input on nominations, to the Senate that confirms senior appointments – will help President Trump unlawfully retaliate against anyone who shows leniency towards Bergdahl. If you think that’s likely, you haven’t been paying attention. 

    Furthermore, there’s a real debate over whether the President’s remarks (then and now) qualify as unlawful command influence, or whether they’re merely an elected official’s commentary about a significant political issue (that could, of course, deprive Bergdahl of due process, but that would require the defense show actual unfairness rather than merely the appearance of unfairness). 

    But let’s pretend the defense claims are substantive and the prosecution fails to disprove them. The next question is whether the objective observer would harbor a significant doubt about the fairness of the proceeding. Bergdahl pleaded guilty, so there’s nothing unfair about his convictions. As for his sentence, there’s going to be a contested sentencing hearing. An objective observer needs to see that hearing and the evidence presented by both sides before he can determine whether the proceeding is unfair.

    Nevertheless, let’s pretend that something about the President’s comments will make Bergdahl’s as-yet unknown sentence unfair. Bergdahl wants the charges dismissed as a result. The military judge can do that, but shouldn’t. The remedy for unfairness in the sentencing proceeding is a reduced sentence, not reversal of guilty pleas.

  5. vulture says:

    Zach, none of that is math.

  6. Lone Bear says:

    I don’t see how a reduced sentence is a remedy for UCI, it does nothing to cure the process. Did he get a fair process, a fair referral decision, did he have a fair way forward to contest the charges, can he get a fair sentencing hearing, fair consideration on clemency and appeal? The President called for his execution, how can he be treated fairly? Once UCI is raised by some evidence, the government must disprove it beyond a reasonable doubt. How do they achieve that in this case?
     
    At least a dismissal would force a government appeal which would likely end up at CAAF, and then some guidance might be given on how or if to proceed when the well has been poisoned. 

  7. Zachary D Spilman says:

    It felt like math to me, vulture!

    Your comment doesn’t make much sense, Lone Bear, when the defense motion is “to dismiss the charges and specifications for apparent Unlawful Command Influence” (emphasis added). In other words, even the defense agrees it’s not actually unfair, it just looks unfair.

  8. Vulture says:

    That answer works.  Proceed to march.

  9. Concerned Defender says:

    Zach’s analysis is 100% spot on.  I’d add that it would be irresponsible to fail to accept BB’s GUILTY PLEA, and likewise irresponsible to do anything short of a severe sentence, measured in decades and a punitive discharge (DD).  
    It’s unclear how alleged LAWYERS comment that it was somehow UCI that got a GUILTY MAN to his trial…  Obama was the CiC that accounted for every step until recently.  So how is Trump’s statements UCI?  The arguments Trump has committed UCI fall totally flat.
    As for the public perception on sentencing… go read ANY military forum.  I challenge you to tally the # of BB sympathizers against those that want him hung, shot, call him a traitor, or want him confined for life.  In my non-scientific readings on various news and military forums it’s about 99-1 in favor of severe punishment vs. leniency.  To that end I also think a light sentence totally undermines the military authority and the UCMJ and discredits the service.  If he gets a light sentence I’d expect to see a lot of disgruntled Joes and a kick in the stones for morale.  I suggest MOST people believe he’s a traitor who abandoned his unit, anti-American, and cost a lot of lives and money and a bad trade.  

  10. stewie says:

    So confidence in the system not a big deal to you Zach? Looking unfair is a pretty good reason for a reduced sentence.

  11. Richard Beer Froth says:

    Mr. Spilman, apparent UCI is a real thing, and can warrant a real remedy at times.  I’m a bit confused by your posts here and in earlier threads—do you not acknowledge apparent UCI as a legal doctrine that can warrant relief?

  12. Zachary D Spilman says:

    My comments and posts on this topic speak for themselves, stewie and Richard Beer Froth, despite your inability to understand them. 

  13. Vulture says:

    Bowie Bergdahl may be getting exactly what he deserved, but somehow this procedure is off.  About this UCI, the MJ is using the same reasoning that General Abrams did when he said something like “I am not going in higher.”  From a four-star that is a ruse.  But the MJ is saying “I plan to retire a Colonel.”  When enough people are saying “There are no stings on me” some body is Pinocchio.  HUH! is math too.  (think factorial).  But a lot in this case can make you say that.

  14. Saul says:

    Doesn’t seem all that complicated.  But no matter the decisions Judge Nance makes, this will continue to be a hot topic.  A few comments and assumptions I’m making.  Tell me where I’m wrong.
    1. COL Nance, the SJA, GCMCA and TC all are not influenced in this case by the POTUS.  
    2.  Some people will argue that the decision / sentence was influenced, regardless of the actual sentence. 
    3. COL Nance needs to make the record clear here.  I don’t know how much detail on the factors that influenced his decision that entails, but I’d think more than in the standard case. 
    4. It’s not a particularly good thing when the CINC becomes a punch line in the court-martial; but MAJ Oshana was spot on with his comment that the President’s words were “not the best constructed”.  I don’t envy his having to defend those comments. 
    5. This case can actually help the reputation of Military Justice by making it clear that nobody is influenced by 45’s comments. 
    FTR, I’ll bet he serves less time in our system than he did in theirs. 

