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Monday, October 19, 2020

Bergdahl’s lawyers say the judge’s job application posed a conflict

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CHARLOTTE, NC A new motion filed in the case of the former US Army sergeant Bowe Bergdahl asks the US military’s highest court of appeals to overturn his sentence, citing an alleged conflict of interest involving the judge who originally presided over his sentencing.

The motion filed on Friday seeks to have the impartiality of Army Colonel Jeffrey Nance, a military judge who sentenced Bergdahl, be re-examined at the Armed Forces Court of Appeals. The motion says Nance was working to secure a job with the Justice Department at the time of her sentence in the Bergdahl case.

In 2017, Bergdahl pleaded guilty to desertion and misconduct in front of the enemy. Bergdahl was a 23-year-old private first class in June 2009 when, after five months in Afghanistan, he disappeared from his remote infantry post near the Pakistani border, sparking a massive search operation.

Videos surfaced soon after Bergdahl’s disappearance showing him in captivity by the Taliban. For years, the US has been keeping an eye on Bergdahl with spies and satellites as behind-the-scenes negotiations took place sporadically. Then, in May 2014, he was handed over to US special forces in an exchange for five Taliban inmates at Guantanamo Bay prison, fueling an emotional US debate over whether Bergdahl was a hero or a deserter.

Appeals judges upheld Bergdahl’s conviction earlier this year in a narrow 3-2 decision when they found the derogatory comments made about Bergdahl by the late Senator John McCain and President Donald Trump at the House’s Rose Garden Bianca in October 2017 did not invalidate her accusation.

Trump had described the former soldier as a “dirty rotten traitor,” demanded the execution of Bergdahl by the firing squad, and joked in the last round election appearances that Bergdahl should be dropped from a plane without parachute.

On October 16, the same day Nance accepted Bergdahl’s guilty plea, court documents show that he applied for a position as a federal immigration judge.

Following Trump’s comments, Bergdahl’s attorney asked Nance to dismiss the case because of Trump’s comments “vilifying” Bergdahl.

According to court documents, Nance assured Bergdahl’s attorney that Trump’s comments would have no impact on his decision by saying, “I have no hopes or ambitions beyond my current rank … I am not completely swayed by any opinion that President Trump may have on Sergeant. Bergdahl. “

But according to the motion, Nance emphasized his role as a judge presiding over Bergdahl’s case while applying to work at the Justice Department and even included as a sample of writing a ruling rejecting Bergdahl’s illegal command’s influence arguments.

Court documents state that Nance never disclosed that she was applying for a position as an immigration judge. But a press release announced his appointment to the position by Attorney General Jeff Sessions in September 2018.

The Department of Justice public affairs staff handling communications for the Georgia Immigration Court who currently lists Nance as a judge did not immediately respond to an email seeking comment.

The motion was first reported on the CAAFlog website, which covers military legal affairs. Bergdahl’s attorney, Eugene Fidell, confirmed that the motion posted on the blog was accurate, but declined further comment in an email.

In November 2017, Nance spared Bergdahl Prison with a sentence that included a dishonorable discharge, a reduction in rank, and forfeiture of certain pay. Prosecutors had called for a harsher sentence of over a decade in prison for injuries sustained by service members who sought Bergdahl after his disappearance in 2009. Trump quickly called the sentence a “disgrace” at the time.

Prior to the sentencing, Nance rejected defense motions that the charges should be dropped or punishment limited because Trump was exercising illegal command influence. Though he refused to rule in favor of defense, he said he was concerned at the time about Trump’s comments influencing public perception of the military justice system. He said then that he would consider Trump’s comments a factor promoting leniency.

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Associated Press writers Jonathan Drew in Durham, North Carolina, and James LaPorta in Delray Beach, Florida contributed to this report.

Copyright 2020 The Associated Press. All rights reserved. This material may not be published, transmitted, rewritten or redistributed without permission.

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