What is Bergdahl’s Favorite Serial?

Sorry about the title.

I just read it again. Seriously. Sorry about the title. I couldn’t help it.

In what seems like years ago, there was a lot of conversation between legal blogs. One lawyer would write something, and another would respond–all on independent blogs. It sounds like a mess, but it actually was a fun way to share competing thoughts. Through it, I made a few friends and a lot of enemies. Fun times. Sadly, those days are largely gone, and so are many of my most cherished enemies.

That brings us to the new era of legal blogs, where one-author blogs like mine have given way to multi-author behemoths.

A relative new entry to this new genre is Fault Lines, which is a great collaborative effort spearheaded by Scott Greenfield. He collected a fun group of lawyers to write about justice issues across the country. If you haven’t checked it out, do so.

Today, Ken Womble wrote a post that is uncharacteristic for him. In this case, uncharacteristic is not a compliment, as his normal style, tone, and substance are a delight to read. Today, he wrote about the Bergdahl case, criticizing the military justice system and emphasizing the effect that the podcast Serial will have on the overall conduct of the case.

First, I think his assumptions about the effect of Serial are incorrect and inflated. I see Serial as a sideshow, incapable of generating a fraction of the attention of the Bradley Manning case. After all, it is a podcast. Sure, it may be the most popular podcast ever, but that’s like raving about the most popular Bridge match ever to grace Keokuk, Iowa.

Second, he analyzes the military justice process, and his mistaken assumptions are atrocious. This is why I do not go around trying to opine about Latvian Maritime Law. I’d sound just as intelligent.

Note: Like you, I don’t know most of the evidence in the Bergdahl case, but I do know the procedure he faces. Having said that, I suspect that prosecutors feel confident that they can prove the elements of the alleged offenses and are prepared to present truckloads of evidence in aggravation in his case, and his cooperation with the Serial folks is a desperate attempt by the defense team to create popular support for their case. That’s just my gut feeling, based on about a dozen years in doing nothing but military law.

With that said, here’s the substance of my response to Womble’s post at Fault Lines.

__________________________

Where do I begin? I read this as a former Army Infantryman lawyer with experience in the JAG Corps (prosecutor and defense while in uniform) and as civilian counsel (defense after hanging up the uniform). Do I believe Bergdahl deserves a fair shake and all the due process possible? Yes. He’ll get that in droves. However, most of your assertions mischaracterize the military justice system and the fairness of the process.

Having said that, I’ll go section by section (as I perceive the general points).

1st Section: “Simply, he walked away. He walked away from the US Army.” This oversimplification is a slap in the face of everyone who has ever served honorably. The way you said it makes it sound like his “walking away” is akin to the gordita guy at Taco Bell deciding he doesn’t want to smell cheap ground mystery meat anymore and deciding to abandon his faux Mexican food career. It is not the same. Walking away from the military has serious implications, and it is justifiably criminalized when one thinks of the fact that maintaining a cohesive and effective force is a primary concern for the Army. This isn’t Taco Bell. It is the Army, and their unique and serious mission should never be trivialized.

2nd Section: “…technically could carry the death penalty”? Was the case referred as a capital case per Rule for Court-Martial 103? No. So, no, technically, it cannot carry the possibility of the death penalty. At this stage of the process, mentioning the death penalty in conjunction with this case is promoting stupidity.

3rd Section: “Just life in prison.” Thank you for joining journalists who promote ignorance by focusing on the statutory maximum sentence. Really? Does anyone who has practiced law for a day think that Bergdahl is going to receive the statutory maximum? Do you realize that his possible punishment in a General Court-Martial ranges from “no punishment” to the statutory maximum? That’s a big range, capable of accounting for the total weight of any aggravation, extenuation, and mitigation. For more information about poor journalism in the reporting of maximum sentences in order to achieve sensationalism, refer to Popehat https://popehat.com/2015/10/08/bad-reporting-on-matthew-keys-possible-sentence-conceals-prosecutorial-power/.

