Mimesis Law
23 May 2017

Bowe Bergdahl: Serial v. The U.S. Government

Dec. 21, 2015 (Mimesis Law) — Everyone knows the name Bowe Bergdahl. What few people actually know is the actual story behind the name. Sure, like most things, many have pulled their generic stance on the Bergdahl case out of little more than gut reaction and emotion. Many have called (quite literally) for his head, while others see him as a POW who deserves sympathy and honor. What crime did Bergdahl apparently commit? Simply, he walked away. He walked away from the U.S. Army.

Bergdahl’s case has become the focus of season 2 of Serial, a podcast that has registered itself as a potential path out of the journalistic wasteland that is our modern news media. The infamous army sergeant voluntarily wandered off from the Army outpost OP Mest in eastern Afghanistan and was almost immediately captured by the Taliban. Bergdahl remained in Taliban custody for five years before a prisoner exchange brought him home.

General Robert Abrams recently announced that Bergdahl will be facing a General Court Martial, which technically could carry the death penalty, although the Army has said they will not seek execution if Bergdahl is convicted.

Just life in prison.

It is impossible not to notice that Abrams’ announcement came on the heels of the season premiere episode of Serial.

General Abrams’s decision came just days after Sergeant Bergdahl was heard for the first time publicly explaining why he left his base, in taped interviews that were broadcast by the podcast “Serial” last week.

The General’s decision went in a very different direction than what was recommended by the officer who presided over Bergdahl’s September hearing.

Monday’s judgment is more severe than what an Army officer, Lt. Col. Mark Visger, recommended after overseeing a two-day hearing for Bergdahl’s case in September, according to Bergdahl’s lawyer. Visger recommended that Bergdahl face a lower form of judicial proceeding known as a special court-martial, which would have come with a maximum penalty of 12 months of confinement. He also said Bergdahl should not face any confinement at all.

Abrams decision to completely ignore Visger’s recommendation came four days after the first episode of Serial, where millions of Americans actually heard Bergdahl speak for the first time. He told, in relative clarity, his reasons for deserting his post. He wanted to cause a search response so that once the Army found him, they would be forced to listen to his grievances. He sounds very much like a dumb kid living out an action hero fantasy, and not at all like the monstrous traitor so many have painted him out to be. But General Abrams assures us that the decision to throw all of the books at Bergdahl was made completely independently of the podcast.

A spokesman for Abrams, John Boyce, said the decision to go forward with a general court-martial had nothing to do with Bergdahl’s participation in the “Serial” podcast.

Glad that is all cleared up then.

The most striking thing about this season of Serial is that it tells us all how incredibly little we know. How little we know about the complexity and nuance of the Bergdahl story. How little we know about the part of the world we have been at war with for over a dozen years. How little we know about the military in general and about soldiers specifically. How little we know about the line between right and wrong in wartime.

What we all know all too well, though, is how easily and loudly many cozy public figures will trumpet their chest-beaten certainty about Bergdahl.

A spokesman for Rep. Duncan D. Hunter (R.-Calif.), whose office has closely tracked the case, questioned whether Bergdahl participating in the podcast may have forced the Army to seek the most serious form of trial.

“He came across nuttier than anyone could have foreseen, and there was already consensus he wasn’t all together to begin with,” said the spokesman, Joe Kasper. “There has to be little sympathy left, where there was some to take.”

Or, he is coming across as someone who is just as “nutty” as a barely-adult would be if he were subsisting on dried food and shitting into a hole in the ground in a terrible part of the world instead of living the life of a normal young man in America.  It is amazing how fine the line is between hero and villain.

But it turns out that Hunter is one of the more reasonable figures in the anti-Bergdahl camp. The current frontrunner for the Republican presidential nomination, Donald Trump, is not so forgiving.

Donald J. Trump, for one, has called the sergeant a “traitor” who should be executed, while Senator John McCain, Republican of Arizona and the chairman of the Armed Services Committee, has vowed to hold hearings if the sergeant is not punished.

