Prosecutors say they don't plan to use statements Bergdahl made while held captive
By AMANDA DOLASINSKI | The Fayetteville Observer, N.C. | Published: August 8, 2017
FAYETTEVILLE, N.C. (Tribune News Service) — Army prosecutors in the Sgt. Bowe Bergdahl desertion case said they don’t plan to use statements against him that he allegedly made while he was held captive for nearly five years by the Taliban in Afghanistan.
"The government doesn't have the intention to introduce (the statements)," Maj. Justin Oshana said during a preliminary hearing Tuesday at Fort Bragg.
Bergdahl, who recently had surgery on his shoulder, appeared in court with a sling around his left arm. He is charged with desertion and misbehavior before the enemy by endangering the safety of a command, unit or place. He could face life imprisonment if convicted of misbehavior before the enemy.
Bergdahl walked off his remote post in Afghanistan in 2009 and was subsequently held by the Taliban for five years. He was released in May 2014 in exchange for prisoners being held at the U.S. military prison at Guantanamo Bay, Cuba.
Charges were served to Bergdahl on Dec. 14, 2015, following an Article 32 preliminary hearing on Sept. 17 and 18, 2015, at Joint Base San Antonio. He is assigned to U.S. Army North at Joint Base San Antonio, Fort Sam Houston, Texas, and is not in pretrial confinement or any form of arrest, according to U.S. Army Forces Command.
The court-martial is scheduled for October at Fort Bragg.
Last month, defense lawyers filed a motion asking Col. Jeffery Nance, the military judge overseeing the case, to suppress comments Bergdahl made during his time in captivity. They said the statements were coerced, aren’t reliable and are unfairly prejudicial with little probative value.
In the motion, the lawyers said the statements were made involuntarily.
“He was imprisoned entirely against his will, alone for 1,796 days, or nearly five years,” according to the motion. “His conditions of captivity were characterized by torture, psychological torment, threats of execution and prolonged and intentional disregard for his well-being. Several of the statements that the government proposes to use against him were made under the orders of his captors, in which he faced threats of dire consequences for not cooperating.”
Also during the preliminary hearing, the judge briefly discussed a questionnaire that was distributed to potential jury members as a tool to find an impartial jury. About 20 questionnaires that were distributed to jury members have not been returned, and the judge instructed prosecutors and defense lawyers to track them down by the end of the week.
The questionnaire, which was devised by both parties, contains about 40 questions, including several related to President Donald Trump.
It’s not known if the questionnaire will be made public. Defense lawyers and prosecutors have said they would like the judge to seal the answers.
Defense lawyers were disappointed when they learned the judge tossed out a question asking potential jurors if they voted for Trump. They said Trump’s disparaging remarks during his presidential campaign could sway potential jurors, and have long argued that Bergdahl’s due process rights were violated by then-candidate Trump’s criticism.
Also on Tuesday, defense lawyers pushed for a subpoena to obtain outtakes of an interview that reporter Anderson Cooper conducted for CNN with retired Senior Chief Petty Officer James Hatch, a Navy SEAL. Hatch suffered a career-ending broken femur when he was hit by enemy fire on a mission to search for Bergdahl.
Defense lawyers argued outtakes from that interview are relevant to their case and asked the judge to compel prosecutors to obtain that record. Oshana countered that most of the interview isn’t relevant, so the outtakes would not be either. The interview is posted online.
“There are lots of portions of the interview that frankly aren’t relevant to what we’re talking about,” he said.
The next preliminary motion hearing is scheduled for September at Fort Bragg.
Staff writer Amanda Dolasinski can be reached at firstname.lastname@example.org.