The Associated Press reports here that:

A military judge on Thursday began deliberating the punishment for Army Sgt. Bowe Bergdahl after defense attorneys asked for no prison time while prosecutors sought more than a decade behind bars.

Army Col. Jeffery Nance said he planned to spend the afternoon considering evidence and would open court again Friday morning to continue deliberating then. It wasn’t clear when he would deliver the sentence.

Bergdahl faces up to life in prison after pleading guilty to desertion and misbehavior before the enemy for walking off his remote post in Afghanistan in 2009. In closing arguments, prosecutors asked for a sentence of 14 years in prison, citing serious wounds to service members who looked for Bergdahl.

“Sgt. Bergdahl does not have a monopoly on suffering as a result of his choices,” said Maj. Justin Oshana, a prosecutor. Contrasting Bergdahl to the wounded searchers, he added, “The difference is all the suffering stems from his choice.”

But defense attorneys argued Bergdahl already suffered enough confinement during five years of brutal captivity by Taliban allies. They asked the judge to give their client a dishonorable discharge and no prison time. Their argument for leniency also cited harsh campaign-trail criticism by Donald Trump and Bergdahl’s mental disorders.

Any discharge as a result of a general court-martial will permanently deprive Sergeant Bergdahl of benefits administered by the Department of Veterans Affairs as a matter of law.

28 Responses to “Military Judge deliberating on Bergdahl’s sentence (likely between a DD and 14 years)”

  1. Concerned Defender says:

    I have to say I am pretty stunned the government would low-ball themselves, given the massive available sentence and the significant aggravation.  Particularly in light of the fact that the MJ will almost certainly give some deference to the time in captivity.   Low-balling themselves is, in my humble view, one of the largest surprises in all of this 3+ year UCMJ fight.
    I’d like to hear exactly what the government’s position was.  Is that a 14-year sentence “after all of the factoring comes into play, giving him some credit for his involuntary captivity and abuses?”  Or is the government worried that asking for 30 years, which I think would be more in line with the appropriate request, would be seen as too harsh?
    A very curious play indeed.
    I have seen Judges go above the government request/recommendation before.  This will be interesting.

  2. Cheap Seats says:

    The discourse on this site alone supports CD.  I think the prosecution asking for 35, and the Defense asking for nothing, are both appropriate requests.  Which one gains more traction…we shall see.  Also, the reporting is probably off, but did the Defense ask for a DD or “no more severe than a DD, if any punishment is awarded at all.”

  3. Concerned Defender says:

    Agree with Cheap Seats on both points.  
    I fully expected the government to cite ruined careers, injuries, wasted resources, and putting Soldiers at unnecessary risk and ask for 30 years and a DD to reflect the seriousness, citing punishment and deterrence, etc. 
    I fully expected the defense to suggest that BB has suffered enough, no punishment (or simply lose rank and suffer the conviction), and let him get an almost certain administrative discharge which would enable him to get VA treatment.
    I’m pretty shocked by both closing statements as they are (inaccurately?) cited in media.  Government seemed to low, and defense yielded the DD apparently, a move in STARK contrast to their argument that he suffered injury and PTSD… If accurate I cannot reconcile that request.

  4. stewie says:

    A DD does not necessarily automatically remove his ability to get treatment from the VA, and certainly doesn’t mean he can’t get treatment elsewhere. If the Defense thinks the Gov case was at least somewhat effective, giving the MJ something maintains credibility.
     
    What I don’t understand is not asking for 14 years or valuing the case that way, but if you are going to do that, then how could you not get a deal done?  Where you could have simplified it, gotten a stip, etc?  Or did the defense simply refuse to negotiate?
    Or did the defense do such a good job in the minds of the GOV that they felt like asking for more would have seemed unreasonable?

  5. Bill Cassara says:

    I think 14 is a very low figure.  Stewie: My recollection is that any sentence adjudged as result of an AWOL that includes a punitive discharge deprives one of VA benefits. 