Trump might be harsh, but at least he is not trampling all over the notion of separation of powers like McCain.

Bloviating politicians aside, there is no question that Bergdahl suffered. Greatly. As season 2 progresses, Serial will give us an in-depth look into the life that Bergdahl endured while a Taliban prisoner. We know that he suffered physically.

Another defense witness, Terrence Russell, who debriefed Sergeant Bergdahl after his release, testified that the sergeant had suffered more in captivity than any American since Vietnam, including beatings with rubber hoses and copper cables, and uncontrollable diarrhea for more than three years.

In just the first two episodes of Serial, we begin to see how much he suffered psychologically and emotionally as well. Bergdahl compared himself to an item that is discarded into the back of a closet and then forgotten about. He spent so much time locked in a dark room that at times, he lost touch with concepts of time and the physical world.

See, the tragic beauty of the Bergdahl case is that no one is right. There are no correct answers. If Sarah Koenig, the host of Serial, taught us anything with season 1, it is that she will not be spoon feeding us anything. Thanks to the twenty plus hours of recorded interviews of Bergdahl by filmmaker Mark Boal, we get to hear in his own words why he decided to walk into the wilderness of southwest Asia and what his five years in captivity were like.

Much of the intrigue of the Bergdahl story is less about what happened to him but about all of the other people involved. Starting at the top, President Obama was lumped in as an accessory after the fact to the “traitorous” actions of Bergdahl. The decision to trade five Taliban prisoners for Bergdahl has only become more controversial considering that our government went to so much trouble to free this prisoner from over there, only to now put even more effort into making sure that he gets another long stint in prison over here.

The most damning indictment of Bergdahl’s actions is the accurate charge that his desertion placed thousands of soldiers in danger.

His former platoon leader, Capt. John Billings, testified about his “utter disbelief that I couldn’t find one of my own men.”

He and the other commanders said soldiers searched almost nonstop, never knowing when the ordeal would end, while their underlying mission to support Afghan security forces fell by the wayside. The manhunt involved thousands of troops across thousands of square miles.

When Bergdahl went missing, those in charge ordered that no stone be left unturned. The core military value of “leave no soldier behind” sent a lot of young soldiers deep into the area where Afghanistan borders Pakistan. Bergdahl set in motion a set of events that placed the lives of his fellow soldiers in danger. Serial has unapologetically made it clear that he not only did this, but that he actually, in a way, intended this. This is the most valid source of anger against Bergdahl.

But Serial goes beyond our reaction about what hurts us, and reminds us of our shared humanity. While Bergdahl knew that his disappearance would evoke a response from the Army, he could not have known how massive that response would be. Koenig interviewed numerous soldiers who were involved in the mission to find Bergdahl, a mission that for over one month took priority over all other Army operations in that area. Soldiers recounted rolling into towns in military convoys and going door to door looking for their lost comrade. This left the local populace shaken. One story in particular displayed the true damage that was done by this entire operation.

One soldier told of entering homes and trying to communicate with the residents. No one spoke English and no one had Bergdahl. But the Americans were instructed to search everyone. This included women. When they entered homes, the women in the home would all huddle in the corner in fear. Suspecting that the Taliban might be hiding Bergdahl as a female, the U.S. soldiers physically removed the women’s veils to make sure.

This forces the listener to truly ask the question, how can this be worth it? The damage that this heavy-handed search did to whatever our war effort has been must outweigh the need to find one person. Our military would disagree.

And then there is Bergdahl, the criminal defendant. We often see the world of the military as separate from our own. Much of that is by design. Bergdahl’s attorneys will have an uphill battle considering that Bergdahl has now publicly admitted that he willingly left his post, essentially admitting to the charge of desertion. But the legal implications of his statements do not account for the social and political implications of those same statements. In explaining that he went AWOL in order to bring attention to what he saw as deficient and even dangerous decisions being made by his superiors, he has presented us with a conundrum. How do we judge someone who endangered others by an act that was intended to bring attention to and thereby resolve an already dangerous situation (as Bergdahl saw it)?

