Serial 2:11

The finale!  (In my best Jim Gaffigan voice, “But eleven isn’t a good number for a finale.  Why would she end a story on eleven?”)  Below the fold, I’ll comment on Koenig’s conclusion about whether anyone died searching for Bergdahl, and I’ll give my thoughts on whether Bergdahl should be prosecuted.  I’ll do one more post where I give some thoughts on how a military panel might view this case and show how this case fits into one of the standard critiques of military justice systems – provided Howard doesn’t lock me out of Prawfs before then. 

For what follows, let me focus us in on the big issue – Bergdahl’s sentence.  If Bergdahl continues to trial, I am certain that he will be found guilty of the two charges he faces (I have discussed this at various points during the season).  The sentencing case is wide open, though.  He can get anything from no punishment all the way to life in prison without parole. 

With a wrinkle.  The military has an unusual voting procedure, which introduces a potential sentencing cap: 10 years.  For any confinement greater than 10 years, at least three-fourths of the panel members must agree on the confinement; for any other punishment, at least two-thirds must agree.  His court-martial is only required to have five panel members, although it will likely have around ten, and let’s assume that number.  So, eight would have to vote for a sentence of more than 10 years, and the real fight for Bergdahl’s attorneys is to convince at least three panel members to block that sentence.  If that happens, then the sentencing range will be zero to ten, where at least seven members must agree.

Koenig doesn’t tell us where she thinks Bergdahl should fall on that scale, but I expect she would vote for zero.  On the leniency side of the scale, she tells us that the Army messed up by bringing Bergdahl onto active duty without first investigating what happened while he was in the Coast Guard.  In this episode, she offers new evidence that what happened was much more serious than a mild panic attack.  She also points to the price Bergdahl paid for his mistake (five years in Taliban custody).

The rest of the this episode is really about the factors that fall on the retribution side of the scale – the price paid by the military mission in Afghanistan at large and by Bergdahl’s fellow soldiers in particular because of his actions.  The focus for many is whether any soldiers paid the ultimate price while looking for Bergdahl.

Early on, the media had reported that six men had died looking for him.  Keonig does a pretty convincing job arguing that no one did, although some soldiers were seriously wounded while looking for him.  In addition to that very real cost, the search for Bergdahl may have had some second and third order effects that may have led to deaths – we could speculate that resources were diverted from unrelated missions that then increased the risks associated with those missions.

I think the very best evidence Koenig offers is the interview of Bergdahl’s battalion command sergeant major, retired CSM Ken Wolf.  Wolf’s explanation, starting at 24:28, is spot on. 

I also think that this interview has one the most touching scenes in the entire season.  Wolf has no love lost for Bergdahl: we have heard him elsewhere in the Series expressing what he thinks of his former soldier.  But Wolf only agreed to be interviewed if he could make this statement to the families of his fallen soldiers:  “Their sons did not die looking for Bergdahl.” 

He recognized that Bergdahl’s actions did not directly lead to anyone’s death, and that recklessly saying that Bergdahl’s actions did cause the deaths of those six soldiers causes serious harm to the families of these soldiers.  Their grief is bad enough without adding to it that their son may have died on a mission that many believe seems to have had no meaning. 

In addition to the evidence that Koenig presented, I think there is another good indication that no one died looking for Bergdahl: the Army did not charge him with causing anyone’s death.  If someone had died looking for him, the Army could have, and I think would have.

The military has a common-law involuntary manslaughter offense (Article 119) that is based on a degree of carelessness greater than that of simple negligence.  If you commit an act that is “accompanied by a culpable disregard for the foreseeable consequences to others of that act,” and a death results, you can be criminally liable.  The risk of death does not have to be that high.  The basis of the charge can be an act that, “when viewed in the light of human experience, might foreseeably result in the death of another, even though death would not necessarily be a natural and probable consequence of the act.” 

Bergdahl’s act (leaving his base) could foreseeably result in the death of someone (those who were directly sent to look for him).  He would still have to be the proximate cause of that death, but that inquiry is pretty much the same as the culpability inquiry (if he was culpable for creating the risk, he will be the proximate cause of the harms that actually materialize). 

Charging manslaughter could have been good strategy for the government.  For one, the government could talk about those deaths during the merits of the case without having to worry about FRE/MRE 404(b) or 403.  Further, the test for introducing that evidence during the sentencing case is about the same as the test for the manslaughter charge itself (only “aggravating circumstances which are directly related to or resulting from the offense” come in during sentencing).  When you bring it on the merits, even if there is an acquittal on the manslaughter charges, the bell has been rung.

I expect that this fully-resourced prosecution team looked into whether anyone died, and based on that, determined that they did not have any evidence to support manslaughter charges.  Instead, they used a charge that is similar but where death is not a required result.  The misconduct before the enemy charge only requires that the “intentional misconduct endangers the safety of [his] command.”  True, this charge carries a life sentence and is pretty simple to prove, but six counts of manslaughter would have brought 60 years, and if you want to push panel members toward the maximum, I think six deaths can get you the three-fourths vote that you need, while simply “endangering the safety of the command” will not.

Returning to the retribution side of the scale, I think Koenig is right in reporting that no one died while directly looking for Bergdahl.  But Bergdahl still caused serious harm.  He caused serious damage to the mission in Afghanistan, and Koenig reports that some soldiers were seriously wounded looking for him.

Koenig ends the series without directly telling us what she thinks should happen to Bergdahl.  For what it is worth, here is what I think: he should be convicted – but should receive no punishment, to include not receiving a punitive discharge.

For me, this case falls into the problem of how you punish unintentional harm.  Many criminal law professors pose this hypothetical to their students: who is more culpable; the drunk driver who runs red light but the intersection is empty; the drunk driver who does the same but barely misses a car; or the drunk driver who does the same and collides with a bus full of children?  Looking strictly at the culpability for the reckless act (drunk driving), they are all equally culpable.  But sometimes the risk materializes and our retributive impulses kick in – and we hammer that actor. 

Koenig reports that at least two other soldiers did the same thing as Bergdahl.  They had mental health problems and walked away from their bases into hostile territory.  But for those two soldiers, the risk that they would be caught by the enemy and start a DUSTWUN did not materialize.  And they were not prosecuted. 

I recognize the harm Bergdahl caused, but I think the Army shares culpability for what happened (they should have never accepted him into the service), and I think his culpability is seriously reduced by his mental health issues.  So if I were on this panel, I would vote for zero.  The bigger question is whether two-thirds of the other panel members on this imaginary panel would agree on sentence of confinement.  I think they will, and I’ll explain that in my next (last!) post.