  15. stewie says:

    I understand you just fine Zach, you concede reduction in the sentence is certainly technically correct but you sure seem to not be personally convinced of that otherwise, and you seem rather dismissive of the concept of apparent UCI at least as the President is concerned.

  16. Concerned Defender says:

    I don’t take too seriously the legal or mental prowess of someone arguing that a person who committed a flagrant and obvious serious crime(s) and who has pled guilty to them in the face of OVERWHELMING EVIDENCE of same, is somehow facing a CM or sentence unfairly due to obscure comments by someone with no real direct influence or authority.  It’s a near impossibility for POTUS Trump to negatively impact this trial at any stage, and the MJs have made it clear they aren’t themselves concerned with UCI … 
    So who is in a better position to make that call, the peanut gallery or the soon retiring MJ doing the CM?

  17. Zachary D Spilman says:

    So long as you call it apparent UCI, and not the appearance of UCI, we’re just going to have to disagree, stewie.

  18. stewie says:

    those are functionally in normal human words the same thing Zach. Only a lawyer would attempt to have a parsing out of those two words. If you have apparent something it means you have the appearance of something.
     

    manifest to the senses or mind as real or true on the basis of evidence that may or may not be factually valid

    died of an apparent heart attack”

    That’s the entire concern, that others might view it as UCI even if factually it is not.

  19. Shawn says:

    I’m not an attorney, but I am a vet.  What’s needed, here, is the concept of a mandatory minimum sentence, like what civilians can face.  It would be wrong for him to walk, and a typical minimum would suffice while making the UCI issue moot.  I’d rather we did not feed and house him for life.

  20. Ganthet says:

    @Shawn – so you would favor the creation of a military supervised probation system, then?  This is the minimum sentence available in many superior court civilian jurisdictions for most non-violent offenses where the accused does not have prior felony convictions. 

  21. Saul says:

    Isn’t the “military supervised probation system” simply keeping the Soldier on active duty? 

  22. Capt Nick Stewart says:

    I am not an attorney, but I am a vet. What we do not need in this case, in any case, and what civilians also should not face either, is a mandatory minimum sentence. We already too frequently indulge our whims to wield such handy things as “zero tolerance” policies. A mandatory minimum in criminal justice is equally whimsical, including the rare instance to which it applies in the UCMJ. We can design machines to robotically apply zero-judgment rules without regard for the unique facts of a case. Our habit of crafting something to apply to everything is, imho, lazy. It’s easy. It removes the need to exercise judgment, the need to think. A mandatory minimum qualifies for that description. Examples of injustice wrought by mandatory minima are not difficult to find. Justice calls for judgment, not just jail. As for the BB case, UCI, and an appropriate sentence, I offer no opinion. Thank you.

  23. That Guy says:

    If we cared about public perception—there would be cameras allowed in the courtroom. We are not the Supreme Court.  We are at a trial court level. Personally, I think it is a shame.  People like the accused, someone subject to the UCMJ, calls it a kangaroo court.  Education, public perception of MJ, an allowing the light of the public to see (literally) what MJ really is. #RantOver   

  24. Robert Lyons says:

    I’m not a lawyer, but have followed the CAAF/Service Courts  for a number of years, originally due to their consideration of cases in my area of profession/expertise (clergy/chaplaincy privileged communication).   Please allow me to opine on this,  excusing my lack of legal sophistication.
    UCI works in a number of ways, and at a number of levels – to either urge subordinate commanders to prefer charges or not;  or, once preferred,  to determine the actual charges; it then moves to the findings phase, (guilt, acquittal, or LIO); and then  to sentencing (where we are now).
    Now a bit of observation:  When Bergdahl was returned, to the lauditory celebration and feting of the then-current Commander-in-Chief, could it not be argued that his comments in the Rose Garden praising Bergdahl could be construed as UCI, in favor of NOT preferring charges?  It didn’t work.  The GCMCA was obviously not influenced.  So why would we expect that a campaign comment, followed by an oblique reference to it, would influence Judge Nance?

  25. Concerned Defender says:

    @Robert Lyons –
    That is a very astute observation RL, and that is indeed my take on the facts as well.  Praising BB as a hero, the surprising and political grandstanding victory lap, etc. certainly influenced at least some of the dishonest brokers like the IO in my view.  As you recall the IO, a lawyer, oddly couldn’t find any serious crimes.  Go figure…  But I don’t think UCI works in that direction, or at least I’m unaware of any case law stating that UCI worked against taking punitive action.  Maybe my more learned colleagues can weigh in.
     

  26. Robert Lyons says:

    Thanks – that I can make a positive contribution outside my profession is humbling.
    As to the absence of case law, there would probably be a lack of it. If charges are never preferred, there is nothing to appeal. 

  27. Concerned Defender says:

    RL – another astute point.  If a lower commander wants to prefer charges, but the CG for instance doesn’t, he simply won’t refer the charges.  Then there’s really nobody to argue to any Judicial authority about the issue.  I applaud the courage of the CG in BBs case for ignoring the absurd IO recommendation to basically do nothing, and instead refer the case to trial.