Although the Army claims that the Bergdahl court marshal has nothing to do with Serial, that does not change the fact that the podcast will bring unprecedented attention to a military proceeding that is usually conducted far from the limelight. Bergdahl has the rare opportunity to go to the American public and plead the morality, if not the legality, of his decisions. And with the help of Serial, that may end up being a powerful defense.

19 Comments on this post.

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  • Eric Mayer
    21 December 2015 at 3:19 pm - Reply

    Normally, I’m a big fan of your writing here, but this post is uncharacteristic of your overall great writing.

    Where do I begin? I read this as a former Army Infantryman lawyer with experience in the JAG Corps (prosecutor and defense while in uniform) and as civilian counsel (defense after hanging up the uniform). Do I believe Bergdahl deserves a fair shake and all the due process possible? Yes. He’ll get that in droves. However, most of your assertions mischaracterize the military justice system and the fairness of the process.

    Having said that, I’ll go section by section (as I perceive the general points).

    1st Section: “Simply, he walked away. He walked away from the US Army.” This oversimplification is a slap in the face of everyone who has ever served honorably. The way you said it makes it sound like his “walking away” is akin to the gordita guy at Taco Bell deciding he doesn’t want to smell cheap ground mystery meat anymore and deciding to abandon his faux Mexican food career. It is not the same. Walking away from the military has serious implications, and it is justifiably criminalized when one thinks of the fact that maintaining a cohesive and effective force is a primary concern for the Army. This isn’t Taco Bell. It is the Army, and their unique and serious mission should never be trivialized.

    2nd Section: “…technically could carry the death penalty”? Was the case referred as a capital case per Rule for Court-Martial 103? No. So, no, technically, it cannot carry the possibility of the death penalty. At this stage of the process, mentioning the death penalty in conjunction with this case is promoting stupidity.

    3rd Section: “Just life in prison.” Thank you for joining journalists who promote ignorance by focusing on the statutory maximum sentence. Really? Does anyone who has practiced law for a day think that Bergdahl is going to receive the statutory maximum? Do you realize that his possible punishment in a General Court-Martial ranges from “no punishment” to the statutory maximum? That’s a big range, capable of accounting for the total weight of any aggravation, extenuation, and mitigation. For more information about poor journalism in the reporting of maximum sentences in order to achieve sensationalism, refer to Popehat https://popehat.com/2015/10/08/bad-reporting-on-matthew-keys-possible-sentence-conceals-prosecutorial-power/.

    4th Section (including from the 5th actual para. through “Glad that is all cleared up then.”): It is true that LTC Mark Visger (who I know, but have not spoken to regarding this case) recommended a special court-martial, which could impose a punishment that includes reduction to the lowest enlisted pay grade, 12 months of confinement, and a Bad-Conduct Discharge. While LTC Visger’s recommendation does specify no confinement, he doesn’t go so far as to recommend against a Bad-Conduct Discharge. What he doesn’t say is just as important as what he does say. Did you notice that?

    You mention “Abrams’ decision to completely ignore Visger’s recommendation.” Did he? If so, where do you get this information? Consider the process. Visger’s decision would first be provided to the FORSCOM Chief of Justice (a Major or Lieutenant Colonel JAG). Then, it would be discussed with the prosecutorial team, who the Chief of Justice supervises. From those discussions, a recommendation would be formulated, which then would be discussed with the FORSCOM Deputy Staff Judge Advocate (probably a Lieutenant Colonel or Colonel JAG) who weighs in on the recommendation. It is then shared with the FORSCOM Staff Judge Advocate (a very senior JAG Colonel), who would have a chance to give advice and recommendations. Then, it is sent through the chain of command for the accused, and they make recommendations as to disposition. Once everything percolates through the necessary legal and command channels, it is presented to Abrams by the FORSCOM Staff Judge Advocate, and a decision on referral is made.

