Bergdahl judge won't allow evidence of injuries to soldiers

AP News
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Posted: Dec 16, 2016 4:47 PM
Bergdahl judge won't allow evidence of injuries to soldiers

FORT BRAGG, N.C. (AP) — The judge overseeing the military trial of Army Sgt. Bowe Bergdahl ruled Friday that he won't allow evidence that any service members were injured while searching for him.

The judge, Army Col. Jeffery Nance, wrote the risk is too great that such evidence would spur military jurors to act on emotion, rather than logic, unfairly biasing them against Bergdahl during a court martial scheduled for April 2017. Nance issued the written ruling hours after hearing oral arguments on the matter.

"The accused is not to be convicted because, while searching for him, his comrades were horrifically injured. Even (perhaps especially) hardened combat veterans of many deployments who might sit on this panel would be hard pressed not to be affected by the horrific injuries to SFC Allen, in particular," he wrote, referring to a soldier shot in the head. "Since the danger can be avoided, I deem it should be."

Bergdahl is charged with desertion and misbehavior before the enemy; the latter could put him in prison for life. Bergdahl has said he walked off his post in Afghanistan in 2009 to alert higher-ups to what he felt were problems with his unit.

Nance said the defense has plenty of other evidence it can use to argue that Bergdahl's actions endangered his comrades. He noted that prosecutors have "ample evidence" that numerous search operations were undertaken, and many of them brought service members in contact with enemy forces.

Questions about whether soldiers were injured or killed searching for Bergdahl have long surrounded the case, with critics such as President-elect Donald Trump repeating claims that lives were lost. However, a general who investigated Bergdahl's disappearance has testified that he found no evidence that service members died searching for Bergdahl.

Prosecutors have focused on soldiers wounded during a firefight involving a half-dozen U.S. service members embedded with 50 members of the Afghan National Army. Another officer involved in that mission, about a week after Bergdahl left his post, has testified that its sole purpose was to find him.

The group was attacked near a town in Afghanistan on July 8, 2009. U.S. Army National Guard Sgt. 1st Class Mark Allen was shot in the head, and prosecutors say he uses a wheelchair and is unable to communicate. Another soldier had hand injuries because of a rocket-propelled grenade.

But Nance wrote that "the accused is not charged with causing anyone's injury or death. He is charged with endangering the command. While there are similarities in those consequences, they are distinct."

Prosecutors have argued the injuries are the strongest evidence that Bergdahl endangered his comrades by triggering dangerous search missions.

One of the prosecutors, Army Maj. Justin Oshana, told the judge Friday that military jurors, compared to civilians, are "much less likely to be susceptible to unfair prejudice."

But defense attorney Army Maj. Oren Gleich said many factors — some having little or nothing to do with Bergdahl — coalesced in the mission that left the men wounded. Defense attorneys have presented evidence that the mission was shoddily planned, even by the standards of the missing-soldier alert Bergdahl caused.

"You have to factor in all the intervening causes as to what created a dangerous situation," Gleich said.

Before issuing his ruling, Nance told the lawyers he was aiming for the right balance: "Sgt. Bergdahl is not responsible for a never-ending chain of events ... But he is responsible for a certain amount of that chain of events."

Bergdahl, who was swiftly captured after walking off his post and held captive for five years by the Taliban and its allies, hasn't decided whether to have a trial by jury or judge alone.

The Obama administration's decision in May 2014 to exchange five Taliban prisoners held at Guantanamo Bay, Cuba, for Bergdahl's freedom prompted criticism from Republicans who accused Obama of jeopardizing the nation's safety.

Bergdahl, who's from Hailey, Idaho, has asked Obama to pardon him before leaving office.

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