Lawyers for alleged deserter Sgt. Bowe Bergdahl said it’s regrettable that a military judge is preventing them from asking potential jurors if they voted for President Donald Trump in the 2016 election.
“We do have an issue concerning what we think is a core question, which is how did people vote in the election,” Bergdahl’s lawyer Eugene Fidell said to reporters after a hearing Thursday on Fort Bragg. “We think that’s important, and we’re not going to know the answer to that question. That’s regrettable.”
Col. Jeffery Nance, the military judge overseeing the case, listened to arguments Thursday morning as defense lawyers and prosecutors discussed a questionnaire that will be distributed to potential jurors in the upcoming court-martial. Nance did not finalize the questionnaire, but said he will not allow a question the defense lawyers wanted — asking jurors who they voted for in the 2016 presidential race.
“I’m not going to put that back in,” Nance said, after defense lawyers objected to the question’s omission.
Nance said the question is inappropriate. He said he believed the defense lawyers would be able to get the information they needed about potential jurors from the other questions.
The court-martial is scheduled to begin Oct. 23 at Fort Bragg.
Bergdahl, who walked off a remote base in Afghanistan in 2009 and was subsequently held by the Taliban for nearly five years, is charged with desertion and misbehavior before the enemy by endangering the safety of a command, unit or place. He could face life imprisonment if convicted of misbehavior before the enemy.
The questionnaire is a tool to help lawyers find an impartial jury, if Bergdahl chooses a jury trial. The week before the court-martial is reserved for panel selection.
Bergdahl may choose to have a bench court-martial.
Prosecutors did not raise any concerns with the questionnaire.
It’s not known if the questionnaire will be made public. Defense lawyers and prosecutors have said they would like the judge to seal the answers.
Defense lawyers said Trump’s disparaging remarks during his presidential campaign could sway potential jurors and have long argued that Bergdahl’s due process rights were violated by then-candidate Trump’s criticism. During a motions hearing in February, the lawyers played part of a 28-minute compilation video that they made with clips of Trump during interviews and town hall meetings as he calls Bergdahl a “traitor” and pantomimes an execution.
The questionnaire will have about 40 questions. At least five are related to Trump, defense lawyers said.
“We’re obviously going to be getting valuable information, but not to be coy about it, but we really do believe we need to know how people voted,” Fidell said. “President Trump made no secret — it’s the exact opposite — of his view that our client is, in his word, a traitor. His conduct during the course of the campaign was extraordinarily appalling, completely un-American and he should be ashamed for doing what he did.”
Also during the hearing, Bergdahl agreed to three stipulations related to material on the impact of evidence in connection with service members who were injured on missions to search for him. The stipulations were not announced publicly.
The next hearing is scheduled for July 27.
Staff writer Amanda Dolasinski can be reached at firstname.lastname@example.org or 486-3528.
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