    Notice that this is not a decision made in a vacuum, and no less than 5 lawyers have considered Visger’s decision along with the weight of the prosecution’s evidence (much of which may not have been shared at the Article 32 because they don’t have to present all of their evidence) and any known extenuation and mitigation.

    From a utility and procedural standpoint, a General Court-Martial makes sense. They already conducted an Article 32, so referring it to a General Court-Martial adds no additional expense for the government and allows the full range of possible punishment, from zero punishment to maximum punishment (assuming he is found guilty of something). Just because something arrives at a General Court-Martial does not mean there is a presumption of guilt or of anticipated punishment.

    General Court-Martial Convening Authorities occasionally go against the advice of Article 32 investigating officers. Nowhere is this more prominent than with sexual assault allegations. In those cases, however, General’s often go against advice to drop all charges, rather than mere advice to seek a lower court-martial disposition. So, while this may be exciting, unique, and newsworthy to you, it is not exciting or noteworthy to those who habitually practice military law.

    5th Section: You mention Rep. Hunter, Donald Trump, and Sen. McCain. I assume this is because you want to imply Unlawful Command Influence (UCI). If you’ve been watching things like the MAJ Hasan court-martial, the Brigadier General Sinclair court-martial, the Bradley Manning court-martial, the LTC Lakin court-martial, or any court-martial involving allegations of sexual assault and the pet projects of Senator Kirsten Gillibrand, you’d know that comments by third parties and anyone outside the executive branch do not constitute UCI. Appellate courts are unified on this point. In order to have UCI, you must occupy a command position, and it must be proven that such command interference had an influence on the outcome or the sentence.

    You claiming this is a clear case of UCI to any experienced military practitioner is like using the “fire in a crowded theater” argument with a First Amendment scholar. It is laughable and demonstrates a lack of understanding.

    6th Section: This is the “Bergdahl suffered” portion of your argument. Maybe. In the law we call this mitigation and extenutation, the presence of which does not disprove the existence of aggravation. Do you really think that the prosecution does not have ample evidence to show the harm caused to other Soldiers? I am particularly disappointed in your minimizing of the perspectives of the other members of his platoon. In a case like this, the effect of his actions on the is just as important as the consequences he suffered from his decisions.

    Even in training, the worst thing that can happen is to lose accountability of one of your Soldiers. In a combat zone, this is even more dire. Fellow Soldiers and leaders prioritize, as Bergdahl’s chain of command did, finding any lost Soldier. They did what was perceived as necessary, even though it meant imposing on the local population. By the way, that platoon still had a mission in their area of responsibility which did not abate just because Bergdahl quit his post. You obviously do not understand the burden this placed upon even the lowest Soldier in his platoon.

    7th Section: This is the “Bergdahl and his defense team have an uphill battle” section. Do they? If so, relative to what? You mention that this is due to “Bergdahl has now publicly admitted that he left his post, essentially admitting to the charge of desertion.” Assuming that his comments covered all the elements of desertion, how is this a shocking and unfair development? Is he the first person to have public comments used against him in a judicial proceeding?

    So, is Bergdahl all alone in this? Without a fighting chance?

    There are two lawyers given to Bergdahl for free. They are both in uniform. At least one is undoubtedly experienced (by military standards). The third is Eugene Fidell, who started practicing law in the late 60s, teaches at Yale, and has been a member of the leadership of the National Institute of Military Justice since its inception. In my experience, Bergdahl has a more robust defense team than 99.9% of all accused servicemembers at court-martial. They will have a chance, pursuant to the Rules for Court-Martial, to voir dire the panel members, challenge the impartiality of the judge, challenge evidence, and present evidence in defense, extenuation, and mitigation.

    Did you also consider that, if he receives a harsh sentence, including one that includes a Bad-Conduct or Dishonorable Discharge, he gets an automatic appeal to the Army Court of Criminal Appeals? For that, he gets another team of lawyers assigned for free (including possibly Mr. Fidell, who I assume has been working thus far pro bono) to write the brief and argue it to the court? Did you consider the possibility of an appeal after that to the Court of Appeals for the Armed Forces (where he maintains his appellate team)?