4th Section (including from the 5th actual para. through “Glad that is all cleared up then.”): It is true that LTC Mark Visger (who I know, but have not spoken to regarding this case) recommended a special court-martial, which could impose a punishment that includes reduction to the lowest enlisted pay grade, 12 months of confinement, and a Bad-Conduct Discharge. While LTC Visger’s recommendation does specify no confinement, he doesn’t go so far as to recommend against a Bad-Conduct Discharge. What he doesn’t say is just as important as what he does say. Did you notice that?

You mention “Abrams’ decision to completely ignore Visger’s recommendation.” Did he? If so, where do you get this information? Consider the process. Visger’s decision would first be provided to the FORSCOM Chief of Justice (a Major or Lieutenant Colonel JAG). Then, it would be discussed with the prosecutorial team, who the Chief of Justice supervises. From those discussions, a recommendation would be formulated, which then would be discussed with the FORSCOM Deputy Staff Judge Advocate (probably a Lieutenant Colonel or Colonel JAG) who weighs in on the recommendation. It is then shared with the FORSCOM Staff Judge Advocate (a very senior JAG Colonel), who would have a chance to give advice and recommendations. Then, it is sent through the chain of command for the accused, and they make recommendations as to disposition. Once everything percolates through the necessary legal and command channels, it is presented to Abrams by the FORSCOM Staff Judge Advocate, and a decision on referral is made.

Notice that this is not a decision made in a vacuum, and no less than 5 lawyers have considered Visger’s decision along with the weight of the prosecution’s evidence (much of which may not have been shared at the Article 32 because they don’t have to present all of their evidence) and any known extenuation and mitigation.

From a utility and procedural standpoint, a General Court-Martial makes sense. They already conducted an Article 32, so referring it to a General Court-Martial adds no additional expense for the government and allows the full range of possible punishment, from zero punishment to maximum punishment (assuming he is found guilty of something). Just because something arrives at a General Court-Martial does not mean there is a presumption of guilt or of anticipated punishment.

General Court-Martial Convening Authorities occasionally go against the advice of Article 32 investigating officers. Nowhere is this more prominent than with sexual assault allegations. In those cases, however, General’s often go against advice to drop all charges, rather than mere advice to seek a lower court-martial disposition. So, while this may be exciting, unique, and newsworthy to you, it is not exciting or noteworthy to those who habitually practice military law.

5th Section: You mention Rep. Hunter, Donald Trump, and Sen. McCain. I assume this is because you want to imply Unlawful Command Influence (UCI). If you’ve been watching things like the MAJ Hasan court-martial, the Brigadier General Sinclair court-martial, the Bradley Manning court-martial, the LTC Lakin court-martial, or any court-martial involving allegations of sexual assault and the pet projects of Senator Kirsten Gillibrand, you’d know that comments by third parties and anyone outside the executive branch do not constitute UCI. Appellate courts are unified on this point. In order to have UCI, you must occupy a command position, and it must be proven that such command interference had an influence on the outcome or the sentence.

You claiming this is a clear case of UCI to any experienced military practitioner is like using the “fire in a crowded theater” argument with a First Amendment scholar. It is laughable and demonstrates a lack of understanding.

6th Section: This is the “Bergdahl suffered” portion of your argument. Maybe. In the law we call this mitigation and extenutation, the presence of which does not disprove the existence of aggravation. Do you really think that the prosecution does not have ample evidence to show the harm caused to other Soldiers? I am particularly disappointed in your minimizing of the perspectives of the other members of his platoon. In a case like this, the effect of his actions on the is just as important as the consequences he suffered from his decisions.

Even in training, the worst thing that can happen is to lose accountability of one of your Soldiers. In a combat zone, this is even more dire. Fellow Soldiers and leaders prioritize, as Bergdahl’s chain of command did, finding any lost Soldier. They did what was perceived as necessary, even though it meant imposing on the local population. By the way, that platoon still had a mission in their area of responsibility which did not abate just because Bergdahl quit his post. You obviously do not understand the burden this placed upon even the lowest Soldier in his platoon.

