In a published decision issued yesterday and available here, a three-judge panel of the Army CCA affirms the findings and sentence in the Bergdahl case.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later, in March of 2015, Bergdahl (then a Sergeant) was 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.

Bergdahl’s case made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016, and the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press before trial, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.

Eventually, however, Sergeant Bergdahl pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and the CCA’s opinion noted that Bergdahl “made clear to the court that he believed the appropriate punishment was a dishonorable discharge.” Slip op. at 6. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge.

During that time, Bergdahl’s case captured the attention of the late Senator John McCain, and of then-candidate and later-President Donald Trump. Specifically, Senator McCain threatened hearings if Bergdahl received no punishment, and President Trump made numerous statements and tweets about the case, both before and after his election, including calling Bergdahl a traitor and calling the adjudged sentence “a complete and total disgrace to our Country and to our Military.” Slip op. at 6 (punctuation in original).

After Bergdahl was sentenced, the defense matters to the convening authority that included a post-sentencing tweet from President Trump but requested only that the case be sent to a different convening authority for possible clemency. The defense did not request sentence reduction. The convening authority did not transfer the case, and approved the findings and sentence as adjudged.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not made any request for clemency, on appeal Bergdahl “contend[ed that] unlawful command influence [UCI] was so endemic to [his] trial and the post-trial processing that [he] was denied a fair trial, or fair post-trial processing, or the appearance thereof.” Slip op. at 1.

The CCA rejected the claim in yesterday’s decision, with a majority of the panel reaching the unsurprising conclusion that, even considering the cumulative impact of all of the potential UCI:

the cumulative effect could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding.

Slip op at 18-19.

One judge dissents, however, writing that:

The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.” In light of these recommendations from senior leaders who looked closely at appellant’s case, the military judge’s ultimate sentence was hardly a windfall, and it would have been conceivable that the convening authority could have provided additional clemency. Contrary to the majority’s holding, I find that UCI infected that critical post-trial process.

Slip op. at 28-29. Accordingly, and despite the fact that Bergdahl specifically requested a dishonorable discharge, agreed that a dishonorable discharge is appropriate, and did not request mitigation of the dishonorable discharge from the convening authority, the dissenting judge believes that:

Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet.

Slip op. at 29.

31 Responses to “The Army CCA finds some of President Trump’s comments about the Bergdahl case improper but nevertheless affirms Bergdahl’s pleas of guilty and the adjudged sentence (including a dishonorable discharge that Bergdahl specifically requested)”

  1. Fisch says:

    The Majority took 12 pages and 19 single spaced footnotes to explain that it wasn’t UCI and even if it was a disinterested observer would not think it was UCI or that Bergdahl received an unfair trial.  The dissent took 5 pages and 2 footnotes to explain that it was and suggested a very logical remedy.
     
    CAAF should be thankful that Judge Ewing wrote an excellent opinion for them to unanimously adopt and summarily reverse.

  2. Fisch says:

    And to piggyback off a previous Scholarship Saturday article regarding UCI, I think this opinion, Barry, and Boyce make it clear that Article 37 should be expanded to include a provision stating that “No person subject to this Code shall be improperly influenced in executing their duties under the UCMJ by any military or civilian authority and shall recuse themselves from executing their duties under the UCMJ if so influenced.”

  3. Vulture says:

    This case presents a different opportunity.  Bergdahl got what he deserved, but others may not.
     
    It might be better to find ways to strengthen the ability of the MJ to remedy UCI as they see it.  I doubt a more fair judge exists than J. Nance.  Also, for whatever errors he made later, Judge Spath seems to have been on the ball with Barry.  So bolstering the basis for those decisions may present the longer term benefit.  All that SJA and CA interconnection is just to wacky to cure.  I read Barry a lot differently than some posters.  I think that the parties started to change their stories when the specter of prosecution for UCI appeared.  
     
    So Defense counsel would do well to do what E. Fidell did, and CAAF is seeming to require now.  Object early, object often.  Present the possibility of UCI at the first hint, lest it be waived.

