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Wednesday, April 06, 2016

Serial 2:Epilogue

Last one!  First, thank you to Howard and the crew for letting me comment on Serial.  In my closing note, I’ll situate this case into a standard critique of military justice systems and I’ll give some thoughts on how a military panel might view the mental health evidence in this case.  No spoilers in this post.

One reason why I was excited that Koenig picked up Bergdahl’s story is that this would focus some public attention on the military justice system.  I believe that the American military justice system is probably the fairest justice system in the country: every accused gets a fully-funded public defender who will thoroughly work the issues in his case, and I think that is where the due process rubber meets the road.    

The system is under serious scrutiny right now, primarily over the role that commanders play in it.  Commanders, not lawyers, make the ultimate decisions to convene a court-martial. 

There are two basic criticisms of military justice systems.  One is that commanders do too much.  They have too much power and use it to railroad service members through a rough, harsh, summary process.  Through World War II, American courts-martial looked pretty much like the one depicted in the movie Breaker Morant (great movie, available for rent in Amazon video).  Commanders had extraordinary control over the system: they could set a trial date just a few hours after charging the accused; they controlled the accused’s access to evidence; they could reprimand the panel members for acquittals and light sentences; and there was no real appellate system. 

After World War II, the public lost faith in that system and Congress scrapped it, replacing it with the Uniform Code of Military Justice.  The pendulum swung in the direction of providing significant protections to the accused, many of which greatly exceed those found in civilian systems.

For those of you that are uncomfortable with the FORSCOM commander’s decision to send Bergdahl to court-martial, you may be feeling the pull of this criticism.  The defense team is aware of this pull and has been focusing on the government’s failure to disclose to the public the report from the administrative investigation.  The basic argument is that in modern, fair systems, we provide that information; in archaic, rigged systems, we don’t.  The case is actually on hold right now as some of these issues are being litigated in the military appellate courts.

The other main criticism is just the opposite: commanders don’t do enough, particularly in sexual assault cases, and to a lesser degree, war crimes.  The idea is that in these cases, commanders are running a good ol’ boy network and taking care of their own.  In the past few years, board after board after board after board has explored this issue.  After a flurry of legislative reforms, we are currently in a lull.  Some of this is because we are waiting to see if the reforms will be effective, but the main reason is that the reformers are Democrats and they lost control of the train just as it was really picking up speed.  Interestingly, the pendulum is now swinging back toward providing fewer protections to the accused.

This case may never make it to a fully-contested trial, and even if it does, I expect we won’t get there for at least a year.  But if it does, I expect that many in the public will follow it closely, more so than the recent Manning case and probably more so than any court-martial since Calley (excluding, of course, United States v. Lance Corporal Harold Dawson and Private First Class Louden Downey).   How the public perceives this particular process may well drive future reform efforts.

One last thought.  In my previous post, I said that the real issue in the case will be the appropriate sentence.  The potential sentence could range from nothing to life in prison without parole, but for any sentence greater than 10 years, three-fourths of the panel members have to agree.  There are three big sentencing factors in this case: the harm Bergdahl caused; the Army’s shared culpability for enlisting him; and Bergdahl’s mental health problems. 

Toward that last factor, it may be that the military population is overrepresented by people who will discount the mental health evidence.  When I was a military defense counsel, I found that the people in the system were not very persuaded when you provided evidence of PTSD (which tends to manifest in conduct that is illegal in the military) or other mental health evidence.  Particularly with PTSD, there was a belief that, “I went over there and came out just fine; therefore, this guy must be making this up to use as an excuse for his drug use, or for showing up late, or [insert misconduct here].” 

According to this thought process, people are always 100% in control of their free will.  Maybe this soldier has been through some bad stuff, but it was still his choice to use drugs.  Maybe this soldier suffered from depression, but he still chose to go AWOL.

For a lot of other people, though, mental health evidence is mitigating.  It tends to show that this person’s capacity to exercise free will was reduced.  If two people commit the same crime, and one has a perfect capacity to exercise free will but the other has a reduced capacity, we should punish the person with the perfect capacity more than the one with a reduced capacity.

This should not come as a surprise, but research suggests that conservatives tend to endorse the idea of unconstrained free will while liberals tend to endorse the idea that environmental conditions can limit the exercise of free will.  This translates into the receptiveness toward mental health evidence: conservatives tend to be less receptive, liberals more receptive.

When you just look at the population that runs the military justice system, that population is much more conservative than the general population.  Using Jason Dempsey’s data set (he made a couple of appearances in Serial), I was able to narrow his sample down to just the people in the Army that would run the military justice system, to include potential panel members.  Below is a comparison of that sample to a sample from the general population:


If I were Bergdahl’s attorneys, that chart would make me nervous, and this is as good as the distribution gets.  The more senior the members on the panel, the more conservative that cohort is likely to be.  The members of Bergdahl’s panel may be predisposed to discount a key part of his case. 

Add to that, this is a panel that has been personally selected by the same commander who sent Bergdahl’s case to a court-martial.  In contrast, the defense counsel unfettered control of the panel composition is, drum roll please, one peremptory challenge.  This aspect of the military justice system seems really unfair to many, and because of that, military appellate courts have created “the liberal grant mandate,” which means that if the defense can put together a plausible causal challenge against a member during voir dire, the military judge should grant the challenge.

I expect a large part the defense’s pretrial strategy will be litigating issues where the real remedy they seek is expansive voir dire.  We may have seen some of this already.  Recently, the defense team sent a letter asking to interview Donald Trump based on Trump’s statements that deserters should be shot, among other gems.  An interview doesn’t really help the defense.  No one cares if Trump really thinks those things.  What matters is whether panel members heard them, and what matters even more is if they agree.  I don’t expect a military judge will order a deposition of Trump, but a military judge will likely give the defense a lot of space in voir dire to go over this, and then liberally grant challenges.

If the defense can identify and challenge the Trump supporters, the panel will become more favorable for the defense.  If they can identify people who will discount their mental health evidence and challenge them, same thing.  Over the next few months, I would expect to see more of this strategy.

Okay, that’s it.  Let’s see what happens at trial, if we get there.

Posted by Eric Carpenter on April 6, 2016 at 09:56 AM | Permalink



Thanks for your thoughtful and detailed posts. I've been a military-justice nerd ever since United States v. Dawson and Downey, despite being a mere civilian civil attorney, and your posts were one of the highlights of my Season 2 "Serial" listening experience. So you know your hard work was not in vain.

Posted by: SM | Apr 6, 2016 3:22:34 PM

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