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.