  4. J.M. says:

    Bergdahl plead without a PTA and got what he asked for. Had this not been a plea deal, and the sentence being what was asked for, I’d be inclined to maybe take their claim seriously enough for more then a entry in Sensible Chuckle monthly.

  5. Anon says:

    Trump: “Bergdahl should be executed for treason”
     
    Zach: [ ]
     
    Bergdahl defense:  “The President’s comments warrant relief”
     
    Zach:  “That’s outrageous!”

  6. Zachary D Spilman says:

    The idea that Bergdahl didn’t get a fair trial (when he pleaded guilty), a fair sentence (when he got only very slightly more than exactly what he asked for and agreed was appropriate), and a fair shot at clemency (when he didn’t ask for clemency), is laughable. If not outright frivolous.

    As for the President’s remarks, the clutching of pearls would be more convincing if it wasn’t from the same people who, if the President said the sky is blue, would accuse him of denying the existence of clouds. And nighttime.

  7. Vulture says:

    No, but they would defend it as being of color.

  8. AD2 says:

    Zach’s position presupposes a traditional prejudice analysis.   This was Judge Ryan’s position in her Boyce dissent.  The Boyce majority held that prejudice (or lack thereof) to an individual accused is not dispositive in this area of the law.

  9. Zachary D Spilman says:

    The Boyce majority (that included then-Chief Judge Erdmann, whose term expired two years ago) held that:

    the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.

    United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (CAAFlog case page).

    That is shown by:

    demonstrat[ing] the following factors in support of a claim of an appearance of unlawful command influence: (a) facts, which if true, constitute unlawful command influence; and (b) this unlawful command influence placed an intolerable strain on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.

    Boyce, 76 M.J. at 249 (marks and citation omitted) (emphasis added).

    Any objective, disinterested person informed of the facts of Bergdahl’s misconduct, admissions, plea, sentence request, and non-request for clemency would harbor no doubts whatsoever about the fairness of the proceeding. As I wrote above, the idea that any part of his court-martial was in any way unfair is laughable.

  10. Fisch says:

    Zach, 
     
    Good points.  I don’t know why Bergdahl’s defense didn’t ask for the DD to be disapproved based on the public castigation of the sentence, which is mitigating because for the rest of his life he is going to have to look over his shoulder out of fear that some crazy is going to kill him because he didn’t get the justice he deserved.
     
    Couldn’t the convening authority sua sponte provide relief at the clemency stage?  I voted for POTUS, so please don’t lump me in your group of hypocritical pearl clutchers.  I am just sick and tired of members of Congress and the office of POTUS, many of whom have no military and/or prosecutorial experience, telling the military how to run justice, and any Judge Advocate who allows politics to dictate how they conduct justice, specifically, I am referring to a former EPA lawyer, former community organizer, and former real estate developer, none of whom has a scintilla of military experience.  Heck, at least Claire McCaskill was a prosecutor.
     
     CAAF could have nipped this in the bud about 6 years ago, but failed to do so, and when they finally enforce unlawful influence exerted by POTUS it will all be seen as political.  I, personally, don’t like that a guy who commits a crime, pleads guilty, and doesn’t ask for clemency has his DD disapproved just like I wouldn’t like a child molester not be convicted when her defense attorney has some pretty damaging evidence against her suppressed that would have prevented the panel from acquitting her.  But these unfortunate results, i.e. the guilty going free, allow the system to be stronger to ensure that our trials are fair and are perceived as fair.  That’s a pretty big deal, and anyone who practices military law who thinks the system as a whole is fair and is perceived as fair is an idiot or is lying to himself.  
    Right now, the rider of the horse has let go of the reins and the horse has spit his bit.  Who knows what the next POTUS is going to do or say.

  11. stewie says:

    Zach, you act as if Bergdahl came to these decisions in a vacuum. That is he “requested” DD because it was the reasonable punishment that he would accept. Not because despite two separate legal entities looking at his case and recommending something much less, and possibly because the CiC was advocating for significant penalty and the effect that could have on a factfinder, and because he was facing a significant punishment, he then was in a position where offering a DD was probably an acceptable compromise.
     