  6. Concerned Defender says:

    I’m oddly in agreement with Stewie on the deal portion as well.  If the government really wanted such a relatively low figure, I can’t see how a deal couldn’t be reached unless the stip was just incredibly unreasonable.  But the top cover of 14 years confinement with life on the table would have been extremely attractive to defense in my view.  BB could easily get decades in confinement.  I was under the apparently wrong impression that the government’s figure was unpalatable-large, like 40 years.   Is it possible that the media misunderstood the request for “40” as “14?” 
    And I am not a VA expert, but I believe a DD with no prior Honorable term will remove him from disability eligibility.

  7. stewie says:

    Every time we dealt with the VA, they were VERY adamant that it was not per se disqualifying (DD) as to getting any and all services or treatments at a VA facility.

  8. Concerned Defender says:

    To elaborate on the government’s odd request, I would have thought it would be tied to some rational adjustment – for instance, the starting point is that this conduct was Dishonorable, so a DD is warranted.  No question.  Next he didn’t earn the rank, so that is removed.  Now let’s look at punishment and deterrence.  I’d suggest 1 month confinement per Soldier he put in needless harms way – so that works out to be about X number of months.  Add 1 month per $1 million of dollars wasted in search and rescue, for X number of months.  Add 1-5 years for every Soldier actually injured looking for him, based on severity of injury, for X number of years.  Add aggravation for the interruption of the missions, the 5 Taliban trade, and so forth.  
    It would be fair to factor in his foreseeable but involuntary captivity, and after factoring in the above figure, the government requests a 1-1 credit for his captivity.  And for his two escape attempts, the government believes some credit is necessary, allowing for 6 months credit per attempt.  
    The sum total after all of the above is X years and months (somewhere around 30 years).  
    That would remove arbitrariness to some extent and address some appellate issues such as getting/crafting some credit, etc. 

  9. Concerned Defender says:

    Interesting discussion on the AWOL/Desertion conviction and since I was curious I looked it up.  
    https://www.benefits.va.gov/BENEFITS/docs/COD_Factsheet.pdf
    AWOL or Desertion is a statutory bar from VA benefits.  Under the law (38 U.S.C. § 5303), a release or discharge for any of the following reasons constitutes a statutory bar to benefits, unless it is determined that the Servicemember was insane at the time he/she committed the offense that resulted in the discharge:  AWOL, Desertion…
    Perhaps knowing that he was going to be barred regardless is why the defense requested the DD as a sacrifice to avoid confinement.

  10. Some Defense Counsel says:

    CD, your calculation is no less arbitrary than any other sentence.  It has the benefit of being transparent, I suppose, but there is obviously nothing that makes a soldier’s time, exposure to danger, or the government expense translate to a specific amount of confinement.  And that’s even assuming that everyone agreed about your underlying assumptions (e.g., a certain number of soldiers were put in needless danger, a certain amount of money was wasted, the 5-for-1 Taliban trade was aggravating, etc.), which they don’t. 
     
    I’m surprised at the government’s number, because it certainly suggests a reasonable deal could have been had.  But, as others have noted, there could have been a sticking point in the stip of fact or a requirement that the defense waive some motions or witness production.  Or, and I realize this sounds totally crazy, the government, being privy to all the discovery and having heard the defense’s sentencing case, believed that 14 years was fair.
     

  11. Nathan Freeburg says:

    What interests me about this discussion is how experienced attorneys (who are usually aware that the military rumor mill/media coverage have little to no relationship to what is actually presented in the courtroom) in this thread will assume that everything they’ve read is accurate and ignore that quite possibly rather different evidence was presented in court (for example, most of the testimony the past two days was medical in nature).
    Also, CD, explain to me under what theory of admissibility the prisoner swap would ever come into evidence?

  12. stewie says:

    Nathan I’m quite ready to believe that 14 years was a reasonable request based on evidence we don’t know about, etc. As others have said, my only real puzzlement comes from why a deal couldn’t be reached if that’s the valuation by the GOV in this case?

  13. k fischer says:

    With all the talk about mental health issues, is anyone wondering about providence?  Because I might reopen providence to create more of a record about whether or not he believes that a lack of mental responsibility defense applies.  
     