    Note: I won’t address the apparent defense decision to participate in Serial, as not enough information is known. However, most defense lawyers seem to agree that such statements are ill-advised.

    Near end of your post, you rely heavily on the purported validity of Bergdahl’s claim that he had issues that required the attention of the Commanding General exercising authority over Bergdahl’s infantry platoon. Yet, the only evidence we have of this is Bergdahl’s assertions that illegal and immoral actions were taking place. I have yet to see solid, corroborating evidence for this assertion. Some of his peers claim that everyone knew they were returning within a few days to the larger base, and that Bergdahl’s claims are complete BS. However, you seem content that Bergdahl’s actions were justified since he was, for all practical purposes, accepting the role of whistleblower. Is this because you’ve seen all the evidence in this case, or are you just relying upon whatever Serial tells you?

    Contrary to what you believe, Serial does not tell the whole Bergdahl story–just the story from his perspective, carefully honed by months of interaction with defense counsel. The whole story will be told in a courtroom, with panel members and a judge or judge-alone. They will make a decision, based on much more than a podcast. They will see the evidence, witness it being challenged by the defense, and make a decision.

    I’ll close with an analysis of this statement “the podcast will bring unprecedented attention to a military proceeding that is usually conducted far from the limelight.”

    Because that hasn’t happened recently?

    In US v. Alberto Martinez?

    In US v. Lakin?

    In US v. Bradley Manning?

    In US v. Sinclair?

    In US v. Hasan?

    In congressional hearings regarding the military’s treatment of sexual assault allegations (resulting in widespread and fundamental changes to the Uniform Code of Military Justice in the last 5 years)?

    No, the military justice system has long been open to all and scrutinized heavily by congress and the press. The only difference now is that you are tuning in because you are entertained by Serial, and your judging this case by what you hear on a podcast does not qualify as unprecedented attention.

    • Ken Womble
      21 December 2015 at 4:24 pm - Reply

      Eric,

      I appreciate your kind words and I would love nothing more than to assist in whatever way to revive the discussion amongst blawgers. I’ve been called wrong many, many times. Hell, even sometimes I have been wrong.

      The thing that fascinates me about Bergdahl is the fact that so little is known about him. And by him, I mean Bergdahl specifically and the military in general. You clearly know a great deal more about military process than I. But the podcast is anything but a platform for Bergdahl. Everyone gets a chance to talk. Many of his former colleagues were interviewed and have a less than favorable view of the star of the show. Bergdahl’s comments are actually from interviews he previously did with a filmmaker, not the host of the podcast, so it is unclear whether his attorneys showed up in time to try to stop him. And after what he did and listening to some of what he has said, I’m not sure anyone could have.

      I completely get the reasons why desertion is a crime. But from my Brooklyn apartment, far, far away from that part of the world, there is something intriguing about what he did. Bergdahl could be a traitor and a monster. He could be an arrogant ass. He could be a dumb kid. He could have truly intended positive outcomes and did something with, at least in his mind, good intentions. I do not contend that he is a hero. But I haven’t been through what he had before he ever stepped foot off his post, so I also feel conflicted about judging him.

      You and I have spent our careers in that gray area between right and wrong. The thing that fascinates me (and millions of other people who have also had their attention drawn back to this story by Serial) about this story is how it has the potential to dissect the ideas of right and wrong for the individual (Bergdahl) and then smash them up against the notions of right and wrong for the community (military).

      I wasn’t coming at this from a procedural perspective. But from a naked assessment of right and wrong in a context that I could never have truly understood. But after hours of listening to interviews and facts from that podcast (come on, a bit more popular than an Iowa bridge game), I will definitely have a better understanding. So will many others.

