EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, December 11, 2015

Serial, Season 2, Episode 1: Is Bowe Bergdahl Guilty of the Two Charges Brought Against Him?

Last night, I had the chance to listen to the first episode of the second season of Serial. In the episode, Sarah Koenig plays a recording of Sergeant Robert (Bowe) Bowdrie Bergdahl talking to Mark Boal about his decision to leave his outpost, OP Mest, at night and run—or at least walk—to his base at FOB Sharana. According to Bergdahl, he left OP Mest

to create a "DUSTWUN" — short for duty status whereabouts unknown; a radio call issued when a soldier goes missing in combat or is taken captive. Bergdahl claims his actions were intended to call attention to a larger issue: his serious concerns over leadership in the military.

"What I was seeing from my first unit, all the way up into Afghanistan… was basically leadership failure to the point that the lives of the guys standing next to me were literally — from what I could see — in danger of something seriously going wrong and somebody being killed," Bergdahl says in one of the taped interviews with Boal.

So, what does this mean in terms of the two charges against Bergdahl that I discussed in yesterday's post

Let's start with the charge of "Misbehavior Before the Enemy." Here is the description of the charge from the charge sheet:

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 99

SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, at or near Observation Post Mest, Paktika Province, Afghanistan, on or about 30 June 2009, before the enemy, endanger the safety of Observation Post Mest and Task Force Yukon, which it was his duty to defend, by intentional misconduct in that he left Observation Post Mest alone; and left without authority; and wrongfully caused search and recovery operations.

The relevant statutory language is in Section 899.99 of Subchapter  X of the Uniform Code of Military Justice (UCMJ). In yesterday's post, I cited to United States v. Carey, 15 C.M.R. 112 (U.S.C.M.A. 1954), in which the court found a violation of Section 899.99 because,

At a time when full responsibility for the operational efficiency of this vital defensive and offensive instrumentality was upon him, the accused voluntarily consumed sufficient liquor to intoxicate him. That such intoxication constitutes intentional misconduct there is no doubt, for drunkenness is a violation of Article 134 of the Code,...and, when it occurs while on duty, it is a violation of Article 112 of the Code.

It's easy to see the government arguing something similar in the Bergdahl case. Section 886.86 of the UCMJ provides that

Any member of the armed forces who, without authority–

(1) fails to go to his appointed place of duty at the time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed;

Under Subsection (3), it seems clear that Bergdahl intentionally absented himself from his place of duty at which he was required to be at the time prescribed. As such, Bergdahl seems in clear violation of the law.

The analysis under the second charge of desertion is a bit more complicated, but not in terms of the mens rea (mental state) requirement. Here is the description of the charge from the charge sheet:

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 85

SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.

The relevant statutory language is in Section 885.85 of Subchapter  X of the UCMJ. In yesterday's post, I cited to United States v. Fazo and its discussion of the distinction between motive and intent. That dichotomy seems to speak directly to Bergdahl's stated rationale for leaving OP Mest:

While all the evidence may be considered in determining intent, this element goes to the accused's immediate intent, not his ultimate goal....If the accused had the required specific intent to avoid a certain duty or shirk important service, then it does not matter if she also ultimately intended to perform a legal, or even noble, act....The ultimate goal, also sometimes called an ulterior intent, is more properly labeled a motive....This motive, no matter how compelling, cannot negate the accused's immediate intent....For example, it is immaterial that one who takes money with the intent to steal it also intends to use the money to buy food for a hungry child....The motive to feed the child does not replace the immediate intent to steal the money.

Obviously, in some cases a motive may help establish an affirmative defense such as duress....The motive, however, is only relevant to the extent it establishes a recognized defense....For example, quitting a unit due to one's conscience, religion, personal philosophies, or moral, ethical or professional reservations is not a defense....These motives, along with any others, do not replace the immediate intent to quit one's unit, or shirk important service.

In this case, you might believe that Bergdahl's motive of calling attention to serious concerns over leadership in the military was (1) brave and noble; (2) cowardly and stupid; or (3) not his real motive. According to Fazo, however, none of this matters. If his intent was to shirk important service or avoid hazardous duty, none of these "ulterior intents" mattered.

