Searchers’ wounds will be considered at Bergdahl sentencing

By Jonathan Drew / Associated Press

RALEIGH, N.C. — Serious wounds to a soldier and a Navy SEAL who searched for Army Sgt. Bowe Bergdahl can be used at the sentencing phase of his upcoming trial, a judge ruled Friday, giving prosecutors significant leverage to pursue stiff punishment against the soldier.

The judge, Col. Jeffery Nance, ruled that the service members wouldn’t have wound up in the firefights that left them wounded if they hadn’t been searching for Bergdahl, so their injuries would be relevant to his sentencing if he’s convicted of misbehavior before the enemy at trial in October.

The charge, which carries a maximum penalty of life in prison, alleges that Bergdahl endangered fellow service members by walking off his remote post and triggering search missions across Afghanistan. Bergdahl also is charged with desertion, punishable by up to five years.

Bergdahl’s attorneys have argued that he can’t be held responsible for a long chain of events that included many decisions by others on how to conduct the searches after he left his remote outpost in June 2009.

But the judge ruled that neither service member would have been wounded “doing what they were doing but for the actions of the accused, assuming he is found guilty.” Nance previously ruled that the injury evidence won’t be allowed at the guilt-or-innocence phase of the trial, but the sentencing phase has a different evidence standard.

Defense attorney Eugene Fidell said he was reviewing the Friday ruling to determine his team’s next step.

Scores of military members searched for Bergdahl, who was captured within hours and would be held captive by the Taliban and its allies for five years.

The former Navy SEAL, Retired Senior Chief Petty Officer James Hatch, suffered a career-ending leg wound when he was sprayed with an AK-47 while chasing enemy fighters on a July 2009 search mission. He testified he nearly bled to death and has endured 18 surgeries since then.

On a separate search mission that month, U.S. Army National Guard Sgt. First Class Mark Allen was shot in the head, suffering a traumatic brain injury that left him in a wheel chair and unable to communicate.

Bergdahl told a general during a preliminary investigation that he left his post intending to cause alarm and draw attention to what he saw as problems with his unit.

Defense attorneys wanted the misbehavior charge thrown out, arguing that the underlying actions weren’t independently criminal and that the sentence could be overly harsh.

But the judge sided with prosecutors who argued that Bergdahl’s decision to leave his post was criminal enough to trigger the more serious charge. Military members must hold to a high standard of discipline to maintain order on the battlefield, and serving as a soldier isn’t like most other jobs, he reasoned in a separate ruling this week.

“Unlike the recalcitrant Wal-Mart employee, a service member really can earn himself a federal criminal conviction for repeatedly being late to work,” the judge wrote.

The misbehavior charge has rarely been used in recent decades, though there were hundreds of cases during World War II. Legal databases and media accounts turn up only a few misbehavior cases since 2001, when fighting began in Afghanistan. The judge found only a few relevant cases — one from the Korean War, the other from Vietnam, as precedents for the charge against Bergdahl.

“Two ancient cases are all that are available of superior court guidance as to the meaning of these words,” Nance wrote.

A legal scholar not involved in the case, former Army lawyer Eric Carpenter, said the judge’s decision to allow evidence about his searchers’ injuries would give prosecutors a strong hand at sentencing.

Carpenter, who teaches at Florida International University, said the issue required careful attention because military jurors “might severely punish Bergdahl for second and third order effects of what he did, rather than focusing on his blameworthiness for leaving his post.”

The military probe of Bergdahl began soon after he was freed from captivity on May 31, 2014 in exchange for five Taliban prisoners. Former President Barack Obama was criticized by Republicans who claimed he jeopardized the nation’s security with the trade.

Bergdahl, who is from Hailey, Idaho, has been assigned to desk duty at a Texas Army base pending the outcome of his legal case.