      • shg
        21 December 2015 at 4:39 pm - Reply

        After hours of listening to Serial, you may well have more information, but it’s doubtful you will have a better understanding. Others, even less so.

        • Ken Womble
          21 December 2015 at 4:46 pm - Reply

          This is what I don’t understand (since we are talking about a lack of understanding). Serial provides an immense amount of information about a subject. It does not, like so many other shows and articles, tell us what we should think about that information. We are free to use it as we see fit. I am going to use it to learn about Bergdahl, Afghanistan, the military, and the military justice system. Can’t quite see how that won’t lead to a better understanding.

          • shg
            21 December 2015 at 4:59 pm -

            Serial has one, huge, gap. It offers no substantive insight or context within which to understand the information it provides. It creates a false sense of understanding, as the listener can only take the information and put into his own paradigm, view it through the lens of ignorance. It’s like non-lawyers reading caselaw and thinking they understand law. They may have read 1000 decisions, but without a legal education and experience, they can’t appreciate the meaning of what they’ve read. Serial fails miserably to bring understanding. At best, it’s entertainment. Nothing more.

        • Ken Womble
          22 December 2015 at 9:52 am - Reply

          I disagree. The first season provided an inside look into the actual life of an actual criminal case. It included numerous interviews of numerous people involved, including the main man, the convicted Adnan Syed. I agree that our expertise is helpful, but where we part company is in the view that it is essential. The more that people know about the criminal justice system, the better, even if that move is only from total ignorance to slight comprehension.

          This is especially true when we are talking about the most basic level of criminal justice — right vs. wrong. Sure, you and I can listen to a person speak and then map out how that would likely play in front of a jury and what arguments it would allow for summation, but the more people that we can get thinking more in depth about right vs. wrong, the better.

          You are right, Serial gathers a ton of information and then dumps it in the listeners lap (or ears to be more accurate). I have spoken to many non-lawyers who have a much better grasp on the world of criminal justice than they used to by listening to that program. Not one of them came away from it with increased respect for our system, I can tell you that.

          For this season, the Bergdahl story is another right vs. wrong. It gives information and allows the people to draw their own conclusions. They might not see it the same way as I do, but, hell, at least they are seeing it instead of Keeping Up With Kardashians.

          • shg
            22 December 2015 at 10:35 am -

            Right vs. wrong? Maybe. Most likely not. Most likely bullshit filtered through the lens of a dilettante. I remember hearing the first innocence pitch from a defendant more than three decades ago. I was naïve, and it sounded somewhat convincing, until research proved it to be just ordinary bullshit. Then next thousand times I heard the story, it was far easier to discern the bullshit. Every pitch tries to turn it into right vs. wrong, but it takes context and understanding to distinguish truth from bullshit.

            There’s a lot of people out there trying to sell you their bullshit, Ken. It’s got nothing to do with right and wrong, but with whether you’re sufficiently knowledgeable to distinguish truth from bullshit. Defendants can tell the truth. Defendants can lie. A lot more lie than tell the truth. After more than three decades of hearing the pitches, maybe 10,000 stories like Adnan Syed’s, the bits of Serial that you chalk up to right vs. wrong bear the same stink of worthlessness that can be found in every pitch. Except they no longer spark the curiosity that they would in the clueless, uninformed listener. Instead, they’re just more bullshit.

            With Bergdahl, there are real issues at stake. They’re just not the issues that ignorant listeners, or lawyers unfamiliar with the military, are competent to recognize. People will walk away with the grossly mistaken belief that they are more knowledgeable than they were before. They’re not. They’ve simply confirmed their bias.

            That may be seen as a good thing by people who share that bias, but it is dishonest and wholly lacking in intellectual integrity. For those of us who put intellectual integrity above our political agenda, this is a bad thing. And we don’t accept the Kardashian’s as the bar by which dreck is judged.