The question then becomes whether Bergdahl did indeed intend to shirk important service or avoid hazardous duty. I cited to Fazo's discussion of the former intent in yesterday's post. According to that case,

Within the meaning of Article 85, UCMJ, service is important if an objective evaluation of the expected military situation in which the duty or service is to be performed indicates that it is more significant than the ordinary everyday service of members of the Armed Forces....The "something more" that distinguishes important service from ordinary service depends entirely upon the facts of each case....Activities such as drill, target practice, maneuvers, and practice marches are not normally considered important service....Additionally, a routine overseas assignment is not per se important service. 

Important service, on the other hand, is not limited to direct combat support or highly unusual duties. For example, an E–2's cooking duties onboard the Coast Guard Cutter EASTWIND during Operation Deep Freeze were found to be important [in Merrow]....In that case, the ship's mission involved ice-breaking duty in logistic support of a scientific mission in the Antarctic....While an older case, it is significant that our higher court cited Merrow in a 1995 decision to establish the objective standard for important service and in their factual analysis of important service.

Was Begdahl engaged in "important service" as opposed to "ordinary service" at OP Mest? I need more facts to reach a conclusion. 

Did Bergdahl intend to avoid hazardous duty? Let's take a look at the opinion of the Court of Military Appeals in United States v. Cook, 8 C.M.R. 23 (CMA 1953):

The Manual for Courts-Martial, United States, 1951, in paragraph 164a (2), states that "'hazardous duty' or 'important service' may include such service as duty in a combat area or other dangerous area.” The essential question is whether the term "combat or other dangerous area" shall be limited to the area where actual fighting is taking place, or whether it should be given a somewhat broader connotation. We think the former definition would be unrealistically narrow. Hazardous duty should certainly include, at the least, such duty as would be covered by the term "before or in the presence of the enemy" as used in Article 99 of the Uniform Code of Military Justice, 50 U. S. C. § 693. We have already indicated that this term is not to be confined to actual front-line combat....

Here, the accused was a member of a medical company of a cavalry regiment, which was located some 2500 yards from the machine gun platoon to which he was ordered. At the time of the order, this platoon was in reserve but shortly thereafter went into action. Taking these factors into consideration, we think it may reasonably be said that the accused's assignment fits into the category of hazardous duty and, in view of the nature of his duties as a medical aid man and his attachment to the regiment in question—which included both the medical and the line units—that the accused knew with reasonable certainty of the hazardous nature of the duty concerned. One located as close to the front lines as was this accused could not reasonably have been unaware of the imminence of the enemy and the possibility of engagement with that enemy. Further, it is common knowledge in the Army, of which this Court may take judicial notice, that medical men are always attached to units such as machine gun platoons when those units are going into combat. It is entirely reasonable to import such knowledge to the accused.

So, was Bergdahl engaged in "hazardous duty" as opposed to "non-hazardous" duty at OP Mest? Again, I need more facts to reach a conclusion.

Overall, then, it seems pretty clear that Bergdahl is guilty of the first crime charged and quite possibly guilty of the second crime charged, even if we take him at his own word. But will he be prosecuted? Is there there the possibility of a mental defense? It will be interesting to see how this all unfolds, both on the podcast and in the real world.

-CM

s

https://lawprofessors.typepad.com/evidenceprof/2015/12/last-night-i-had-the-chance-to-listen-to-the-first-episode-of-the-second-season-of-serial-in-the-episode-sarah-koenig-play.html

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Comments

I can say from personal experience that he is certainly in violation: his duty at guard was both important and hazardous, or at the very least it can be argued to be in a military court. Without a mental health defense, Berghdal cannot be found not guilty, as far as I understand it.

I am huge Serial fan, but it might take me a few episodes to understand why this story is being told on the podcast... It's not really controversy, this guy was a brand-new Soldier who knew nothing of how posts work, about how war works, and he caused an unforgivable set of consequences by his decision. His explanations are interesting, but not understandable to anyone who's ever served. This is an interesting choice for Serial.

Posted by: Rgoose | Dec 14, 2015 1:38:39 AM

He is in violation and should be court martialed and thrown in jail. My son served two 18-month posts in Afghanistan. He was in an area worse than Bergdahl and never left his post. On top of it all, my son is an officer in the Navy transitioned into the Army for those terms.He never left his post, never left his brothers, ever.
Navy Mom

Posted by: navymom | Dec 14, 2015 6:33:51 AM

I'm really disappointed that SK chose this for her second season of Serial. It seems that it's ready made for a podcast since they have 25 hours of audiotape. I hope Serial proves me wrong.