    So no, it wasn’t “outright frivolous” to make the argument that the CiC’s statements caused a trajectory change from possibly NO TRIAL AT ALL, to a trial with a DD as a reasonable compromise. Whether it ultimately succeeds was not the point, it was a fair argument to make.
     
    An objective, disinterested person might see a system where there wouldn’t have been a trial but for the President’s remarks. So the fact that the trial itself didn’t result in any jail time doesn’t really address that. This strikes me as more your disdain about criticism of Trump in this situation than any legal argument. It’s one thing to say it doesn’t reach UCI, reasonable legal minds can come to that conclusion.
     
    Calling it frivolous is…well, it’s frivolous.

  12. Zachary D Spilman says:

    You get your own opinion, stewie, but not your own facts.

    Bergdahl didn’t merely “request” (air quotes yours) a DD, he personally and explicitly acknowledged – during a lengthy colloquy with the military judge – that it was an appropriate punishment for the offenses to which he pleaded guilty. The CCA’s opinion explains:

    As part of appellant’s sentencing argument, he specifically requested the judge sentence him to a dishonorable discharge. Prior to requesting the dishonorable discharge, the military judge discussed this request and the consequences thereof at length with counsel and with appellant. Appellant made clear to the court that he believed the appropriate punishment was a dishonorable discharge.

    Slip op. at 6. The notion that Bergdahl did that because he feared greater punishment (and then either didn’t tell the military judge about it or lied to the military judge about it) is pure fantasy.

    Next, while “two separate legal entities look[ed] at his case” – meaning (I assume) the AR 15-6 investigator and the Article 32 preliminary hearing officer – neither of them “recommend[ed] something much less” than the adjudged and approved sentence of dishonorable discharge (at Bergdahl’s request), forfeiture of $1,000 pay per month for 10 months, and reduction to E-1. Rather:

    The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.”

    Slip op. at 28. Furthermore, the Article 32 PHO concluded:

    I recommend a Special Court-Martial (not empowered to adjudge a Bad-Conduct Discharge). This recommendation is due primarily to the fact that I heard no evidence demonstrating that anyone was killed or wounded during the search and recovery operations for SGT Bergdahl. Because of the new Article 32 Preliminary Hearing construct established by Congress in the 2014 National Defense Authorization Act, I was unable to conduct an independent and impartial investigation into the issue of casualties and was limited to the evidence presented by the parties.

    Art 32. report at 1 (available here) (emphasis added). It’s more likely that the convening authority had evidence of casualties or thought a trial was the place to address that issue than it is that he was somehow cowed into a referral decision. Nevertherless, Bergdahl received no confinement and no punishment that a straight special could not adjudge, other than the dishonorable discharge that Bergdahl himself explicitly requested and told the military judge he believed was appropriate.

    Finally, there’s simply no honest argument “that the CiC’s statements caused a trajectory change from possibly NO TRIAL AT ALL, to a trial with a DD as a reasonable compromise.” For starters – as discussed above – a dishonorable discharge was not a compromise but rather was an explicit request by Bergdahl for what he acknowledged was appropriate. But more importantly, Donald Trump did not become President until long after the referral decision was made. Bergdahl was charged in March, 2015. President Trump didn’t even announce his candidacy until three months later, on June 16, 2015. The charges were then referred to general court-martial in December 2015, more than a year before then-citizen Donald Trump (who cannot commit UCI any more than any other private citizen can commit UCI) became President Trump.

    An objective, disinterested person would not blame President Trump for charges preferred before he announced his candidacy, a referral decision made long before he was elected, and a dishonorable discharge that was requested by the accused, not just because of linear time but also because the referral decision was more likely the product of Bergdahl’s courting of celebrity status. Specifically, after he was repatriated, Bergdahl engaged in a dialogue with filmmaker Mark Boal that resulted in roughly 25 hours of tape, and then Bergdahl gave the Serial podcast permission to use those recordings (according to the Serial podcast; link to episode transcript).

