Arguments on Troops' Injuries Expected at Bergdahl Hearing This Week

WASHINGTON -- Prosecutors want to present evidence that a soldier and a Navy SEAL suffered grievous injuries on separate missions to find Army Sgt. Bowe Bergdahl if the accused deserter is convicted later this year, recent court documents show.

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The judge overseeing Bergdahl's case, Army Col. Jeffery R. Nance, is expected to hear arguments about the admissibility of those injuries Wednesday and Thursday, when Bergdahl returns to a Fort Bragg, N.C., courtroom for a pretrial hearing. The 31-year-old's court-martial is scheduled for October.

Nance barred prosecutors from presenting evidence that servicemembers were injured searching for Bergdahl in the days after he left his small outpost in eastern Afghanistan in June 2009 and was captured by the Taliban. Nance ruled in December that the injuries could unfairly influence jurors to convict Bergdahl, who is charged with deserting his post and misbehavior that endangered his unit. He is not charged with causing injuries.

Prosecutors, however, argued that those injuries demonstrate the impact of Bergdahl's alleged crimes and should be included for jurors to weigh before sentencing him. Bergdahl faces up to life in prison if convicted of the more serious misbehavior charge.

"All of the injuries occurred on missions that would not have happened were it not for the manufactured and unnecessary crisis," lead prosecutor Army Maj. Justin C. Oshana wrote in a court briefing this month. "Their injuries are directly relating to and resulted from the accused's misconduct, and, as such, the evidence is admissible at sentencing."

Army National Guard Sgt. 1st Class Mark Allen was shot in the head July 8, 2009, while on a mission in Paktika province to find Bergdahl.

Navy Senior Chief Petty Officer Jimmy Hatch, a Navy SEAL, was shot through the leg a day later on a special operations mission to locate the captured soldier. Their injuries left both men unable to continue their military careers; Allen remains wheelchair-bound, unable to communicate and entirely dependent on others.

Bergdahl's defense attorneys want Nance to bar prosecutors from presenting the injuries before sentencing. The injuries were not directly caused by Bergdahl, they argue in court documents, and were the result of a variety of factors including hasty planning and a determined enemy.

In a briefing to the court filed this month, prosecutors included Hatch as a potential witness who could testify about his mission this week, but it was not clear whether he would appear at the hearing. Defense attorneys advised Nance they would not be prepared to question Hatch this week.

Bergdahl's lawyers wrote June 12 that they have just begun investigating the mission where the SEAL was injured and have outstanding requests for evidence about that operation, including a copy of a book Hatch is writing and outtakes from an interview he gave to a cable news network.

Bergdahl's lawyers have also asked Nance to bar prosecutors from using information from an interview their client gave an Army investigator after he was returned to American custody in May 2014 in a controversial swap for five senior-level Taliban commanders held at Guantanamo Bay in Cuba. The attorneys, in a motion filed Monday, wrote that prosecutors should not be able to use Bergdahl's interview with now-Lt. Gen. Kenneth Dahl without "independent evidence" to corroborate the statements as facts.

In that 371-page sworn statement, Bergdahl told Dahl he had willingly left Observation Post Mest to cause a disturbance that would place him in front of a general officer to express concerns about his unit's leadership. He said he had no intention of deserting the Army.

The Army charged Bergdahl with "misbehavior before the enemy by endangering the safety of a command, unit or place" and "desertion with intent to shirk important or hazardous duty" in March 2015.

He has yet to enter a plea to those charges. Bergdahl remains on active duty in a clerical job at Joint Base San Antonio in Texas and has not been held in pretrial confinement.