Judge Questions Including Injury Evidence in Bergdahl Case

FORT BRAGG, N.C. — A military judge questioned whether jurors would reach unfair conclusions about Army Sgt. Bowe Bergdahl if they're allowed to consider serious wounds to two soldiers who searched for him after his 2009 disappearance in Afghanistan.

The judge, Army Col. Jeffery Nance, heard arguments Tuesday about whether to allow the evidence, but ended a pretrial hearing without ruling.

Trial is set to open in April 2017 for Bergdahl. He is charged with desertion and misbehavior before the enemy, the latter of which carries a maximum penalty of life in prison.

Prosecutors argue that two wounded soldiers' injuries should be allowed to show Bergdahl put soldiers in harm's way when he walked off his post in July of 2009. The soldiers were wounded in a firefight — one shot in the head — as they searched for Bergdahl, according to testimony earlier this week.

Prosecutors have said evidence of injuries will help them show that Bergdahl endangered his comrades, one of the elements of the misbehavior before the enemy charge.

"Individuals were in fact harmed, and that's the best evidence of endangerment," said Capt. Eileen Whipple, a prosecutor. Leaving out evidence of the injuries "leaves us with a gap in how dangerous these missions were."

The judge posed tough questions for the prosecutors about such evidence.

"You're not entitled to use that evidence if it's unfairly prejudicial," Nance told them. "This trial becomes a trial about that operation, that mission, and not a trial about what's on the charge sheet."

Nance suggested the "horrific nature" of the one soldier's head wound might provoke jurors to decide based on emotion that "because Sgt. Allen was so horrifically injured, he's guilty."

"That's an unfair conclusion," Nance added.

Bergdahl hasn't yet chosen whether to have a jury of military members, or trial by judge alone.

Prosecutors cited a search mission involving a half-dozen U.S. service members embedded with 50 members of the Afghan National Army. They were attacked near a town in Afghanistan on July 8, 2009.

U.S. Army National Guard Sgt. 1st Class Mark Allen was shot in the head during the firefight. Prosecutors said Allen suffered a traumatic brain injury that has left him in a wheelchair and unable to communicate. Another soldier had hand injuries and required surgery because of a rocket-propelled grenade.

"It's important to keep in mind that the proximate cause of these injuries is the Taliban. Members of the Taliban are the ones who fired the weapons, not Sgt. Bergdahl," said Maj. Oren Gleich, a defense attorney.

Several soldiers involved in the firefight have testified they came from another part of Afghanistan to take part in a hastily planned search mission. They had been embedded with Afghan soldiers to help train them.

Numerous soldiers from different units searched for Bergdahl.

Gleich also argued that prosecutors had failed to tie the two soldiers' wounds into the charges against Bergdahl — who's specifically accused him of endangering a group of Army units known as Task Force Yukon. Gleich said prosecutors didn't establish that the wounded soldiers were part of the task force.

A defense witness also testified Tuesday that the mission's hasty planning was substandard even considering the urgency of the missing-soldier alert that Bergdahl caused.

Retired Army Lt. Col. Jose Aymat testified that he investigated the mission that resulted in Allen's wounds and found its planning lacked several "basic requirements" including a proper risk assessment.

"There was no need to rush through things," he said.

At Tuesday's hearing, Nance adjusted the trial date, saying it will begin April 18. Earlier this week, he had set a May date after prosecutors asked for a delay because of the pace at which they're able to turn over classified evidence.

Bergdahl, who's from Hailey, Idaho, walked off his post in Afghanistan in 2009 and was held captive by the Taliban and its allies for five years. He has said he wanted to cause an alarm and draw attention to what he saw as problems with his unit. The Obama administration's decision to swap prisoners for his return was heavily criticized by some Republicans.

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