SGT Bergdahl is suspected, and appears convicted of desertion. That's a big news story. There have been a number of experts discussing the allegations and quite nicely lay out the procedures that the military must follow in prosecuting a Soldier.
But no-one is discussing what SGT Bergdahl and his family ought to be doing to protect him in his legal jeopardy. I suggest they need to engage the services of an experienced military defense counsel to help them navigate the legal rocks and shoals which lie ahead.
Soldiers suspected of a crime have rights. Their right to silence is broader than that applicable to civilians. A Soldier has the:
- Right to Silence
- Right to talk to a lawyer
- Right to terminate or stop an interrogation
- Right to leave the interrogation
The difficulty is making sure that all personnel dealing with SGT Bergdahl are aware of their obligations, that they respect his rights, and that he himself assert his rights. To do that he needs a military defense lawyer to help.
To prove desertion the military prosecutor has to prove beyond reasonable doubt that SGT Bergdahl had no authority to "wander off," and that if he did so it was with intent to remain away permanently, and to shirk important service or avoid hazardous duty.
One of the ways a prosecutor proves desertion is by statements made by the accused at the time he left and during the return and reintegration process. Some may refer to the latter statements as admissions or confessions.
The real danger time is now where spontaneous admissions might be made, or made in circumstances where SGT Bergdahl was not properly advised of his rights. SGT Bergdahl's statements may come during the provision of medical care, where there is almost no medical privilege against disclosure of information to the commander, during psychological counseling, during debriefings by intelligence agents, including those from three letter agencies, as well as through formal investigations conducted by Army CID. We are seeing some of this in media stories about what he is telling medical providers.
A seasoned civilian military defense lawyer will have extensive experience with AWOL and desertion cases, including some of the defenses, extenuations, and mitigation that might be applicable.
The issue of debriefings and confessions or admissions is illustrated by the case of SGT Clayton Lonetree. He was convicted because of unwarned statements he made during debriefings about his alleged spying while assigned to the U. S. Embassy in Moscow.
In 1993, the Supreme Court refused to review the conviction of Clayton J. Lonetree, the marine convicted of spying for the Soviet Union while assigned to guard the American embassies in Moscow and Vienna in the mid-1980's.
Private Lonetree, who was reduced in rank from sergeant and sentenced to 25 years in prison, argued that he had been tricked into confessing by two intelligence agents who promised him confidentiality but then reported him to the authorities and testified against him at his court-martial.
Private Lonetree talked to the two agents, identified publicly only as Little John and Big John, over several days in a Vienna hotel room. They never informed him of his right to remain silent or consult a lawyer. The military courts that upheld his conviction by a Marine Corps court-martial ruled that because the intelligence agents were not his superior officers or law-enforcement agents, and because Private Lonetree was not in custody when he talked to them, neither the lack of warnings nor the broken promise of confidentiality made the confession invalid.
In his Supreme Court appeal, Lonetree v. United States, No. 92-1095, Private Lonetree's lawyers argued that the confession should be regarded as involuntary and inadmissible because the promise of confidentiality made it the product of "coercive conduct."
Linda Greenhouse, New York Times, Supreme Court Roundup; No Review of Espionage Conviction, April 6, 1993.
In addition to using a Soldier's own statements against him, it is not unusual to find an additional charge for lying to investigators during the interrogation process.Get a Full Case Evaluation of Your AWOL / UA / Desertion Case
Our AWOL/UA clients have ranged in absences from a few days to 20 years.
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Was a court-martial going on:
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Here's an interesting piece of news on this topic.
Hopefully you are not this person:
A former United States Army serviceman is now waiting for his deportation to face a court martial for deserting his post [.] The deserter was identified as Michael Lawrence Eastwood of Glendale, California and is now detained at the Bureau of Immigration (BI) detention facility in Bicutan, Taguig City. BI Chief Ronaldo Ledesma said Eastwood, 41, went AWOL (absence without official leave) and hid in the Philippines for almost a year. Ledesma said Eastwood was the subject of a no bail warrant from the US Defense Department. BI intelligence chief Faizal Hussin said Eastwood had been overstaying in the Philippines and was an undocumented alien after the US State Department revoked his passport last July 2.
Prior to 911 it was possible on occasion to get an overseas AWOL client discharged in-absentia. Now it is very hard. It is also harder to surrender from overseas by coming back to the US.