The preliminary hearing for Idaho Army Sergeant Bowe Bergdahl is set for Thursday. Bergdahl left his Afghanistan post in 2009, was captured by the Taliban, held for five years, and released back to the U.S. in a prisoner trade. He is charged with desertion and misbehavior before the enemy.
The military hearing is known as an Article 32. Several media reports, and the Bergdahl Wikipedia page, say his Article 32 is similar to a civilian grand jury. But Brigadier General Walt Donovan says that’s incorrect.
Donovan spent 30 years in the Marine Corps. He was a military judge advocate for 13 years. He is a Vietnam Veteran and a member of both the Idaho and California State Bar. He was a defense attorney in several Article 32 hearings.
“An Article 32 is a preliminary hearing exactly like the preliminary hearings here in Idaho and the preliminary hearings in California, both of which I’ve done numerous times. It’s absolutely unlike a grand jury,” says Donovan.
He says both the military and civilian hearings are screening devices. On a felony charge, the accused faces a trial, unless there’s a plea deal. Donovan says the preliminary hearing is extremely valuable.
“A magistrate hears minimal evidence as to identity, jurisdiction, that it’s being tried in the proper county and state, the elements of the crime, and a recommendation to proceed. That’s what happens in civilian life prelims and that’s what happens in Article 32.”
Donovan says he’s not sure where the media reports, comparing an Article 32 to a grand jury, are coming from. But he’s looked at Bowe Bergdahl’s Wikipedia page and found the comparison there. He says a grand jury is very different.
“The witnesses appear. There are 23 members of the grand jury. They hear and evaluate the credibility and they make a decision. Is there probable cause to believe this fellow did that here in this state such that he should be held to answer trial?”
Donovan says grand juries are often held in secret, the accused and his lawyer may not know what’s happening - they are useful when dealing with explosive cases, where a prominent person is accused of some crime. The grand jury can look into the accusation without it becoming public and tarnishing someone’s reputation if it is determined no crime has been committed.
He says in Bergdahl’s hearing, both Bergdahl and his lawyer will be there and can ask questions of witnesses and be involved in the proceedings. His lawyer can also suggest Bergdahl’s charges be changed to a lesser offense.
Donovan says at the Article 32, Bergdahl’s lawyer may offer a plea bargain in the case. Otherwise, “there will be a recommendation from the hearing officer, most likely that he be held to trial at a general court martial to answer one or more of the specified charges,” says Donovan.
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