    As reported here, the referral announcement was made just a few days after NPR announced that Bergdahl’s story was the focus of season 2 of the Serial podcast.

    Ultimately, Bergdahl is blaming President Trump for something he brought upon himself.

  13. slyjackalope says:

    Since when has Stewie ever let the facts (or the law for that matter) get in the way of whatever opinion he’s spewing at the time.
     
    It’s ridiculous that anyone in the chain of this court-martial was even remotely influenced by a presidential candidate.  Bergdahl was lucky that the military judge exercised independent judgment and wasn’t influenced by anyone’s opinion or else he would still be sitting in confinement.  Anyone who doesn’t think that desertion in a combat zone warrants a dishonorable discharge or dismissal, please raise your hand (then slap yourself with the other hand).

  14. Vulture says:

    An interesting course of action you recommend sly.  My guess is that it sits on the same plateau as the way you deal with traitors.  And why was Bergdahl so “lucky” to get independent judgement?  Isn’t that what judges are supposed to be?  Do they need to have a commander commit UCI before they decide to be independent?  Yeah, umm, I gonna go with the CAAF needs to take this case option.
     
    If BB didn’t get a DD this case would have never seen an appellate court.  It would have been flushed down a Gunston Road sewer pipe because it was so ugly everyone wanted it to just go away.  The CA was gonna approve it, the SJA would tack on his SJAR addendum, and it would be tucked into a Ft. Belvoir cubicle before the Defense got the Final Action.
     
    Bowie Bergdahl might be the case that the UCMJ was built for.  He got what he had coming, I’ll agree to that.  But Defense counsel, and judges, hell even the Government, have to be empowered to combat UCI as it occurs.  So the DD gave him and appeal and, celebrity status seeking or not, he is entitled to seek relief.  CAAF even came up with a new term for UCI, Dismissed.  Make them explain it.

  15. Zachary D Spilman says:

    If BB didn’t get a DD this case would have never seen an appellate court. 

    Paging Dr. Cox.

    See also United States v. Hathorne, 71 M.J. 200 (C.A.A.F. 2012) (CAAFlog case page).

    Also:

    He got what he had coming, I’ll agree to that. 

    CAAF denies review in so many cases that it didn’t fill its oral argument calendar this term or last term or the term before that. A shitbird who got what he had coming getting a grant, when so many appellants with so many issues get nothing, would be horrifying.

  16. Rachel E VanLandingham says:

    Zach’s immature bias is glaring in his statement, “[a] shitbird who got what he had coming getting a grant, when so many appellants with so many issues get nothing, would be horrifying.”  Shitbird?  Really, Zach?  Glad those with judicial appointments don’t agree with Zach that only those he deems “deserving” are warranted appellate review, versus gee I don’t know, those with legal issues…  So where does Zach’s multi-year rage against Bergdahl come from — unless this all reflects (and he’s been raging for years now) that he simply agrees with Trump that hell, we should have just pushed this mentally ill “traitor” out of an airplane and not wasted time with a court-martial. And Zach, in case you forgot, there was apparent UCI by Senator McCain PRIOR to referral if that doctrine means anything, Nance and ACCA’s views notwithstanding — Stewie was inaccurate in that it wasn’t CINC UCI (yet) that originally cast that intolerable strain on the military justice system…it was that indefatigable Senator McCain, whom I revere, but he wasn’t perfect. So you don’t get to pick your own facts either, Mr. Angry. :) The above was really disappointing.

  17. Vulture says:

    Hey Zach.  On the page you point me to, go the the subject heading “A question of etymology.”  It refers to a term of sub-jurisdiction, posed by the present accused attorney.  Maybe you are not the oracle you profess to be. 
    The logic that these other guys didn’t get cases heard so Bergdahl shouldn’t be heard doesn’t hold water.  Perhaps the public sentiment might have been accepting of the President’s childish rants because no-one thought they were important.  But a quick look at the “fake news” would dispel that now 1) his comments on congress women 2) saying that he was glad to help with Gallagher.  
     
    I am too busy this morning to find a quippish Youtube video.  But if you really must jerk somebody off I can point to some choice websites.  (Don’t know if that last comment was necessary, but watch who you call shitbird.)
     