Posted by: JoAnn | Dec 14, 2015 10:37:44 AM

Rgoose: Thanks for the insight. I agree on both fronts, but I need to learn more about the facts before saying anything definitive.

navymom: That definitely seems to be the consensus.

JoAnn: It's very much different from the first season, where basically no one knew much of anything about the case going in. I will be interested to see how the season progresses. Our second season will be much like Serial, season 1, in that we'll be covering a case that very few people know much about.

Posted by: Colin | Dec 14, 2015 11:38:13 AM

I fail to understand the story or the controversy here. He more or less admitted to having done what the gov't charged him with doing. I don't really see any MH defense either. He seems to be pretty narcissistic but that's not legally insane. The shear hubris of a PFC deciding not to utilize the COC & just walking off a base in enemy territory staggers the imagination. That hubris just one-up'd by him talking to media & admitting to being guilty of the charges brought against him while having an active case before the court. Unless it's a strategy to somehow prove he is so delusional that he really doesn't know right from wrong and establishing an insanity defense.

Posted by: Cat | Dec 14, 2015 11:44:17 AM

The details/motive will only serve to affect the punishment, not the guilt. In UCMJ, you either violate a rule or you don't - there is no lesser crime or charge to fall back on based on extenuating circumstances, even mental health. The only defense that could possibly affect his guilt would be to show that he was unstable/not at full mental capacity when he enlisted in the service to begin with.

If that is the case, then this story, and the Serial season, will definitely be controversial - this is something that I have actually never heard of happening (not that I am an expert on the topic or anything).

Posted by: RGoose | Dec 14, 2015 1:20:35 PM

RGoose/Colin: Would a mental illness defence really only affect the punishment? Surely if the mental health problem impacts upon someone's capacity to make decisions, then the intent part would be much trickier to prove? Could that lead to a not guilty verdict?

Posted by: Cupcake | Dec 16, 2015 11:35:46 AM

P.s. if we are to take Bowe at his word, then his decision seemed like it lacked much of a grounding in reality - it was really quite grandiose. This kind of thinking is quite common in people experiencing psychosis...not just so-called 'narcissists'.

Posted by: Cupcake | Dec 16, 2015 11:42:51 AM

Cupcake: Again, this is just from my experience and personal knowledge of UCMJ, but a mental health defense would only serve this case if they determine he wasn't fit to enlist in the service to begin with, and he would ultimately be discharged administratively without being found "guilty" because he would then be considered not mentally capable of understanding his orders at all.

UCMJ doesn't deal so much with guilt/not guilt as it does severity of the circumstances. Either an Article of UCMJ is broken or it isn't, and in this case it is easy to prove that the Article was broken - he left his post, clear and unarguable - although it might be a fine line between an AWOL charge and a Desertion charge (two different Articles, with different severity of crime and punishment).

The UCMJ does not work exactly like civilian law - Servicemembers swear to obey the laws and orders first and foremost, and it is very difficult to shift blame for a violation back onto the Service and get away with a charge. Again, I only see two defenses that could totally clear him: 1) mentally unfit to enlist in the services (thus negating his enlistment and clearing him of the charges), and 2) blatant, endangering abuses or neglect by his Command at Post Mest. It seems to me that he is trying to go for the second one based on the podcast so far, but that is a very long shot since it is unlikely that anyone will testify against the Command, and even less likely that the "jury" of Servicemembers will sympathize with complaints of harsh field conditions (they have probably seen same/worse). Further, in order to justify this defense, he would have to show that he had tried FIRST to make his concerns heard through the proper channels but was effectively forced to take drastic measures because the Command was not responsive or they were retaliatory - I don't think that happened, either.

Now, the fact that he was imprisoned with the Talaban for 5 years should be used as a mitigating circumstance of his punishment - his intent was to go to the FOB, but then he was captured so the actual AWOL time will probably be reduced from the time he was in captivity so long as they can show that HAD he not been captured, he WOULD HAVE voluntarily returned to service.

I guess we will have to see how it goes - doesn't look good for him, tho, it will take moving mountains to get anyone who has served to understand/forgive/sympathize with this guy, especially after he was rescued with so much controversy. This proceeding is as much a political issue as it is military justice, and in any other case it probably would have been closed a long time ago.

Posted by: RGoose | Dec 16, 2015 2:00:08 PM

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