FILE - In this Jan. 12, 2016, file photo, Army Sgt. Bowe Bergdahl arrives for a pretrial hearing at Fort Bragg, N.C. Bergdahl will appear before a judge, Monday, Oct. 16, 2017, to enter an expected guilty plea to charges that he endangered comrades by walking off his remote post in Afghanistan in 2009. (AP Photo/Ted Richardson, File)
Thursday, October 12, 2017 12:30 pm
Army schedules hearing to consider Bowe Bergdahl plea
JONATHAN DREW | Associated Press
RALEIGH, N.C. – Army Sgt. Bowe Bergdahl will appear in court next week to enter an expected guilty plea to charges that he endangered comrades by walking off his remote post in Afghanistan in 2009.
The Army announced that Bergdahl will enter a plea Monday at Fort Bragg. The news release didn't elaborate on what his plea would entail, but two individuals with knowledge of the case told The Associated Press last week that Bergdahl is expected to plead guilty to desertion and misbehavior before the enemy. They were not authorized to discuss the case and demanded anonymity.
Prosecutors aren't saying whether they have agreed to limit Bergdahl's punishment. The misbehavior charge carries a maximum penalty of life in prison, while the desertion charge is punishable by up to five years.
A lawyer for Bergdahl didn't immediately return a message seeking comment Thursday.
His trial had been scheduled to begin Oct. 23, but those dates are expected to be used for sentencing now. While guilty pleas allow Bergdahl to avoid trial, his sentencing is still likely to include dramatic testimony about service members injured searching for him.
Legal scholars say it will be revealed at Monday's hearing whether Bergdahl struck a deal with prosecutors, or is simply pleading guilty with hopes of leniency from the judge. His five years of imprisonment by the Taliban and its allies could be a factor in his sentencing in either scenario.
Military judges are supposed to make unbiased decisions, so if prosecutors have proposed a more limited punishment, this judge won't know exactly what they're calling for until after he decides on a sentence. Military jurisprudence calls for Bergdahl to ultimately be sentenced to the lesser of the two punishments, legal scholars said.
Because the defense has lost several pretrial rulings, government prosecutors have a strong hand to pursue punishment and little to gain from a lenient plea deal, said Rachel VanLandingham, a former Air Force lawyer who teaches at Southwestern Law School in California.
"The Army has gone after this case with a vengeance - why not continue that pursuit by asking for a stiff punishment?" she said. "But who knows, this case has been quite topsy-turvy."
Bergdahl could admit guilt without a plea agreement – known colloquially as a "naked plea" – which would be a risky move with some possible benefits. Such a plea wouldn't require Bergdahl to agree with prosecutors on certain facts of the case, as he would under a deal, said former Army lawyer Eric Carpenter, who teaches law at Florida International University.
But, Carpenter said, "The military judge can sentence you to whatever he wants, so that's the real risk that they would be taking."
Prosecutors gained leverage when the judge, Army Col. Jeffery R. Nance, decided to allow evidence of serious wounds to service members who searched for Bergdahl at the sentencing phase. The judge said a Navy SEAL and an Army National Guard sergeant wouldn't have wound up in separate firefights that left them wounded if they hadn't been searching for Bergdahl.
The defense also was rebuffed in an effort to prove President Donald Trump had unfairly swayed the case with scathing criticism of Bergdahl, including suggestions of harsh punishment. The judge wrote in a February ruling that Trump's campaign-trail comments were "disturbing and disappointing" but did not constitute unlawful command influence by the soon-to-be commander in chief.
Defense attorneys have acknowledged that Bergdahl walked off his base without authorization. Bergdahl himself told a general during a preliminary investigation that he left intending to cause alarm and draw attention to what he saw as problems with his unit. He was captured soon after by the Taliban and its allies.
But the defense team has argued that Bergdahl can't be held responsible for a long chain of events that included many decisions by others on how to conduct the searches.
The military probe of Bergdahl began soon after he was freed from captivity on May 31, 2014 in exchange for five Taliban prisoners. Former President Barack Obama was criticized by Republicans who claimed he jeopardized the nation's security with the trade, but Obama said: "The United States of America does not ever leave our men and women in uniform behind."
Bergdahl, who's from Hailey, Idaho, has been assigned to desk duty at a Texas Army base pending the outcome of his legal case.
Associated Press writers Josh Lederman and Lolita C. Baldor in Washington contributed to this report. Follow Jonathan Drew on Twitter at www.twitter.com/jonldrew