7th Section: This is the “Bergdahl and his defense team have an uphill battle” section. Do they? If so, relative to what? You mention that this is due to “Bergdahl has now publicly admitted that he left his post, essentially admitting to the charge of desertion.” Assuming that his comments covered all the elements of desertion, how is this a shocking and unfair development? Is he the first person to have public comments used against him in a judicial proceeding?

So, is Bergdahl all alone in this? Without a fighting chance?

There are two lawyers given to Bergdahl for free. They are both in uniform. At least one is undoubtedly experienced (by military standards). The third is Eugene Fidell, who started practicing law in the late 60s, teaches at Yale, and has been a member of the leadership of the National Institute of Military Justice since its inception. In my experience, Bergdahl has a more robust defense team than 99.9% of all accused servicemembers at court-martial. They will have a chance, pursuant to the Rules for Court-Martial, to voir dire the panel members, challenge the impartiality of the judge, challenge evidence, and present evidence in defense, extenuation, and mitigation.

Did you also consider that, if he receives a harsh sentence, including one that includes a Bad-Conduct or Dishonorable Discharge, he gets an automatic appeal to the Army Court of Criminal Appeals? For that, he gets another team of lawyers assigned for free (including possibly Mr. Fidell, who I assume has been working thus far pro bono) to write the brief and argue it to the court? Did you consider the possibility of an appeal after that to the Court of Appeals for the Armed Forces (where he maintains his appellate team)?

Note: I won’t address the apparent defense decision to participate in Serial, as not enough information is known. However, most defense lawyers seem to agree that such statements are ill-advised.

Near end of your post, you rely heavily on the purported validity of Bergdahl’s claim that he had issues that required the attention of the Commanding General exercising authority over Bergdahl’s infantry platoon. Yet, the only evidence we have of this is Bergdahl’s assertions that illegal and immoral actions were taking place. I have yet to see solid, corroborating evidence for this assertion. Some of his peers claim that everyone knew they were returning within a few days to the larger base, and that Bergdahl’s claims are complete BS. However, you seem content that Bergdahl’s actions were justified since he was, for all practical purposes, accepting the role of whistleblower. Is this because you’ve seen all the evidence in this case, or are you just relying upon whatever Serial tells you?

Contrary to what you believe, Serial does not tell the whole Bergdahl story–just the story from his perspective, carefully honed by months of interaction with defense counsel. The whole story will be told in a courtroom, with panel members and a judge or judge-alone. They will make a decision, based on much more than a podcast. They will see the evidence, witness it being challenged by the defense, and make a decision.

I’ll close with an analysis of this statement “the podcast will bring unprecedented attention to a military proceeding that is usually conducted far from the limelight.”

Because that hasn’t happened recently?

In US v. Alberto Martinez?

In US v. Lakin?

In US v. Bradley Manning?

In US v. Sinclair?

In US v. Hasan?

In congressional hearings regarding the military’s treatment of sexual assault allegations (resulting in widespread and fundamental changes to the Uniform Code of Military Justice in the last 5 years)?

No, the military justice system has long been open to all and scrutinized heavily by congress and the press. The only difference now is that you are tuning in because you are entertained by Serial, and your judging this case by what you hear on a podcast does not qualify as unprecedented attention.

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12 thoughts on “What is Bergdahl’s Favorite Serial?

  1. Eric,

    I appreciate your kind words and I would love nothing more than to assist in whatever way to revive the discussion amongst blawgers. I’ve been called wrong many, many times. Hell, even sometimes I have been wrong.

