Serial 2:7-8

This is the episode I have been waiting for. I’m going to give away the big reveals (at least, in my geeky way, I think they are big), so if you haven’t listened yet, don’t go below the fold. 

The first big reveal: Bergdahl has schizotypal personality disorder and probably has some degree of depression. I have been hinting in previous blogs that I thought this would be his diagnosis.  That is not because I am clairvoyant; rather, Bergdahl’s story fits a pattern that exists in certain military cases. 

Many criminal justice systems deal with mental health issues on a regular basis. The military has a unique population, though – the military screens its potential members for mental health issues, so most people with bipolar or anxiety or major depressive disorder don’t make it in.  People with one type of mental disorder just might, though.

People who are on the lower end of the schizo-spectrum may not be symptomatic when they show up to the recruiting office. And, their disorder might actually cause them to be attracted to military service.  Often, the schizo-spectrum disorders develop as the person is developing into an adult and trying to deal with another cognitive issue (impaired executive functioning or mild Asperger’s, for example).  When they find that the world is different for them than it is for the others around them, they resort to fantasy to cope.  And when those fantasies involve war, they might decide to become a soldier.

We hear about that with Bergdahl. It sounds like he may have had some sort of a learning impairment and he grew up isolated from other kids.  One way to deal with the isolation or to deal with social awkwardness would be to revert to fantastical thinking, and we have seen examples of his fantastical thinking throughout the series.  One of his fantasies was to be a Jason Bourne-like hero, operating in the movie-script version of World War II movies and doing things like Kung Fu hand-to-hand combat.  In this episode, we learn that this fantasy caused him to become interested in military service.

People who have schizo-spectrum disorders (we learn in this episode that Bergdahl has schizotypal personality disorder) can do just fine in some areas of life and generally do not have active hallucinations or delusions. But when they are placed under extraordinary stress, like the stress caused by being in a combat environment, the conditions can become aggravated to where they do have hallucinations or delusions.  And if they have depression, this combination of schizo-spectrum, depression, and acute stress can lead to depression with psychotic features.

Here, Bergdahl came under extraordinary stress and he came to have a paranoid delusion that his battalion commander might intentionally send his unit into harm’s way to get rid of them. In Bergdahl’s mind, this was because his unit had embarrassed the commander by being photographed out of uniform.  Bergdahl dealt with that stress by leaving his unit.  Others that fit this pattern in the military, like one of my clients, sometimes turn to violence. 

Bergdahl’s pretrial sanity board found that this condition amounted to a serious mental disease or defect (satisfying the first part of the lack of mental responsibility test), but also found that he could appreciate the wrongfulness of his conduct. This finding is not binding on the factfinders at court-martial, and Bergdahl’s attorneys could argue that because he thought he was doing something good (preventing the abuse of his fellow soldiers), that he did not appreciate the wrongfulness of his conduct.  Hardly anyone wins on this defense in the military (or elsewhere), though

In addition, this mental health evidence may not be of much use when attacking the government’s burden of proof. Because of the way military appellate courts have interpreted the desertion statute, it is no longer a specific intent crime; rather, Bergdahl only needs to have volitionally left his post, with the attendant circumstance that he avoided hazardous duty.  His other charge reads about the same: he needed to have committed some intentional (really, volitional) misconduct that put his unit in danger.  He doesn’t need to have any specific thought running through his head while doing so.  In the end, this evidence will likely be used in sentencing as evidence in extenuation or mitigation to explain why Bergdahl’s irrational story can make sense (and lower his blameworthiness) if placed in the right context – the context of his deteriorating mental health.

Now, the second big reveal: The Army accepted Bergdahl on an enlistment waiver. He had earlier washed out of Coast Guard basic training because he had had a panic attack.  He was actually hospitalized for a few days. 

Really.

The Army took him anyway. During this period, the Army was having a tough time getting recruits and so it started lowering standards and issuing waivers.  I was a military defense counsel during this period and my office had a lot of clients that came in on waivers.  Occasionally, recruiters would do strange things, like telling a recruit who was taking medications for mental health conditions to go off the meds so they would not show up in the initial urinalysis.  From Keonig’s reporting, it does not appear that there was any recruiter misconduct here.  At most, the Army didn’t do a very thorough investigation of Bergdahl’s background.

One of the arguments military defense counsel use is that the Army’s shares culpability for the misconduct that these soldiers later commit. If you take someone who has had issues in a relatively unregulated civilian life, and then throw him into a stressful, heavily-regulated military life, you should expect to see some misconduct issues. 

In the civilian world, if this person showed up late to work or told her boss to “f--- yourself,” he might get fired.  In the military, those are crimes.  To defense counsel, at least, it seemed unfair for the Army to lure these people in and then crush them with the full weight of the federal government when they (surprise!) mess up. The Army assumes risk when it brings people in on waivers, and when that risk materializes, the soldier shouldn’t bear the entire cost. 

I expect General Dahl, the officer who conducted the administrative investigation in the case, recognized that (along with Bergdahl’s treatment by the Taliban) when he recommended that Bergdahl not receive any jail time.

As I post this, I see Koenig dropped another episode.  I'll get that up before Thursday.