AP Explains: Bergdahl judge weighed complex leniency factors

Army judge Col. Jeffery Nance arrives at the Fort Bragg courtroom facility for Army Sgt. Bowe Bergdahl's sentencing hearing on Tuesday, Oct. 31, 2017, on Fort Bragg, N.C. Bergdahl, who walked off his base in Afghanistan in 2009 and was held by the Taliban for five years, pleaded guilty to desertion and misbehavior before the enemy. (Andrew Craft/The Fayetteville Observer via AP)

FORT BRAGG, N.C. - Army Sgt. Bowe Bergdahl's brutal five years of captivity by Taliban allies carried significant weight in an Army judge's decision to spare him prison time for leaving his post in Afghanistan in 2009, legal experts said. Criticism of Bergdahl by President Donald Trump also appeared to push the judge toward leniency.

Army Col. Jeffery Nance didn't explain how he formulated the sentence that also included a dishonourable discharge, reduction in rank and a fine. But the judge had to consider a complex array of arguments for and against leniency.

Prosecutors asked for a 14-year prison sentence, citing several service members' serious wounds while searching for Bergdahl. The defence sought to mitigate the punishment with evidence of Bergdahl's captivity, mental illnesses, contrition and Trump's harsh criticism.

"It's really rare for there to be this much mitigation evidence," said Eric Carpenter, a former Army lawyer who teaches law at Florida International University. "It's kind of hard to distinguish which is the one that Nance gave the most weight to. But I think the Taliban conditions were pretty onerous."



Former Air Force lawyer Rachel VanLandingham noted that Bergdahl's captivity was twice cited by officers in early investigations as a reason not to send him to prison. The officer who oversaw Bergdahl's 2015 Article 32 hearing, which serves a similar purpose to a civilian grand jury process, wrote imprisonment wasn't necessary largely due to "atrocities" against Bergdahl, though he noted he didn't have evidence of casualties on search missions.

"The high level folks who have looked at this said: 'We just don't think confinement is appropriate because of the amount of torture he suffered,'" said VanLandingham, who teaches at Southwestern Law School in California.

During sentencing, Bergdahl described beatings and torture by his captors with copper wire and unending bouts of illness brought on by squalid conditions. After several escape attempts, he was placed in a cage for four years.

Greg Rinckey, a former Army lawyer now in private practice, said he believes the "brutal conditions" and their duration were the most significant of the mitigating factors.



In campaign speeches, Trump frequently criticized Bergdahl, calling him a "dirty, rotten traitor." Nance rejected defence motions that charges should be dismissed or punishment limited because Trump was exerting unlawful command influence. But Nance indicated he would consider Trump's comments a factor promoting leniency.

"Trump helped take that confinement off the table," VanLandingham said.

Now, Trump's condemnation of the lack of prison time on Twitter on Friday could give the defence lawyers a strong hand to get the sentence reduced further by an appeals court, the legal experts say. A dishonourable discharge triggers an automatic appeal to a higher military court.



Nance also likely factored in Bergdahl's willingness to take responsibility by pleading guilty, his emotional apology in court, and his mental health issues, the experts said. Bergdahl choked up Monday as he apologized to the wounded searchers in court.

Bergdahl and his lawyers offered evidence of two mental disorders as mitigating factors. A psychiatrist testified Bergdahl was influenced by a schizophrenia-like condition called schizotypal personality disorder that made it hard to understand consequences of his actions, as well as post-traumatic stress disorder after a difficult childhood.

Bergdahl's escape attempts and valuable information he provided intelligence officers also helped, VanLandingham said.

"You have a mentally ill individual who served five years honourably in captivity. He genuinely showed remorse. And I think those things came across loud and clear," VanLandingham said.



Nance had to weigh the leniency factors against prosecution evidence of several service members wounded on search missions. Before sentencing, Nance ruled those troops wouldn't have wound up in separate firefights if they weren't looking for Bergdahl.

Prosecutors cited a soldier whose hand was shattered by a rocket-propelled grenade and another who suffered a head wound that put him in a wheelchair and rendered him unable to speak. A Navy SEAL suffered a career-ending leg wound on another search.

Carpenter described the wounds as "very compelling" evidence against Bergdahl, but he said Nance likely recognized the searches involved events beyond Bergdahl's control.

"Because there were so many other factors between Bergdahl's actions and those injuries, the weight of the evidence went down," Carpenter said.


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