    The thing that fascinates me about Bergdahl is the fact that so little is known about him. And by him, I mean Bergdahl specifically and the military in general. You clearly know a great deal more about military process than I. But the podcast is anything but a platform for Bergdahl. Everyone gets a chance to talk. Many of his former colleagues were interviewed and have a less than favorable view of the star of the show. Bergdahl’s comments are actually from interviews he previously did with a filmmaker, not the host of the podcast, so it is unclear whether his attorneys showed up in time to try to stop him. And after what he did and listening to some of what he has said, I’m not sure anyone could have.

    I completely get the reasons why desertion is a crime. But from my Brooklyn apartment, far, far away from that part of the world, there is something intriguing about what he did. Bergdahl could be a traitor and a monster. He could be an arrogant ass. He could be a dumb kid. He could have truly intended positive outcomes and did something with, at least in his mind, good intentions. I do not contend that he is a hero. But I haven’t been through what he had before he ever stepped foot off his post, so I also feel conflicted about judging him.

    You and I have spent our careers in that gray area between right and wrong. The thing that fascinates me (and millions of other people who have also had their attention drawn back to this story by Serial) about this story is how it has the potential to dissect the ideas of right and wrong for the individual (Bergdahl) and then smash them up against the notions of right and wrong for the community (military).

    I wasn’t coming at this from a procedural perspective. But from a naked assessment of right and wrong in a context that I could never have truly understood. But after hours of listening to interviews and facts from that podcast (come on, a bit more popular than an Iowa bridge game), I will definitely have a better understanding. So will many others.

    • Don’t fall for the spin being injected into this by Serial. While it may be scintillating to an audience, it will not have an effect of a military judge, who is probably already detailed to the case. Expect the judge to be careful, with an eye on keeping the proceedings razor-focused. This means that there will be an appropriate time for pretrial proceedings, with drama being kept to an absolute minimum. Then, expect the findings portion of the trial to be kept to just the elements of the offense. Assuming a finding of guilt, the sentencing phase will proceed with both sides presenting appropriate evidence.

      Serial is made for entertainment and gaining an audience. Expect this trial to be anything but. The judge will be trained and ready for all contingencies.

      You should know that great liberties are taken by entertainment professionals, and Serial is exceedingly one-sided. The trial won’t be.

      • I disagree that Serial is one-sided. The programs so far has made it abundantly clear, via interviews with people in the boots that were on the ground, that Bergdahl is hated for a very valid reason. His actions put many people in danger.

      • Fine, I’ll give you that. Will that finally make you stop using the ” Because Serial is AWESOME” defense?

        Having said that, how do you think it will have a huge effect on the outcome of this case and the military justice system as a whole?

      • I doubt there is much that can change the military justice system. I don’t think there is any doubt that Bergdahl will be convicted of desertion. I’m more interested to see what his eventual sentence is and how much of an impact public opinion might have on that sentence.

      • OK, so, how are you going to measure the effect of public opinion? Or, will any result elicit a response of “Serial saves the day!”?

        I ask that because, prior to the reveal of the latest episode of Serial, I believed that the worst possible sentence for Bergdahl would be reduction to E-1 and a Bad-Conduct Discharge (with credit being awarded for the amount of time in capture and hardships experiences as a result). This also assumes that they elect a trial by judge-alone.

      • Do you think his situation is worsened after the latest episode?

        As to the first question, I honestly have no idea. I’m mainly interested in seeing where it all goes.

      • I think Bergdahl’s situation is worsened because the prosecution now has a ton of impeachment fodder, and I fully anticipate that they will subpoena for anything that was left on the cutting room floor.

        Depending on how it can be threaded-together, it may negate some of his extenuation and mitigation. After all, his participation in Serial is a huge violation of the general rule to have an accused shut the hell up.

  2. I learned a lesson from a military lawyer (with unwashed hands) a few years ago that while there are some similarities between UCMJ and crim law, there are vast differences as well, which leave me unqualified to opine on military law. And I thank you for that lesson, as the last thing I want to do is make people stupider.

  3. Eric — thank you for this. I appreciate reading about anything that inspires you to write, but I really appreciate your writing on this topic. I’ll check back often.

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