          • Ken Womble
            22 December 2015 at 12:11 pm -

            “Most likely bullshit filtered through the lens of a dilettante.” Really? I’ve listened to every episode. There aren’t many people out there who provide less agenda in their reporting than Koenig. She talks to anyone who is relevant and will talk to her, and she, unlike seemingly every media figure out there, she asks followups.

            “They’re just not the issues that ignorant listeners, or lawyers unfamiliar with the military, are competent to recognize. People will walk away with the grossly mistaken belief that they are more knowledgeable than they were before. They’re not.”

            First, not all listeners are ignorant. And even if they are, I cannot see for the life of me, how providing the public with information is a bad thing. Are you suggesting that the uninformed must remain uninformed until they have complex issues explained to them by experts?

            There is enough in Serial for everyone. It was supremely interesting for me because I got to see how a layperson (Koenig) explored a criminal case. I found her perspective fascinating. For non-lawyers, they may have learned or realized something different. But the suggestion that non-experts don’t know how to use this information is confusing to me.

            Some people will listen to Serial and think they know everything. Fine. But many others will listen to it and find out so much about a world that they knew nothing about, be it a criminal murder case in Maryland or a military desertion that led to captivity in a war zone on the other side of the world.

            Sure, we know more about criminal justice than most, but I don’t see that as disqualifying everyone else from the discussion.

          • Scott Greenfield
            22 December 2015 at 12:52 pm -

            It was supremely interesting for me because I got to see how a layperson (Koenig) explored a criminal case. I found her perspective fascinating.

            I’m glad you found it fascinating. I did not. Most other criminal defense lawyers did not. Most of us found her naivete and cluelessness deeply problematic. Worse still, I found her passing off some of the flagrant bullshit she was being fed because of her lack of experience to be outrageous. Spreading banal lies because one is too ignorant to realize that they’re lies isn’t fascinating to me.

            While you’re allowed to disagree, this is a shallow and disingenuous argument:

            And even if they are, I cannot see for the life of me, how providing the public with information is a bad thing. Are you suggesting that the uninformed must remain uninformed until they have complex issues explained to them by experts?

            They are not informed by giving them raw partial “information” (note that it’s not actually information, but whatever people chose to say to further their ends. There is no testing of its accuracy or truthfulness. Are a bunch of lies information?) without context or understanding. They are misinformed by it. Grossly misinformed. And your use of hyperbole, that it requires “experts,” is an indulgence in logical fallacy.

            Koenig throws whatever unfiltered “information” she has against the wall and lets uninformed people make of it what they will. There’s a reason why we don’t put guns in the hands of children and tell them to go have fun. Yet you see nothing wrong with it.

            Edit: Just realized that we’re both sitting on a prime example of the problem. You’ve read Eric’s comment and post about the UCMJ issues. You’re a knowledgeable and experienced criminal defense lawyer, so one would certainly presume you to have the context to appreciate the Bergdahl case. Yet, despite your knowledge and experience, Eric has shown how you’ve misunderstood Serial, applied your erroneous context to it, and ended up with a post that’s materially wrong. And for someone lacking your knowledge and experience, and thus trying to grasp it with no context whatsoever (except CSI Vegas), the problem is exponentially worse. That’s the problem.

          • Ken Womble
            22 December 2015 at 1:31 pm -

            Look Scott, I don’t want to get into a big back and forth here where you ratchet up the invective each time I fail to capitulate. You should know at this point that I respect other people’s opinions, but I very much have my own. I will not run from my position because you say I am outnumbered by criminal defense attorneys who think differently.

            It all boils down to this. I think Serial is and looks like it will continue to be a program that makes people smarter. You say that their reporting is biased but I disagree. In our current age of sound bites and 30 second news segments, the fact that this program has convinced millions of people to spend hours and hours sifting through the information of one story is amazing. As I see it, it brings people to our table. I would rather welcome them than push them away.

          • shg
            22 December 2015 at 2:01 pm -

            I would be disappointed in you if you capitulated. If you reconsidered in light of additional information, not so much. That said, I will take my own advice.