     

  18. stewie says:

    Are you kidding me Zach? You’re citing a colloquy during providency to cite for the proposition not that Bergdahl was making the best of a bad situation (because of course he was) but that no he REALLY thought it was a great deal?
    A colloquy that, if he fails, he goes before a panel who has a real chance of sentencing him to extended jail time?
    You think he did that not for that reason, not because he had, I don’t know, what do they call it, oh yeah, a plea bargain!
    You think he didn’t bargain because he thought it was the better option than going to trial and risking jail, you know like every person who’s ever plea bargained. No, he did it because he thought it was a fair option and he was totally cool with it.
    Furthermore, you don’t think a SPCM not empowered to adjudge a BCD isn’t vastly different than a DD? One means you have a GREAT shot of getting all of your benefits with a general under honorable conditions discharge, and one means you lose everything. A straight special is not much more than a glorified A15, particularly if no jail time is attached to it.
    Have you actually been a defense counsel? I am beginning to doubt it, or you’ve completely forgotten what the process is.
    Are you kidding me? Is this April Fool’s Day? Do you smell toast? This has to be the worst argument by far you’ve pushed on here, and usually while I disagree with you about half the time, I don’t think I’ve remotely seen you try to make as ridiculous an argument as you are right now, which brings me back to this is probably as much about Trump as anything else.
     

  19. stewie says:

    Correction: I missed that he pled naked. That doesn’t change anything. You don’t plead naked unless you:
    1. Can’t get a deal with the government
    2. Fear what a contested case can bring.
    It doesn’t change the point that Bergdahl was afraid of the consequences of contesting the case, and pleading was the result that led to the best possible result, not that he was doing it because he was great with getting a DD or thought it was a good result. He did it to get the benefit of pleading guilty, and because he obviously couldn’t get a deal with the government.

  20. Anonymous says:

    “It’s ridiculous that anyone in the chain of this court-martial was even remotely influenced by a presidential candidate.”
    Maybe not a presidential candidate, but Trump became POTUS 20 Jan 16 and Bergdahl was sentenced 4 Nov 17, so one has the post trial process to contend with. I don’t believe some of you realize how 3/4 star promotions and appointments are made.  The POTUS nominates candidates, not the branch, to 3/4 star positions to the Senate for confirmation. Unlike 99% of JAG’s, officers that are convening authorities usually do have aspirations to attain a 3/4 star position/retirement. If you believe that NO senior officer in Bergdahl’s chain of command wasn’t influenced, even slightly, by possibly pissing off the POTUS and having a great chance at tanking their future career aspirations, I have some ocean front property in Wyoming to sell you. If people weren’t influenced, why was GCM convening authority retained at the 4 star level to begin with? Optics of a political hot button that could’ve blown up in senior Army, and DoD, face badly.

  21. Zachary D Spilman says:

    Your claim that “Bergdahl was afraid of the consequences of contesting the case,” stewie, is pure speculation.

    The facts, however, are that:

    –There was significant evidence of Bergdahl’s guilt (including a confession);

    –Without a court-martial, Bergdahl would have received an honorable discharge;

    –Bergdahl elected trial by military judge alone without asking even a single member a single voir dire question;

    –Then he pleaded guilty (conditionally, says the CCA, meaning that there was an agreement with the Government);

    –Bergdahl received the dishonorable discharge that he requested and acknowledged was appropriate;

    –Then Bergdahl did not request any clemency; and finally

    –Bergdahl did not claim sentence inappropriateness at the CCA.

    Bergdahl received the punishment he requested for the offenses he admitted to committing, courting celebrity status along the way.

    His case presents no evidence of unfairness in the military justice system.

  22. stewie says:

    If you’d spent a day as DC ZS then you wouldn’t say it was “pure speculation.”
    Every decision to plead guilty or do a plea is about balancing fears. Fear of the rights you are about to give up versus the fear of what will happen if you plead not guilty. To do a deal is to find an acceptable balance. To plead naked usually means you couldn’t find that balance but the fear of going contested is so strong that you give up your protection ANYWAYS for the HOPE that making that move curries enough favor to get  you a fair deal or at least one that you can live with or that is very likely better than what you would get otherwise.
     
