BERGDAHL DEFENSE TEAM TAKES ISSUE WITH DEFENSE REVIEW
August 17, 2016
Sgt. Bowe Bergdahl's defense team has asked that his February court-martial be canceled due to the actions of the head of the Army’s Forces Command. General Robert Abrams—who made the decision to put Bergdahl on trial—has admitted that he chose not to review the materials submitted by Bergdahl's lawyers last October because they were not written in plain English.
As Stars and Stripes reports, the new motion claims that a bias against Bergdahl has been present before the court-martial was ever even ordered. "[The decision not to read the submission is] disturbing evidence that he was not impartial or, in the alternative, that he could not be bothered to hear from the defense when exercising a critical quasi-judicial function," the motion reads.
Abrams decision to skip the review of the defense materials because they were written in formal legal terms has raised some eyebrows outside the case, as well. Retired Air Force Lt. Col. Rachel Vanlandingham (now a law professor at Southwestern Law School) punctuated Abrams' failure to meet his duties. "He only has to consider it—he doesn’t have to agree with it—but he admitted he didn’t consider it because he felt it wasn’t written plainly enough," she told Stripes. "I think it's buffoonery. I think it falls far below the standard we expect our convening authorities to adhere to."
Aggravating Abrams' refusal to review the defense materials is the defense team's discovery that the general burned more than 100 letters addressed to Bergdahl. "When defense counsel asked to see the letters, Gen. Abrams revealed that he had destroyed them by burning," the motion reads, adding that the burning prevented "both the court and the defense from knowing precisely how many such letters there were, what they actually said, and, importantly, who wrote them and how we might get in touch with those individuals. This damage is irreparable."
It's unclear what significance the letters—allegedly written by civilian supporters and detractors of Bergdahl—would have on the case. It is, however, highly unusual and indicative of some commanders' attitude towards Bergdahl while his case was being reviewed. One veteran defense attorney reached by Stripes told the paper that he couldn't even "conceive of a general, No. 1, doing such a thing and, No. 2, admitting such a thing."
In addition to asking for the canceling of the court-martial, the new motion also asks that judges reconsider the recommendations of Lt. Col. Mark Visger. Visger presided over a fact-finding hearing last year and ultimately recommended a maximum possible sentence of one year in jail for Bergdahl. Under his current charges, Bergdahl faces possible life in prison.
It will be interesting to see how Judge Nance rules on these issues. Removing General Abrams from being the Convening Authority in this case is effectively hitting the restart button. Any Judge will be loathe to do that, especially in this case because it has taken so long to get to trial. However, General Abrams actions show at the very least, implied bias, against the accused in this case. He made two mistakes. His first mistake was to refuse reading matters submitted by the defense during the referral process. His second mistake was to burn potential evidence in this case. While it is not common for defense to submit matters to a convening authority prior to referral of charges, the General is still responsible for reading them. He brazenly admitted that he did not consider them because they were written in “legalese.” It will be hard for any Judge to swallow this statement. First, he should have considered the matters. Second, every Commanding has a Staff Judge Advocate who advises him on legal matters. All General Abrams has to do is pick up the phone and call his Staff Judge Advocate about the meaning of what he is reading. The fact that the matters were written in “legalese” is no excuse for not reading the matters or attempting to understand the matters.
As for General Abrams second mistake, burning 100 letters could be seen as destroying potential evidence in a trial in addition to the obvious lack of consideration of all matters concerning whether or not this case should go to trial. The fact that he burned the letters without reading them shows his actual bias against the accused. It shows that he only cares about his viewpoint of the evidence and his indifference to any counter point. But what is worse is the fact that potential evidence was destroyed. We will never know what was in the letters or who wrote them. It could be that potential exonerating evidence was contained in those letters. As far-fetched as it seems, it is the exact reason why things of this nature are not destroyed.
Judge Nance has a hard decision ahead of him. It could very well shape how future convening authorities are expected to review charges prior to making a decision to send them to trial. Convening Authorities should be seen as impartial arbiter of the facts in front of them as they make the difficult decision on whether or not to send a case to trial. In this case, it is quite clear that General Abrams was partial to one particular side only.
Joseph L. Jordan, Attorney at Law is a 10+ year U.S. Army veteran who has dedicated his firm to the defense and advocacy of armed service members facing criminal or administrative charges. He travels the world to represent his clients and has earned a reputation for hard-hitting counsel and consistently favorable results.
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