Q+A about the Bergdahl trial

Since everyone has an opinion, we asked the judge to sit down with us and give us some answers to pressing questions about the Bergdahl case.

Judge! Thanks for sitting down with us to talk Bergdahl.

My pleasure. Before we get started, I want to highlight something: Trial law is not my thing and it’s been years since I’ve been in court. There were a lot of very good, very smart lawyers working on this case and I don’t want to be seen as second guessing them. What I know about this case I know mostly from the news. My goal today is to answer some background questions with a little bit more detail.

How many lawyers was it?

So there’s the lawyers that appear at trial and the ones that are “behind the bar” and not in court. At trial, the prosecution had 4 and several (I think 3 or 4) behind the bar. Plus paralegals and a bunch of other staff. Bergdahl had his civilian guy (Gene Fiddel) and 5 TDS lawyers, plus 3 or 4 more behind the bar, again with paralegals and staff. That’s a lot of resources. This case had a file that was over 6,000,000 pages and a good chunk of that was classified.

Why was it classified?

I have no idea. My guess is that the file included a bunch of OPORDs and briefs from 2009 when the troops were out looking for him.

Speaking of troops looking for him. What was the deal with that? Did people die? Were people injured?

Well, at the trial, it came out that at least 4 people were injured looking for him. Two of them (Navy SEAL Jimmy Hatch and former specialist Jonathan Morita) testified about their injuries. A third, MSG Marc Allen, is severely disabled and his wife testified. Allen and Morita were injured on the same mission looking for Bergdahl like a week after he disappeared. They said a medic was injured that day too – shot in the ass, I think – but he did not testify. Hatch was injured in a different mission the same day. His MWD was killed. I think he said that had the dog not stepped in and distracted the hajji, Hatch could have been killed.

As for people dying – well, that’s a different question. I don’t think I can prove in court that people died looking for Bergdahl. The prosecution didn’t put in any evidence of that. The Army says no one died looking for Bergdahl – that seems to be true when you look at casualty reports from around that time. There’s a lot out in the media about 6 people who died looking for Bergdahl. Thing is, the search stopped around the 2009 Afghan election, and those 6 Soldiers died after that. So it’s a tough connection from a legal standpoint.

Speaking of legal shit. Could Bergdahl have gotten the death penalty?

In a very technical sense, yes. Practically, no.

For one, the military hasn’t executed anyone since the 1960s. We suck at death penalty litigation, too. Something like 5 of the last 10 people sentenced to death have had their sentence thrown out on appeal and been resentenced to life.

Next, there’s an open question out there as to whether you can even execute someone for anything other than murder. A few years ago the Supreme Court threw out a Louisiana law that allowed the death penalty for child rape. They basically said death is only appropriate for murder, and even then, only for premeditated murder. The military hasn’t sentenced anyone to death for anything other than murder since World War II and Korea. One guy was sentenced to death for desertion and a few others for rape.

If the convening authority wanted the death penalty considered, he would have had to refer the case to a capital panel. That means no guilty plea. You can’t plead guilty when death is on the table. It also means it would have been a jury trial. All death penalty cases have to be heard by a jury and the death penalty can only be issued by a jury. Military juries are different too. You don’t get a jury of a random selection of people. It’s senior officers and NCOs that sit on juries. My guess is that if this had been capital, it would have taken two more years. My more educated guess is that there is no fucking way he would have gotten the death penalty from a jury either.

Can he get life?

Again, technically, yes. Practically? No way. The government didn’t even ask for that. Although the judge has the discretion to sentence him to it. I would be surprised if he did.

But he is getting time?

Probably. I say that because we just don’t know. This is a unique case and the military doesn’t have a sentencing guideline system. The government asked for 14 years and my understanding is they even put in evidence of what programs Bergdahl would have access to in military prisons. The defense asked that the judge give him a dishonorable discharge, but no jail time. Defense lawyers usually concede that a DD is appropriate in order to secure less jail time. That’s a bold strategy…we’ll see how it plays out.

What prison will he go to?

That’s up to a little known, mostly civilian organization known as Army Corrections Command. It could be at any of the military confinement facilities. My guess, given his physical condition, is that he would go to the Joint Regional Confinement Facility near JBLM so he had access to a major Army hospital.

How fucked up is he, physically?

Defense put in a LOT of evidence about him having PTSD and physical issues. I don’t know shit about medical shit, so I won’t speculate. From the reports I read, it sounded like his legs are pretty jacked up. The one doc said a lot of that nerve damage was due to poor nutrition.

So who is deciding?

The military judge, Col. Nance. He is an experienced judge and has no fucks to give about anything but the law. I think he used to be a JAG for SF or Rangers a while back, so it’s not like he hasn’t been around the warfighting Army. I heard him described as a “Soldier’s judge” who has a lot of respect for the profession of arms.

How does that affect anything?

Well, the prosecution brought in some pipe hitters to testify. At least 2 of their witnesses were former ranger regiment dudes. Jimmy Hatch was in DEVGRU. All their witnesses were decorated combat arms guys. I can’t imagine that weighing in Bergdahl’s favor.

14 years seems kinda weak…what’s up with that?

Well the prosecutor was probably just trying to be reasonable. I don’t know the guy and I hear he’s a litigator, so I’ll probably never have the chance to ask him. I don’t know why he asked for only 14 years and I haven’t heard or read his full closing. I’m guessing the number acknowledged that some credit is due given the fact that Bergdahl had the shit beat out of him by the Taliban and is basically on a dead man profile. It probably had something to do with the Trump comments too.

Speaking of Trump, didn’t you say that you thought the case was done for after the comments two weeks ago?

Yeah. And I was wrong, thank the good Lord. The prosecutors put a lot out there to prove that the comments by the president can’t affect the trial and they managed to win. But the downside is the judge said he’d consider Trump’s conduct as mitigation. That means as a circumstance that can reduce the sentence. To my knowledge, his lawyers made a point of highlighting that for the judge.

Why was the defense asking for no jail?

Your main goal as a defense lawyer is to get the best possible outcome for your client. Sometimes that’s an acquittal, sometimes it’s no jail. They probably think they have a chance at reducing jailtime by conceding the dishonorable discharge.

What do you say to all the people who are threatening Bergdahl?

He’s not fucking worth it. He’s a convicted felon and his best hope for a job is working with cats.

Cats?

Cats. A witness who testified yesterday actually said Bergdahl was the cat whisperer and that she would hire him to take care of a ranch full of cats in Arkansas or some shit.

Wow. Weird.

Yep.

That seems like a good note to end on. Thanks for your time.

Thanks for having me.