    Bergdahl would NOT have received an honorable court-martial without a discharge. I disagree with your argument now as then that they couldn’t have admin discharged him with a general discharge first of all. They could have done a deal where he did a non-misconduct based discharge under a general discharge as another option.
    Second of all, they could have done a deal where he did a discharge in lieu of court-martial, and while the vast majority of those are BCDs they don’t HAVE to be.
    Third, so what they he asked for trial by judge alone? Everyone knows COL Nance was a very fair sentencer. Everyone knew that a panel would a possible nightmare.
    If he had a deal with the government, then we are right back where I said, which is that he HAD to plead guilty to get a deal.
    The sentence wasn’t “inappropriate,” that’s a ridiculously high standard that no one is going to argue. That has nothing to do with the IAC claim raised and is a non sequitur.
    The idea you keep pushing that he “requested” the punishment he got as if it wasn’t the best he thought he could get under the circumstances again makes me think you have a blind spot for a “shitbird” or you have Trump issues or you haven’t tried or defended many cases or a combination. I don’t know. But it’s not based on a solid, reasoned legal analysis.
     

  23. Retmojag says:

    The level of discourse, whenever Bergdahl is the subject, seems to drop to something less than a sandbox level.  It gets to the point that Bergdahl becomes a cultural phenomena rather than the subject of an appeal.
    Zack:  The question of a fair trial isn’t only limited to whether the judge issued a fair or lenient sentence, or whether the plea was taken correctly.  In terms of the DD, he certainly entered into a colloquy with the judge and made a knowing and intelligent decision to seek this life-limiting punishment.  I agree that the term “request” seems a bit light when one considers that there is a waiver involved.  But, one question before the ACCA was whether there was UCI which made it unlikely he could have had a fair trial regarding the various rights he is entitled to, either separately or as a whole (like all persons accused) and whether the government proved beyond a reasonable doubt that UCI did not infect the trial.  The ACCA decision is simplistic and it invites a CAAF grant if Bergdahl seeks one.  They could have conducted a better analysis, regardless of which way they ruled. 
    It seems, because of the way that UCI has been redefined such as in Boyce, that “beyond a reasonable doubt” is a high hurdle for the government to contend with and one that ACCA wafted over like the frosting or a cheap sheet-cake for a kindergarten party.  I suspect that because of the unique aspects of a commander in chief making direct and specific statements about a singular court-martial there will likely be a unique test – and one not likely to be applicable to other UCI appeals that, say, an O-6/7 makes on a base about drug use.  This is the type of argument we ought to be having:  e.g. whether a candidate who becomes president can commit UCI and what it is the standard?

  24. stewie says:

    well Zach says it’s frivolous Retmojag so I cannot imagine CAAF granting cert.

  25. Fisch says:

    I was just sticking around to read the comments, but I have to comment that I lol’d when I read a comment that questioned whether Zack spent much time as a defense counsel.  I’m sure Zack shook his head and sang a verse of Simply Red’s greatest hit.
     
    Was his comment that the appeal was ‘frivolous’ a bit of an exaggeration?  Yes.  Considering that one of the ACCA judges dissented and agreed with Bergdahl that relief should be granted I would agree that his appeal is by no means frivolous.  But, to say that Zack is just on a Bergdahl hating tirade and has ‘Trump issues’ based on his rational and civil comments and post betrays the fact that the majority of judges on ACCA agreed with him. That would be like someone accusing Stewie of having ‘Obama issues.’  

