A Fair Court Martial for SGT Bergdahl

Sergeant (SGT) Bowe Bergdahl’s defense counsel recently sent a letter to presidential contender Donald Trump requesting an opportunity to interview him.  The letter stated that the interview would be used to determine if a future deposition of Mr. Trump, or calling him as a witness for a pretrial hearing, would be necessary.  The basis for the defense counsel’s request was Mr. Trump’s frequent inflammatory comments concerning SGT Bergdahl and his case.

Mr. Trump has not yet responded to the request, and likely never will.  It is also unlikely that he will ever be deposed or appear as a witness at a pretrial hearing – and SGT Bergdahl’s defense counsel undoubtedly already know this.  However, the letter was probably less about trying to interview Mr. Trump, and more about raising the issue of unfair pretrial publicity and its impact on potential court martial panel members.

Assuming SGT Bergdahl elects to be tried by a court martial panel, the military judge will have a duty to ensure that he receives a fair court martial by uncovering and neutralizing panel member prejudices.  An effective method to avoid extraneous comments impacting a court martial is through sequestration of the panel members.  While the military rules do not specifically address sequestration of panel members and the standards that delineate the propriety of sequestration, the Court of Appeals for the Armed Forces has indicated that sequestration of the members may be an appropriate practice depending upon the circumstances of the case.  United States v. Simpson, 58 M.J. 369, 372 (2003); citing Sheppard v. Maxwell, 384 U.S. 333, 363, (1966).

Although sequestration of a jury is considered an extreme measure in a civilian court, it should not be so in the military setting.  Military trials are uniquely efficient.  As a rule, resolutions are reached at rates unsurpassed by civilian courts.  The court martial system was designed in such a manner to avoid compromise of military missions.  Additionally, juries in the military are comprised of service members whose regular duties often include an element of sequestration from their family and the outside world.  It can hardly be argued that sequestration of the panel during the relatively short duration of a court martial is more of a burden to a member than a lengthy deployment.

It is to be expected that television and news reports will once again turn their focus to SGT Bergdahl’s case as we get closer to his court martial.  Much of what will be printed in the newspaper or reported on television will be sensationalized, erroneous, or just plain inadmissible hearsay.  If SGT Bergdahl elects to have his case tried by a court martial panel, the military judge should exercise her discretion and err on the side of caution by ordering sequestration of the panel.

Sergeant Bergdahl is entitled to have his case adjudged by fair and impartial court martial panel whose determination is based solely upon the evidence, and not upon prejudgment from influences extraneous to his court martial.  A fair court martial for SGT Bergdahl is something even Mr. Trump should be able to get behind as he campaigns to “make America great again.”

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