An Unbiased Jury for Bergdahl?

By: Megan Seaton

Member, American Journal of Trial Advocacy

The recent surge in podcast popularity has familiarized many Americans with titles such as Serial[1] and S-Town[2]. Season Two of one fan-favorite podcast, Serial, reintroduced an already notorious name to American mainstream media: Bowe Bergdahl. The podcast depicts Bergdahl as a complex character, and leaves listeners confused as they grapple over Bergdahl’s likeability. Now, Bergdahl’s name is entering a new scene, the American military courtroom, where more than Bergdahl’s likeability will be called into question.

Initially, Bowe Bergdahl became infamous as the United States Army soldier who deserted his post in Afghanistan on June 30, 2009.[3] Shortly after walking away from Combat Outpost Mest-Malak in Paktika Province, Afghanistan, Bergdahl was captured by Taliban forces.[4] On May 31, 2014, after being held captive by the Taliban for five years, Bergdahl was released as part of a controversial prisoner exchange for five Taliban members who were being held at Guantanamo Bay.[5]

Following his release, the circumstances under which Bergdahl went missing, and how he was captured by Taliban forces became topics of intense media scrutiny. Eventually, on December 14, 2015, the United States Army announced that Bergdahl would be tried by general court-martial on charges of desertion and misbehavior before the enemy.[6] Since this announcement, Bergdahl has given his own version of the events leading up to his desertion. According to Bergdahl, he left his post because he believed it was the only way to attract necessary attention to the poor leadership endangering the men in his platoon.[7] In a statement on Season Two of Serial, Bergdahl explained that he “was fully confident that when somebody actually took a look at the situation…that people would understand that [he] was right. [W]hat was going on was a danger to the lives of the men in that company.”[8]

Two controversial trial issues have pushed Bergdahl’s case to the forefront of media attention once again. First, in early 2017, during a pretrial hearing before military judge, Army Colonel Jeffery Nance, Bergdahl’s defense team argued that it was impossible for Bergdahl to receive a fair trial, considering the highly damaging slurs that President Trump consistently made about Bergdahl.[9] Throughout his presidential campaign, President Trump mentioned Bergdahl on several occasions, calling Bergdahl a traitor and claiming that Bergdahl deserved to be executed.[10] The prosecution responded by brushing Trump’s statements aside as simple campaign rhetoric.[11] Ultimately, Nance denied the defense’s motion to dismiss the case.[12]

As an apparent consolation, Nance agreed to allow the defense leeway when questioning potential jurors for unfair bias.[13] To this end, attorneys representing Bergdahl are now seeking to question potential jurors about their views on President Trump.[14] In June, Bergdahl’s attorneys submitted a questionnaire that they believe will help to establish whether possible jurors would be prejudiced by comments that Trump made about Bergdahl.[15] “The principal issue has to do with ensuring we are able to identify people who have been nominated to be on the court-martial panel — the jury — who are not in a position to render an impartial judgment,” said Eugene Fidell, Bergdahl’s defense attorney.[16] Fidell stated, “[k]ey to that is the whole set of issues surrounding President Trump’s outrageous comments throughout the course of his successful campaign for the White House.”[17]

The second notable issue in Bergdahl’s case is another matter of juror bias. Late last month, Colonel Nance, the military judge assigned to Bergdahl’s case, held a pretrial hearing to consider whether jurors would be unduly influenced during the sentencing phase if they are permitted to hear testimony from soldiers who were injured while looking for Bergdahl.[18], Nance barred such testimony from coming in during the trial phase, holding that it could unfairly influence jurors to convict Bergdahl of a crime with which he was not charged.[19] Nance was careful to note that Bergdahl is specifically charged with deserting his post and misbehavior that endangered his unit, not with causing injuries.[20]

At the pretrial hearing, retired Senior Chief Petty Officer James Hatch, a former Navy Seal, testified that his military career ended when he was shot in the leg during a hastily planned mission to find Bergdahl.[21] Hatch told Nance, that after receiving information about Bergdahl’s possible location, his team had roughly an hour and a half to plan their mission and board aircraft.[22] While chasing enemy fighters, Hatch was shot in the leg.[23] Hatch stated that he survived only thanks to members of his team quickly applying a tourniquet while waiting for a medical relief.[24]

The prosecution petitioned to use Hatch’s testimony, as well as similar testimony from other soldiers, as evidence during sentencing, should Bergdahl be convicted.[25] Two days after the pretrial hearing, Judge Nance ruled to admit the testimony at the sentencing phase.[26] Nance held that if the soldiers had not been searching for Bergdahl, they could have avoided the enemy fire;[27] thus, the soldiers’ injuries will be relevant if the court convicts Bergdahl of misbehavior before the enemy.[28] Bergdahl’s court martial, currently scheduled for October 2017, will undoubtedly be one of keen interest to many Americans, as well as to Bergdahl’s newfound podcast following.


[1] Serial, Chicago Public Radio (Dec. 10, 2015) https://serialpodcast.org.

[2] S-Town, Chicago Public Radio (Mar. 28, 2017) https://stownpodcast.org.

[3] Luis Martinez, Bowe Bergdahl to Face General Court Martial, Could Face Life Sentence, ABC News (Dec. 14, 2015), http://abcnews.go.com/Politics/bowe-bergdahl-face-general-court-martial/story?id=35761933.

[4] Id.

[5] Andy Worthington, The “Taliban Five” and the Forgotten Afghan Prisoners in Guantánamo (Mar. 23, 2012), http://www.andyworthington.co.uk/2012/03/23/the-taliban-five-and-the-forgotten-afghan-prisoners-in-guantanamo/.

[6] Martinez, supra note 4.

[7] Sarah Kolinovsky, Bowe Bergdahl Reveals Why He Left Afghan Base in “Serial” Podcast, ABC News (Dec. 10, 2015), http://abcnews.go.com/US/bowe-bergdahl-reveals-left-base-congress-criticizes-prisoner/story?id=35695169.

[8] Serial, Season 2: Dustwun (Dec. 10, 2015), https://serialpodcast.org/season-two/1/dustwun.

[9] Jonathan Drew, Bergdahl Hearing Expected to Focus on Criticism from Trump, Associated Press (Feb. 13, 2017), http://www.military.com/daily-news/2017/02/13/bergdahl-hearing-expected-focus-criticism-trump.html.

[10] Mallory Shelbourne, Attorneys for Bowe Bergdahl seek to ask jurors if they are Trump supporters, The Hill (June 21, 2017), http://thehill.com/blogs/blog-briefing-room/338905-attorneys-for-bowe-bergdahl-seek-to-ask-jurors-if-they-are-trump.

[11] Id.

[12] Jonathan Drew, Bowe Bergdahl Scheduled for Trial in October, Associated Press (May 5, 2017), http://www.military.com/daily-news/2017/05/05/bowe-bergdahl-scheduled-trial-october.html.

[13] Id.

[14] Shelbourne, supra note 11.

[15] Corey Dickstein, Bergdahl lawyers want to ask potential jurors if they voted for Trump, Stars and Stripes (June 21, 2017), https://www.stripes.com/news/bergdahl-lawyers-want-to-ask-potential-jurors-if-they-voted-for-trump-1.474681#.WV7cpjOZORv.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Jonathan Drew, SEARCHERS’ WOUNDS WILL BE CONSIDERED AT BERGDAHL SENTENCING, Associated Press (June 30, 2017), http://hosted.ap.org/dynamic/stories/U/US_BERGDAHL?SITE=AP.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

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