Posted on Jul 26, 2023
Bowe Bergdahl's court-martial conviction voided by U.S. judge
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Interesting...wonder where this is going to end up.
Bowe Bergdahl's court-martial conviction voided by U.S. judge
Posted from reuters.com
UCMJ
Court Martial
Criminal Justice
Posted >1 y ago
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I don't see how that judge even presided at all. For a Court Martial 1st a Court of Military Review would look at a case then the Court of Military Appeals which would have to be on a point of law. The ONLY appeal past that is the US Supreme Court and they are NOT obligated to hear any case they choose not to. Unless a case originated in a civilian Federal Court they Have NO jurisdiction and that judge was way out of line and exceeded His authority.
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SFC Kelly Fuerhoff
"Reggie Walton, a U.S. district judge, said the military judge who presided over Bergdahl's court martial proceedings failed to disclose his application at the time to become a federal immigration judge.
That could create the appearance of potential bias, given then-President Donald Trump's denunciations of Bergdahl, Walton ruled. The court noted that there was no finding of actual bias.
"This case presents a unique situation where the military judge might be inclined to appeal to the president's expressed interest in the plaintiff's conviction and punishment when applying for the immigration judge position," Walton wrote."
It was a military judge who presided over the case at the time - but had applied to become a federal immigration judge as well.
"Walton noted that (Jeffrey) Nance (the military judge), then an Army colonel, had stated during proceedings that he was a "a terminal Colonel, which means I'm not going anywhere but the retirement pastures."
But Nance even submitted one of his orders in the Bergdahl case as his writing sample in his application to become a federal judge, according to the ruling.
Walton also took the opportunity to warn politicians about commenting on ongoing cases - in apparent reference to Trump, who declared Bergdahl a traitor who should be executed.
"The Court notes that what occurred in this case illustrates why individuals aspiring for public office and those achieving that objective should not express their desired verdict," he wrote."
That could create the appearance of potential bias, given then-President Donald Trump's denunciations of Bergdahl, Walton ruled. The court noted that there was no finding of actual bias.
"This case presents a unique situation where the military judge might be inclined to appeal to the president's expressed interest in the plaintiff's conviction and punishment when applying for the immigration judge position," Walton wrote."
It was a military judge who presided over the case at the time - but had applied to become a federal immigration judge as well.
"Walton noted that (Jeffrey) Nance (the military judge), then an Army colonel, had stated during proceedings that he was a "a terminal Colonel, which means I'm not going anywhere but the retirement pastures."
But Nance even submitted one of his orders in the Bergdahl case as his writing sample in his application to become a federal judge, according to the ruling.
Walton also took the opportunity to warn politicians about commenting on ongoing cases - in apparent reference to Trump, who declared Bergdahl a traitor who should be executed.
"The Court notes that what occurred in this case illustrates why individuals aspiring for public office and those achieving that objective should not express their desired verdict," he wrote."
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SFC Kelly Fuerhoff
His lawyers first tried to get it dismissed in 2016 when McCain made some comments: Lawyers for Sgt. Bowe Bergdahl believe the judge overseeing the court-martial should have dismissed the desertion and misbehavior charges amid criticism from Sen. John McCain -- and are calling on the military's highest court to intervene.
Eugene Fidell, Bergdahl's lawyer, filed a writ of mandamus on Wednesday calling on the U.S. Army Court of Appeals for the Armed Forces to toss out the charges. Bergdahl's lawyers filed a similar petition to the U.S. Army Court of Criminal Appeals last month, which has not been resolved.
https://www.corrections1.com/bowe-bergdahl/articles/bowe-bergdahls-lawyers-appeal-to-highest-military-court-WkLeqNk4W0hXA0jQ/
2020 they filed an appeal about the judge on the case at the time: https://www.fayobserver.com/story/news/military/2020/09/20/bergdahl-lawyers-say-judges-job-application-posed-conflict/ [login to see] /
"A new motion filed in the case of former U.S Army Sgt. Bowe Bergdahl is asking the highest appeals court for the U.S. military to overturn his conviction, citing an alleged conflict of interest involving the judge who originally presided over his sentencing.
The motion filed Friday seeks to have the Court of Appeals for the Armed Forces re-examine the impartiality of retired Army Col. Jeffrey Nance, the military judge who sentenced Bergdahl. The motion says Nance was working to secure a job with the Department of Justice at the time of his ruling in the Bergdahl case."
Eugene Fidell, Bergdahl's lawyer, filed a writ of mandamus on Wednesday calling on the U.S. Army Court of Appeals for the Armed Forces to toss out the charges. Bergdahl's lawyers filed a similar petition to the U.S. Army Court of Criminal Appeals last month, which has not been resolved.
https://www.corrections1.com/bowe-bergdahl/articles/bowe-bergdahls-lawyers-appeal-to-highest-military-court-WkLeqNk4W0hXA0jQ/
2020 they filed an appeal about the judge on the case at the time: https://www.fayobserver.com/story/news/military/2020/09/20/bergdahl-lawyers-say-judges-job-application-posed-conflict/ [login to see] /
"A new motion filed in the case of former U.S Army Sgt. Bowe Bergdahl is asking the highest appeals court for the U.S. military to overturn his conviction, citing an alleged conflict of interest involving the judge who originally presided over his sentencing.
