Prosecutors are expected to argue this week that injuries suffered in Afghanistan by a soldier and a Navy SEAL trying to find Army Sgt. Bowe Bergdahl, who left his outpost in June 2009, should be admitted as evidence in his desertion trial.
The search for Bergdahl, now 31, resulted in two U.S. servicemen being wounded: Army National Guard Sgt. 1st Class Mark Allen was shot in the head, and a Navy SEAL, Senior Chief Petty Officer Jimmy Hatch, was shot in the leg. Shortly after Bergdahl left his base the Taliban captured him, and in May 2014 the U.S. swapped him for five Taliban fighters.
This week’s pretrial hearing will consider whether jurors in Bergdahl’s court martial, set for October, would be unduly influenced if they learn of injuries to those who risked their lives trying to find Bergdahl, according to Military.com.
Military prosecutors say the serious injuries are relevant to the case because Bergdahl’s irresponsible actions – which in this case brought criminal charges that carry up to a life sentence -- put the servicemen in harm’s way and were a direct cause of their injuries.
The judge who is scheduled to hear military prosecutors’ arguments during the Fort Bragg, N.C., proceeding Wednesday and Thursday has already ruled once against mentioning the injuries in the trial. Prosecutors will ask the judge to reverse that decision, while Bergdahl’s lawyers will argue that the judge should let his decision stand.
"All of the injuries occurred on missions that would not have happened were it not for the manufactured and unnecessary crisis," Army Maj. Justin C. Oshana, a prosecutor, wrote in a court briefing. "Their injuries are directly relating to and resulted from the accused's misconduct, and, as such, the evidence is admissible at sentencing."
Bergdahl is accused of "misbehavior before the enemy by endangering the safety of a command, unit or place" and "desertion with intent to shirk important or hazardous duty.”
He has not pled to the charges and works at a military facility in San Antonio.
Court documents show that Hatch may testify this week. Bergdahl’s attorneys said they were not ready to question Hatch. The defense attorneys say they are researching the mission that involved Hatch and are waiting for evidence. That evidence would include a television interview Hatch gave regarding the mission, as well as a book he is writing about it.
Bergdahl’s defense team is also fighting the inclusion of remarks Bergdahl gave to an Army investigator after he was back in U.S. custody to the effect that he intentionally created a stir by disappearing so that he could bring high-level attention to concerns he had about his unit.