    My experience with the Government and stips are that they always want you to agree to stupid crap and waive a whole bunch of stuff for more than or as much as what you might think you’ll get without a deal.  It’s been a while since I’ve gotten an “offer I couldn’t refuse” to plead at a Court-martial.  And, in this case, the Accused got to control the narrative on the charges without the Government being able to strong arm him into admitting something he didn’t want to.  And, as the lawyer in my old TDS office who, according to my OER, was detailed the most challenging cases (i.e. crazy clients), I will attest that a client with a personality disorder is hard to get to do anything rational.  I’m not surprised this was a naked plea, particularly if the Judge gives credit for pleading naked.
     
    As far as the Government goes, perhaps they think Judge Nance’s far right limit is 20 years, and they are giving him 1 year for the president’s statement and 5 years for the captivity.  I think that recommending something within the range of what you believe the Judge perceives as reasonable lends credibility to your argument. 

  14. RY says:

    Why a deal couldn’t be reached?  IMO, for the same reason there are such divergent views here.  Over the years, I’ve seen a handful of cases where the starting positions were too far apart and it took some in court testimony and evidence to see a reasonable balance.  I’ve seen deals that started in the double digits until motions were filed and testimony taken, and then suddenly it is clear that 5-6 years is really the reasonable max.  I’ve had one case where the Gov’t, after hearing defense sentencing, actually argued below the PTA max.  I’ve had another where TC fought with the GCM SJA about the sentence to ask for, noting there was no way the judge/jury would listen to a word he said, after the evidence they saw, if he went in with their desired recommendation. 
     
    In short, I think a deal was not to be had because expectations were too far apart and may have been tempered a bit by presentation of evidence. 

  15. k fischer says:

    Nathan, 
     
    How about “Effect on the listener?”  No….Wait…..
     
    Lack of Rehabilitative Potential for Society.  Hear me out!!!  BB’s so bad and dangerous that he is the equivalent to five Taliban.  They lacked rehabilitative potential after they were captured and held prisoner at GTMO, otherwise, they could have qualified for a diversity visa and been a productive member of American society. So, he should be in prison for as long as they collectively had been at GTMO.  40 years.  

  16. Joseph Wilkinson says:

    It seems a lot more straightforward than that to me (since we are talking about aggravation).  When he walked off, it was foreseeable that (#1) he would be captured, (#2) people would go looking for him, and maybe get injured or killed; and (#3) if he was captured, the U.S. would be willing to give valuable things…such as high ranking prisoners…to the enemy for his safe return, which is an evil consequence for the U.S., yet is practically inevitable given our “no man left behind” ethic.    
     
    Evidence of #2 actually was introduced, quite understandably; #3 makes sense, though I don’t blame the Prosecution for playing it more conservatively and not using it.  (They also probably did research on this issue, as I haven’t.)

  17. Nathan Freeburg says:

    JW: just no. Not even close on #3. That’s like saying that it’s reasonably foreseeable that if I commit a crime that the command will go to a lot of bother in order to court-martial me. 
    (Hint: that’s not admissible)

  18. Concerned Defender says:

    I fully agree with Joseph Wilkinson’s appraisal.  1, 2, and 3 are all reasonable, natural, and foreseeable causes/results from absenting oneself in a combat zone with hostile enemies locally, who are known to capture, torture, behead, and use people as bargaining chips. 
    Nathan Freeburg’s argument is incorrect.  

  19. Joseph Wilkinson says:

    That’s like saying that it’s reasonably foreseeable that if I commit a crime that the command will go to a lot of bother in order to court-martial me
     
    No, not at all.   See, if the U.S. is put in a position where it has to give valuable things to the enemy in order to recover him, that is helping the enemy’s war effort and hurting the U.S. war effort.  Since the whole point of military justice is to stop Soldiers from doing things that will hurt the U.S. war effort….it’s aggravating by nature.  
     
    Court-martialing him, by contrast, does not hurt the U.S. war effort, especially not if he gets a good stiff sentence.

