Bergdahl lawyers want to ask potential jurors if they voted for Trump
By COREY DICKSTEIN | STARS AND STRIPES Published: June 21, 2017
FORT BRAGG, N.C. — Lawyers for Army Sgt. Bowe Bergdahl said Wednesday they want to ask prospective jurors in the soldier’s court-martial about their opinions on President Donald Trump to ensure their client receives a fair trial.
The questions, submitted in a private 41-question survey, seek to determine whether potential jurors would be influenced by the repeated, disparaging comments uttered by Trump on the campaign trail about the former Taliban captive, said Eugene Fidell, Bergdahl’s lead attorney, during a pretrial hearing at Fort Bragg in North Carolina. Bergdahl, 31, faces a court-martial in October on charges that he deserted his post in eastern Afghanistan in June 2009 and endangered his unit through misbehavior.
In addition to asking the potential jurors whether they are familiar with Trump’s comments, defense attorneys also seek to ask if they voted for Trump, one of 17 questions to which prosecutors objected.
“The principal issue has to do with ensuring we are able to identify people who have been nominated to be on the court-martial panel — the jury — who are not in a position to render an impartial judgment,” Fidell said. “Key to that is the whole set of issues surrounding President Trump’s outrageous comments throughout the course of his successful campaign for the White House.”
Trump made more than 60 negative references to Bergdahl during public campaign rallies and speeches between June 2014 and August 2016, calling him “a dirty, rotten traitor” and opining he should be executed or sent back to his captors. As president, Trump has not made public mention of Bergdahl and the White House has declined to comment on his past statements.
The judge overseeing the case, Army Col. Jeffery R. Nance, called Trump’s statements “disturbing” and potentially “problematic.” But in February, he declined to dismiss the case over them, instead granting defense attorneys great leeway to ask potential jurors questions about any potential influence the president’s comments might have on them.
However, prosecutors argued Wednesday that some of the proposed questions are too far-reaching or are irrelevant. Army Maj. Justin C. Oshana, one of the prosecutors, asked Nance not to include questions about personal politics and argued simply asking jurors if they had heard Trump’s comments went far enough for the initial questionnaire.
“A person not aware of any of the comments made by Mr. Trump, but who voted for him, is not a prejudice issue,” Oshana said.
Bergdahl’s military attorney, Lt. Col. Franklin Rosenblatt, defended the questions, arguing “hard questions” must be asked to fully ensure “Bergdahl’s constitutional right to a fair trial.”
“This is a sticky, problematic thing we are in,” he said. “These are questions that we think have to be asked.”
Nance said he would decide which questions he would allow before the end of next week, when the questionnaires will be sent to the pool of prospective jurors.
“You are going to get to ask most of the [submitted] questions in written form,” Nance told Bergdahl’s defense team, though it was unclear whether he’d allow them to ask if they voted for Trump.
Nance will also consider whether to allow prosecutors to include evidence that two servicemembers were severely injured on missions to rescue Bergdahl before he is sentenced, should he be convicted.
On Wednesday, one of those former servicemembers, retired Navy Senior Chief Petty Officer Jimmy Hatch, testified he was on a quickly planned special operations mission to rescue Bergdahl in July 2009 when he was severely wounded by enemy fire.
Hatch was shot through the leg on the mission, leaving him permanently disabled and effectively ending his nearly 26-year military career.
“I thought I was going to bleed to death,” said Hatch, who wore a dark business suit and was joined in the courtroom by his service dog.
The former member of Naval Special Warfare Development Group, or SEAL Team Six, said the mission, planned in about 90 minutes, was among the most dangerous that he had undertaken in his career.
“Hostage rescue is quite a bit more dangerous than kill or capture [missions],” Hatch said. “You have to be faster. The enemy holds all the cards.”
Hatch stared at Bergdahl as he limped out of the courtroom after testifying.
Nance said Hatch would likely be called to testify further about the mission and the injuries he sustained, perhaps when Bergdahl returns to court for another pretrial hearing on July 27.
The judge has barred prosecutors from presenting evidence of injuries during the trial, because they could unfairly influence jurors to convict Bergdahl, who is not charged with causing injuries.
The Army charged Bergdahl with “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty” in March 2015.
He has yet to enter a plea to the charges.
Bergdahl’s attorneys are seeking the dismissal of the more serious misbehavior charge, which carries a potential life-in-prison sentence. Nance declined to rule on that issue Wednesday.
Bergdahl remains on active duty in a clerical job at Joint Base San Antonio in Texas and has not been held in pretrial confinement.