In what was a significant ruling in the trial of Army Sgt. Bowe Bergdahl, the prosecution has been barred from using the wounds dealt to service members while searching for him as evidence in the case. Army Col. Jeffrey Nance, serving as the judge in the case, wrote that there is “ample” evidence supporting the idea that Bergdahl’s actions caused his comrades to have to undertake dangerous contact with the enemy.

However, the primary reason for the ruling described concern that the jurors in the case may be biased unfairly by the injuries to military personnel, particularly those of Sgt. First Class Mark Allen. Allen was shot in the head during the ambush, and now uses a wheelchair and is unable to communicate.

“The accused is not to be convicted because, while searching for him, his comrades were horrifically injured. Even hardened combat veterans of many deployments who might sit on this panel would be hard pressed not to be affected by the horrific injuries,” he wrote. “Since the danger can be avoided, I deem it should be.”

Prosecutors have focused heavily on the soldiers wounded in a fight with the Afghan National Army that occurred roughly a week after Bergdahl left his post, and have said that the injuries sustained by soldiers attempting to rescue him are the strongest evidence against him. Army Major Justin Oshana pleaded that military jurors are far less susceptible to emotional prejudice than a regular civilian jury would be.

This has been countered by arguments that the injuries were caused by a number of factors having nothing to do with Bergdahl, including poor mission planning. Col. Nance clarified that Bergdahl is not charged with causing anyone’s injury or death, but rather that he endangered the command.

Bergdahl initially abandoned his post in Afghanistan in 2009 and was swiftly captured and held as a captive for five years by the Taliban. He was released on a prisoner exchange from the Obama administration in May 2014 that sent five Taliban prisoners held in Guantanamo Bay back.

If you are facing a military criminal defense matter, including a Court Martial trial, call Joseph L. Jordan, Attorney at Law. We are committed to serving all Soldiers, Sailors, Coast Guardsmen, Airmen, and Marines all around the world. We understand the expanse that the United States military stretches too, and we can go anywhere we are needed to protect the rights of those facing a military criminal matter.

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