Guest Opinions

Guest Opinion: Bergdahl’s next court appearance most like a preliminary hearing

We thank the Idaho Statesman for keeping us posted on the latest event in the status of U.S. Army accused deserter, Sgt. Bowe Bergdahl. But the July 25 report repeats a common error made by the media.

Yes, Bergdahl is awaiting a preliminary hearing. It is not, however, “similar to a civilian grand jury.” The ABC network, The Associated Press, and even nationwide and regional media who regularly cover military bases have perpetuated that error.

His preliminary hearing, an Article 32, Uniform Code of Military Justice event, is similar to ... a civilian preliminary hearing. Consider: He and his lawyer have been told it will occur; they were given a copy of the charges; they will be present throughout; they will see and can cross-examine all witnesses against him; they can challenge any exhibits offered against him; they can offer defense witnesses and exhibits in evidence; Bergdahl can waive his constitutional right to silence under the Fifth Amendment and testify if he wishes; they can argue for dismissal of charges and/or for filing of lesser charges. All of these rights are regularly accorded civilian defendants charged with one or more felonies in Idaho courts and facing Idaho preliminary hearings.

None of these rights occur at a grand jury.

As a military judge advocate, I participated as defense attorney on felony charges in several Article 32 preliminary hearings. In retirement, as a deputy district attorney for over 11 years in San Diego County (and briefly later here in Boise), I was a prosecutor in over 150 preliminary hearings and in three grand juries.

When a preliminary hearing — whether civilian or military — ends with a decision that the defendant should face trial, higher authority acts and the defendant and counsel act.

Trial on the referred charges may follow, trial on only some or lesser charges may follow, a plea agreement on charges and punishment may avoid any trial. Other outcomes are possible. Today’s staff judge advocates and today’s county prosecutors and public defenders are the experts. I write only to correct an error that tells readers that Bergdahl’s next court event — now set for September — would occur in secret; not so.

Walter Donovan, Brig. Gen. USMC (Ret.), Vietnam veteran, lives in Boise.

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