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Should Bowe Bergdahl get a new trial?

Bowe Bergdahl (photo, left) wants his guilty plea thrown out.

It’s a tough call, as shown by a military appeals court’s 3-2 vote to uphold his conviction.

The commander-in-chief’s conduct was egregious.  President Trump argued Bergdahl should be “executed by firing squad or thrown out of an airplane over Afghanistan without a parachute” without due process. (Trump, a man who views the legal system as a tool to benefit himself, until it’s turned against him, also ran a newspaper ad demanding the Central Park Five — who were innocent — be executed.)

Something similar happened during Charles Manson’s trial, when President Nixon told the press he thought Manson was guilty, and Manson then held up a newspaper headline in court for the jury to see, as a tactic to force a mistrial. The judge didn’t go along, partly because Manson himself tainted the jury, but mainly because the jurors said it wouldn’t affect their decision.

In Bergdahl’s case, the military judge said he wouldn’t be influenced by Trump’s remarks, and there’s no indication he was. The military appeals judges who upheld Bergdahl’s conviction pointed out that he that pled guilty not because of Trump’s remarks, but because of the evidence against him.

Bergdahl has a better argument involving the military judge, who told his attorneys that he planned to retire from the military and had no ambition “beyond my current rank.” That was false; after retiring from the military, the judge applied for (and got) a civilian job as a federal immigration judge, using the Bergdahl case as a credential in his application. Whether that supports an inference of judicial misconduct is for a higher court to determine, but generally a criminal defendant should get the benefit of doubt in such cases.

But if Bergdahl is granted relief on that basis, the most he’s likely to get is a new trial, not the expungement of his record he’s seeking. What then? He pled guilty because he was guilty, and it’s not likely he’d be acquitted in a second trial. Probably the most he could hope for is a better plea deal from a military system that just doesn’t want to deal with him anymore.

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  1. Mark Adams #
    1

    Bergdahl guilty plea hurts him. It is unknown if he would have been found guilty, and he would have been in a stronger position with the appeals court. Whether he pleaded because he was guilty or on the advice of his attorneys

    His current law suit probably puts him in the situation of a new trial, but the new guy in the White House was VP when he was released. The military may decline to pursue a second trial. Depends a bit on if Berghdale was paid back pay or the military did not pay it. Most likely it was not paid. Of course he likely lost any VA benefits. Which it seemed at the time he was entitled too if he had simply been allowed out on a disability. Which likely would have happened, but Trump was elected President.

  2. Roger Rabbit #
    2

    He forfeited pay and allowances, and having been dishonorably discharged, he’s ineligible for VA benefits.



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