            In our current age of sound bites and 30 second news segments, the fact that this program has convinced millions of people to spend hours and hours sifting through the information of one story is amazing.

            I agree with you. That Serial at least makes people think about criminal law’s flaws, beyond fortune cookie platitudes, is a good thing. If it provided some competent commentary that gave its raw story context, it would be much better. I want people to come to our table as well. But I want them to come for the right reasons, though, because they’ve gained an understanding rather than an emotional catharsis.

            And the “big back and forth” is what lawyers used to do in the blawgosphere, as Eric noted. We engaged with each other, because we’re lawyers, not pundits.

    • Keith
      28 December 2015 at 10:07 am - Reply

      Ken,

      I really can’t argue with the point by point Eric laid out here, but I wanted to ask you about one line in particular: “What crime did Bergdahl apparently commit? Simply, he walked away. He walked away from the U.S. Army.

      Would you say the same thing about a PD that (simply) walked away from a client?

      Where is the sense of duty, honor and responsibility that permeates the words on these pages?

      Keith.

      • Ken Womble
        28 December 2015 at 11:17 am - Reply

        You are pulling one line out of this and attaching a meaning to it that is not supported by the rest of the post.

        “The most damning indictment of Bergdahl’s actions is the accurate charge that his desertion placed thousands of soldiers in danger.

        His former platoon leader, Capt. John Billings, testified about his “utter disbelief that I couldn’t find one of my own men.”

        He and the other commanders said soldiers searched almost nonstop, never knowing when the ordeal would end, while their underlying mission to support Afghan security forces fell by the wayside. The manhunt involved thousands of troops across thousands of square miles.

        When Bergdahl went missing, those in charge ordered that no stone be left unturned. The core military value of “leave no soldier behind” sent a lot of young soldiers deep into the area where Afghanistan borders Pakistan. Bergdahl set in motion a set of events that placed the lives of his fellow soldiers in danger. Serial has unapologetically made it clear that he not only did this, but that he actually, in a way, intended this. This is the most valid source of anger against Bergdahl.”

        Honestly, I have no interest in allowing honor to interfere with understanding. But the fact of the matter is this. Bergdahl walked away. His reasons for doing so and the response and aftermath are, quite simply, fascinating.

        • Keith
          28 December 2015 at 11:31 am - Reply

          You are pulling one line out of this and attaching a meaning to it that is not supported by the rest of the post.

          Sorry if that wasn’t clearer on my part. I was questioning why the line was there because it wasn’t supported by the rest of the post. It seemed like an odd choice of phrasing.

          • Ken Womble
            28 December 2015 at 11:41 am -

            More about the contrast in the freedom to act in a certain way in normal life versus what can account for a hated crime in the world of military life.

  • What is Bergdahl’s Favorite Serial? | UNWASHED ADVOCATE
    21 December 2015 at 3:40 pm - Reply

    […] is not a compliment, as his normal style, tone, and substance are a delight to read. Today, he wrote about the Bergdahl case, criticizing the military justice system and emphasizing the effect that the podcast Serial will […]

  • Eva
    22 December 2015 at 8:59 am - Reply

    Shg
    I really hope this is not a personal conversation. As a non-lawyer I find that what both you & Mr. Womble have indicated completely fascinating. It is true I (& probably others like me) won’t truly understand the nuances of law at the level of a trained lawyer but your lively discussion had been a real eye-opener. I will be looking into that Serial series with what both of you indicated.

  • “Making A Murderer”: Any Love Is Good Love? | Simple Justice
    10 January 2016 at 7:07 am - Reply

    […] cool new law show last year was Serial.  As season two opened, focusing on the case of Army deserter, Bowe Bergdahl, anticipation was that Serial would again capture the American psyche.  Ironically, after the […]

  • Making A Murderer, A Response To Josh Kendrick
    11 January 2016 at 8:51 am - Reply

    […] caused a kerfuffle amongst my Fault Lines colleagues Ken Womble and Scott Greenfield.  Ken opined that it actually […]