SGT. Bowe Bergdahl will stand trial for Desertion and for Misbehavior before the Enemy despite the recommendations of the officer who presided over the Article 32 Investigation that a lesser proceeding is appropriate. Bergdahl left his post, was captured by the Taliban, was held 5 years and was only released when President Obama worked some magic and traded him for bad guys. But that is yet another story.

In another life, I was a military defense lawyer, an Army JAG. I still regard the safeguards within that system as better protecting the rights of defendants than the civilian systems (both state and federal) in which I practice today. Bergdahl’s Article 32 Hearing provided an opportunity to see the case and be heard on the evidence that is seldom afforded outside the military. The hearing is like a grand jury proceeding, focused on deciding whether there is probable cause to believe a defendant has committed a crime. The grand jury hearing is secret. The defendant is never permitted to appear, except to answer questions, without his or her lawyer. The defense lawyer cannot hear the evidence before the grand jurors or cross-examine any witness. A decent prosecutor can indict a ham sandwich because there is no judge and he or she chooses what evidence to offer. But an Article 32 Hearing permits an accused to appear, with a defense lawyer, and cross-examine the government’s witnesses.

The problem with an Article 32 recommendation is that it lacks any real foothold. The decision maker is the Convening Authority, the military unit commander. With stars on his or her lapels and a prosecutorial staff that can disagree with the findings of a hearing officer, the Convening Authority can simply go forward to trial. So it is here. The Army lawyer who presided at the Article 32 Hearing recommended a Special Courts Martial, where a one-year sentence would have been the maximum punishment. The Forces Command General Robert B. Abrams (the Convening Authority) disagreed and decided Bergdahl will face a potential punishment of life in prison.
Bergdahl’s lawyers will continue the fight, and nobody really knows how the case will end.
Bergdahl’s story, however, is being told in this years Second Season of Serial, the podcast from NPR that gathers millions of listeners to hear a tale unfold “one week at a time.” If you haven’t listened to Serial before, don’t wait. Get started. And as you listen to SGT Bergdahl’s story, consider the impact of two very important issues for the criminal case.
First, this is, as Serial’s Sarah Koenig says, the first time Bowe Bergdahl has told his story.
A great story well told can decide a criminal case. And the better told, more widely revealed story will trump just about any other move a defendant or lawyer can make toward those marvelous words, “not guilty.” No story and you get convicted. Skillfully relate your own version of the events and you may find justice. You may move the mountains of evidence against you.
Telling Bergdahl’s story is risky stuff for his case. Poorly told or exaggerated or unsupported by enough facts, the story won’t carry the weight of an acquittal. Sometimes the story behind the case leads to a conviction. And the story has to hook the listener so that he or she will want to help an accused. Revealed slowly and with purpose, Serial’s recitation of why Army soldier Bowe Bergdahl left his unit and was captured will likely influence potential jurors (court members in military speak) to free him or it may lead to his conviction. Unlike last year’s podcast, the actual court case will follow the podcast, so the cart may lead the horse, but where will it go?
Until I listened to the first episode a couple days ago, I had no idea that Bergdahl’s story focusses on his attempt to draw attention to his unit’s commanders. Does anyone other than Bowe Bergdahl say the unit was so poorly commanded its members faced greater odds than the usual risks of combat? Was he a whistle-blower or a deserter? After just one episode, I want to know more about his unit, its commanders, and the seemingly meaningless mission he describes.
Second,  I could not help but form opinions about Bergdahl based on how he told the story. I tend to focus on the story itself, but in fact, Bergdahl’s own voice may be just as important in deciding what we believe and what we discard. And here I must confess that Bowe’s narrative left me uncertain. Maybe his tone and affect were dull because of what he has been through. The Article 32officer heard the evidence and concluded that less charges were appropriate. Some military officials have defended SGT Bergdahl by pointing to the horrendous conditions from which he emerged after five years of beatings, torture and deprivation. His voice did not really move me.
Some politicians have called him a traitor, including the Donald, who like most of our politicians never served a day in the military. Mr. Trump has proclaimed that SGT Bergdahl should be executed, without a trial. An article in Rolling Stone implied Bergdahl was ashamed to be an American. When I listened to Bergdahl’s voice, I was not left with that impression. He was quiet, not brash or outlandish. And seemingly every right wing radio talk show host in America has opined that Bergdahl doesn’t deserve to have been traded for Taliban prisoners who were resting in Guantanamo. “We used to shoot traitors.” But that too misses the mark. The issue is not whether the trade should have been made, but rather, did SGT Bergdahl violate the law.
I want to hear something more in Bergdahl’s voice. Not just content, maybe not even context. I wanted to hear him speak in a way that would make me want to move mountains to right a wrong. And maybe it is there, buried deep inside him and afraid to come out after surviving his days with the Taliban. Maybe it is there but he is ashamed of what he did and simply unable to explain in his own words how he left his compadres. Or maybe it is not there at all.
I expected something that wasn’t there in the first episode. Maybe it will never be there. But I will wait. After all, what I heard was 45 minutes or so of selected conversations between Bowe Berghahl and a screen writer. So when I finish this I am going to listen to that first episode again, and be ready for episode two.
I hope that I will be moved.
I was never in combat. I am grateful that I served under very peaceful conditions, without any real risk to me. My military service was without the personal loss our service members have faced fighting terror. I will not judge Bergdahl yet, because he served under conditions that I know nothing about. In fact, I may never really judge him, but I will keep listening to Serial, and I will watch to see how the case progresses through the military justice system as I will wait to see if his story can move an audience of listeners, most of whom are skeptical.
All of this is not lost on the news media. The Washington Post asked yesterday whether Bergdahl’s appearance on Serial altered the Army’s decision-making. Did the Army go hard because Bowe decided to tell his story? Was Bergdahl’s story so good that the military could not risk anything less than a full assault by General Courts Martial?
When I was an Army JAG someone said that military justice is to justice what a march is to music. I never found it to be so and I certainly hope the system works better long term than it has so far. Bergdahl, meanwhile, may prevail or fail in the court of public opinion through Serial. Keep listening. And as the case proceeds, we will consider the evidence, and the prosecution of SGT Bowe Bergdahl.