  26. stewie says:

    A bit of an exaggeration? A huge exaggeration. Calling him a “shitbird?” Also not very professional or measured or indicating that he’s neutral and not on a tirade. Arguing that believing Bergdahl feared a greater punishment when pleading naked is “fantasy?” Pure ignorance if he’s never been a DC before. If your response indicates that he has great experience as one, then either he somehow never did a guilty plea/pled naked, or he’s not being truthful or at best grossly disingenuous. You don’t plead naked UNLESS you fear the consequences of doing otherwise (and you can’t get a good deal from the government). Otherwise, you’d just contest. That’s pretty basic, yet Zach seems mystified by the concept. The fantasy is the idea that he pleaded naked and asked for a DD because gosh darnit, that’s exactly what he deserved and he’s totally cool with it and the folks who recommended a lesser result throughout the process totally were way too lenient.
     
    Citing what a majority of judges agree (or disagree with) on the “speed bump to CAAF” in support of Zach’s claim of frivolous?
    Not really persuasive…and they did not “agree” with him on the claim that it was frivolous. They agreed with him that ultimately it wasn’t an issue…a holding that I’ve already said twice reasonable attorneys can disagree on, and the main point of my divergence from what Zach has typed here. So, a bit of a non sequitur.
     
    If Zach or anyone else wants to say, I think ACCA got it right. Eh, maybe. UCI isn’t filled with defense appellate victories to begin with, and ultimately it is harder to win such a case when you’ve pleaded guilty.
     
    What Zach has put forward here has gone way past that…to the point that yes, given he ordinarily gives reasoned legal analysis, makes me wonder what’s changed in this case to lead him to analyze in a quite unreasonable way.

  27. Fisch says:

    You’re right, Stewie.  Calling a guy who abandoned his post during wartime and into the hands of the enemy a ‘shitbird’ is not measured at all.  Rather, Zack should have completely disregarded the pre-offense statements he made to his father and others, then given deference to and recognized his Rambolian qualities and compared him to Audie Murphy, instead of assessing his character as a shitbird. 

  28. stewie says:

    Plenty of accused on here have done far, far worse. Rape, murder…but sure, shitbird is totes professional.

  29. Fisch says:

    Stewie, 
     
    I just realized that your perception is a bit biased, particularly in light of the zealous defense you have provided for 44’s UCI.  It just so happens that you are now defending Bergdahl by saying that rapists and murderers are way worse, so he shouldn’t be called a shitbird, a term that many Marines use to describe a Marine who sucks at being a Marine.  But possibly, is it that the less egregious Bergdahl’s abandoning his post is, the less the POTUS with whom you have pro-bias issues looks like a moron for his Rose Garden presser and horrible trade deal?  Seriously, bias goes both ways…..

  30. stewie says:

    first of all, I didn’t “defend” anything. I recognized that an idiot with at least some mental health problems doing something stupid that ended costing him five years of torture, doesn’t compare to someone taking someone’s life or raping them. (Or molesting them as children, or a host of other more serious offenses). Offenses which make up a large number of the accused discussed here. I recognized that the myriad number of these folks haven’t been called names on here.
    But somehow, Bergdahl is different. Somehow, we throw out prior custom because he’s just. that. bad. Somehow. We have to make ridiculous arguments about why people plead guilty. We have to call arguments that gained a dissent “frivolous.” We have to call folks “shitbirds” by people who run this blog. Is that how it works now? Can I call each appellant in each case a variety of nicknames given the severity of most of the offenses here? Everyone ok with that?
    But your last sentence belies your own bias (which quite frankly was already pretty apparent). If Obama had said the things Trump said, I’d have said it was BS. If Trump had only said “sex assault is bad, we should kick out the folks that do it,” I’d have had the same response.
     
    IF bias is recognizing that in the grand scale of crimes, Bergdahl is well below the vast majority of folks discussed on this blog, and maybe it’s a sign of something unprofesssional to call him names and make ridiculous attacks on viable actions by appellate defense, then yeah, I’m biased.

  31. weimeriner31 says:

    If this site cannot have discussions of legitimate differences of opinion on matters of law or routinely educate the public on the dry subject of law then it deserves to fail.  There was a time when the media went to this site, when Dwight Sullivan oversaw it, because it educated.  Now, it is an insult chamber too often laced with personal insults and accusations by anonymous people – except for Zack and a small number of others who, while they engage in this type of behavior, at least do not hide behind the cloak of cyber anonymity.