The motion filed Friday seeks to have the Court of Appeals for the Armed Forces re-examine the impartiality of retired Army Col. Jeffrey Nance, the military judge who sentenced Bergdahl. The motion says Nance was working to secure a job with the Department of Justice at the time of his ruling in the Bergdahl case."
Bowe Bergdahl's lawyers appeal to highest military court
Lawyers for Sgt. Bowe Bergdahl believe the judge overseeing the court-martial should have dismissed the desertion and misbehavior charges amid criticism from Sen. John McCain
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SMSgt Lawrence McCarter
SFC Kelly Fuerhoff - Overall that Judge Reggie B. Walton actually has a pretty good record and was appointed by President George Bush. The system under the UCMJ though is very specific for review 1st step Court of Military Review final step in the UCMJ process is the Court of Military appeals. The ONLY appeal available beyond this is the US Supreme court who can choose to hear or not hear the case. Although I would agree political figures especially as Commander in Chief such as President Trump should not have commented on any pending case. If a case didn't originate with a US District Court then they have No Jurisdiction to hear any appeal at all from a Court Martial proceeding within the UCMJ under existing Federal law, only the US Supreme Court has that jurisdiction to hear the case and make any ruling. Only Congress can make laws and so far there is no provision that tallowed Judge Walton to take the action He did and He exceeded His authority.
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SFC Kelly Fuerhoff
SMSgt Lawrence McCarter - I just posted what was reorted. But it looks like they went to the Court of Military Appeals 2 years ago...and then I found this in Washington Post: "U.S. District Judge Reggie B. Walton finalized a March order granting summary judgment in favor of Bergdahl, who was convicted in October 2017 of desertion and misbehavior before the enemy." And: "Both sides can appeal Walton’s ruling. A Pentagon spokesperson declined to comment. Justice Department spokesman Terrence Clark said that “the department will be declining to comment on ongoing litigation at this time.” The office of the former Army colonel who imposed the sentence and a spokesman for the immigration courts, which are part of the Justice Department, did not immediately respond to an emailed request for comment late Tuesday." I'm just going off what's published. It seems like there was some order in March that granted a summary judgement in favor of Bergdahl.
I found this on Military Times: "Senior Judge Reggie Walton, of the U.S. District Court in Washington, D.C., issued an order Tuesday that partially granted the federal government's motion to dismiss the Bergdahl case. But Walton ruled in favor of Bergdahl's argument that the Army judge in his case failed to disclose a possible conflict of interest -- that he had applied for a civilian position at the Justice Department while presiding over the court-martial."
"He appealed his case through the military court system based on an argument that President Donald Trump and the late Sen. John McCain exerted unlawful command influence in the case by making comments and statements about him and publicly impugning him and declaring his guilt.
The Court of Appeals for the Armed Forces rejected Bergdahl's unlawful influence argument and upheld his conviction in a 3-2 decision, with the majority saying that Bergdahl's choice to plead guilty in his court-martial weighed heavily on their ruling.
Bergdahl's attorneys then filed a suit in civilian federal court arguing he was denied a fair trial as a result of Nance's failure to disclose his future employment aspirations, as well as the alleged unlawful command influence."
https://www.military.com/daily-news/2023/07/25/bowe-bergdahls-sentence-thrown-out-judge-case-takes-new-turn.html
It seems that his attorneys filed a suit in civilian federal court and that appears to be why it was in a district court.
I found this on Military Times: "Senior Judge Reggie Walton, of the U.S. District Court in Washington, D.C., issued an order Tuesday that partially granted the federal government's motion to dismiss the Bergdahl case. But Walton ruled in favor of Bergdahl's argument that the Army judge in his case failed to disclose a possible conflict of interest -- that he had applied for a civilian position at the Justice Department while presiding over the court-martial."
"He appealed his case through the military court system based on an argument that President Donald Trump and the late Sen. John McCain exerted unlawful command influence in the case by making comments and statements about him and publicly impugning him and declaring his guilt.
The Court of Appeals for the Armed Forces rejected Bergdahl's unlawful influence argument and upheld his conviction in a 3-2 decision, with the majority saying that Bergdahl's choice to plead guilty in his court-martial weighed heavily on their ruling.
Bergdahl's attorneys then filed a suit in civilian federal court arguing he was denied a fair trial as a result of Nance's failure to disclose his future employment aspirations, as well as the alleged unlawful command influence."
https://www.military.com/daily-news/2023/07/25/bowe-bergdahls-sentence-thrown-out-judge-case-takes-new-turn.html
It seems that his attorneys filed a suit in civilian federal court and that appears to be why it was in a district court.
Bowe Bergdahl's Sentence Is Thrown Out by Judge as Case Takes New Turn
A federal judge ruled in favor of the government in one argument but agreed with Bergdahl on the other, ultimately vacating his sentence and all subsequent orders and decisions thereafter.
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