  20. Nathan Freeburg says:

    No military judge is ever allowing evidence of #3 in (not unless they want to be reversed). (That a country that doesn’t negotiate with terrorists would negotiate with terrorists five years later is not forseeable by an E-5. Let alone the discretionary aspect (just like sending a case to court-martial.))  Nor is it probable. Or even natural.  You would also need to explain how #3 is aggravating as opposed to being positive diplomacy.  With evidence.
     

  21. Joseph Wilkinson says:

    (That a country that doesn’t negotiate with terrorists would negotiate with terrorists five years later is not forseeable by an E-5
     
    Sure it is…it’s part of the “no man left behind” dynamic, which every Soldier knows before he gets to his first unit.   If you can’t find the man with a rescue mission, you get him back some other way.
     
    The U.S. tried diplomacy with the Taliban before we invaded Afghanistan…if they’d handed over bin Laden and met the other U.S. demands, there’d’ve been no invasion.   (According to this the Haqqani network is “officially” part of the Taliban network.)  So, obviously, we had no rooted objections to negotiating with them and anyone would know this. 
     
    You would also need to explain how #3 is aggravating as opposed to being positive diplomacy.
     
    I already did.  It helps the enemy’s war effort; it hurts the U.S. war effort.  In a military court that’s as aggravating as can be.

  22. K fischer says:

    well, since the evidence is closed and closing arguments made, can someone in the know enlighten Nathan, CE, AND Joseph as to whether or not the MJ allowed the prisoner exchange into evidence as aggravation?  My money is that it didn’t come in because it wasn’t even offered.

  23. K fischer says:

    And Nathan, a better example is a Company Commander testifying in aggravation that he had to drive to Pensacola to pick up his Ranger from PTC six times for hearings  and to meet with his TDS attorney which really impacted the Regiment. Certainly it is foreseeable that when you commit a heinous crime that the command will put you in pretrial for the safety of the installation.  
     
    Not admissible.  Not even close.

  24. former JAG says:

    In all the AWOL and desertion cases I tried the judge admitted evidence of the facts and circumstances surrounding the termination of the absence.  When the kid turns himself in, it helps him.  When he is arrested by civilian cops, it hurts him.   The trade is facts and circumstances of the crime.  It should come in.
    The collateral consequences of the government’s decision argument would equally exclude the injured troops searching for BB to if that were a valid argument.  

  25. k fischer says:

    fJ, 
     
    That makes more sense to me as an argument for admissibility.  And, he pleaded guilty to remaining in a desertion status until 31 May 2014 if he pleaded guilty to the charge without substitution.  On that day, there was an exchange where 5 Taliban were traded for Bergdahl, and it was a bad deal that the United States had to make.  But, the termination by apprehension is relevant because it is codified as aggravation with an increased maximum period of confinement.  Termination by prisoner exchange is not.  I guess the Government could argue that BB would have remained in a desertion status without the exchange, so the exchange was necessary to “apprehend” him.  But, termination by apprehension is not pleaded.
     
    So, once again, does anyone know if this evidence was admitted by the MJ for aggravation, or even proferred by the Government?  

  26. Zachary D Spilman says:

    Bergdahl pleaded by exceptions and substitutions to a single day desertion.

  27. k fischer says:

    Zack/fJ,
     
    Well, if the Government didn’t prove up the offense and BB wasn’t convicted of desertion until 31 May 2014, then that circumstances surrounding his recovery would be irrelevant for Charge I.
     
    But did he plead guilty to the “wrongfully causing search and recovery operations” portion of Charge II?  Because THAT might seem to encompass the exchange, thereby making it relevant.

  28. former JAG says:

    I was ignorant of charge II’s existence – is it a 134?  Sounds like an even stronger reason for the admission of the trade – it sounds like a recovery operation.
    Did the government really not try to prove up the rest of the time-frame on the desertion?  Seems like the day he left and day we got him back would be easy to introduce, though I suppose the defense could claim that he ceased having the intent to remain away the day he was captured by the Taliban…not sure how you rebut that.