1 00:00:00,120 --> 00:00:03,160 Speaker 1: There have been questions about why Army Sergeant bo burg 2 00:00:03,240 --> 00:00:05,720 Speaker 1: Doll left his post in Afghanistan in the middle of 3 00:00:05,720 --> 00:00:08,399 Speaker 1: the night for more than eight years. We may get 4 00:00:08,440 --> 00:00:11,680 Speaker 1: some more answers after his military trial on charges of 5 00:00:11,760 --> 00:00:16,120 Speaker 1: desertion and misbehavior before the enemy in late October, Burgdal 6 00:00:16,320 --> 00:00:19,480 Speaker 1: basically admitted to walking off his post on the podcast 7 00:00:19,560 --> 00:00:26,000 Speaker 1: serial twenty minutes ongoing good greet. Certainly it really starts 8 00:00:26,040 --> 00:00:31,000 Speaker 1: to thinking I really did something. He was captured by 9 00:00:31,040 --> 00:00:34,600 Speaker 1: the Taliban shortly after and held for five years until 10 00:00:34,600 --> 00:00:38,680 Speaker 1: he was freed in two fourteen in an exchange for 11 00:00:38,760 --> 00:00:42,479 Speaker 1: five Taliban prisoners. Burgdal has chosen to be tried by 12 00:00:42,520 --> 00:00:46,320 Speaker 1: a military judge rather than a military jury, a critical 13 00:00:46,360 --> 00:00:49,159 Speaker 1: decision in this case where he faces a maximum sentence 14 00:00:49,200 --> 00:00:52,600 Speaker 1: of life in prison. Our guests are Lawrence Morris, general 15 00:00:52,640 --> 00:00:55,960 Speaker 1: counsel at Catholic University. He's a retired Army colonel who 16 00:00:56,040 --> 00:00:59,840 Speaker 1: was a judge advocate, and and Rachel Van Landingham, a 17 00:01:00,080 --> 00:01:03,000 Speaker 1: fessor at Southwestern Law School. She's a retired Air Force 18 00:01:03,000 --> 00:01:07,080 Speaker 1: lieutenant colonel who was a judge advocate. Larry, let's start 19 00:01:07,080 --> 00:01:11,560 Speaker 1: with the charges against Burgdal. Defense attorneys lost emotion to 20 00:01:11,640 --> 00:01:15,360 Speaker 1: have the charge of misbehavior before the enemy thrown out. 21 00:01:15,959 --> 00:01:23,080 Speaker 1: Explain these charges. The charge of misbehavior is a charge 22 00:01:23,120 --> 00:01:26,160 Speaker 1: that of course only applies in wartime, and the way 23 00:01:26,280 --> 00:01:31,520 Speaker 1: it applies here is, you know, the prosecution's argument would 24 00:01:31,600 --> 00:01:35,920 Speaker 1: be that the law that says any soldier, any service 25 00:01:36,000 --> 00:01:40,840 Speaker 1: member before the enemy who runs away or abandons his 26 00:01:40,959 --> 00:01:45,000 Speaker 1: post and by the words of the law, endangers the 27 00:01:45,080 --> 00:01:49,480 Speaker 1: safety of his unit by that act, by that disobedience 28 00:01:49,560 --> 00:01:54,320 Speaker 1: or that neglect or that misconduct, is then uh eligible 29 00:01:54,360 --> 00:01:57,240 Speaker 1: to be punished separate from you know what we normally 30 00:01:57,240 --> 00:02:00,760 Speaker 1: talk about as desertion, which is, you know, a similar 31 00:02:00,840 --> 00:02:05,000 Speaker 1: charge for quitting your unit to avoid hazardous duty or 32 00:02:05,040 --> 00:02:08,880 Speaker 1: to surek important service. So the by charging both of these, 33 00:02:08,960 --> 00:02:12,440 Speaker 1: because they have you know, different legal bases, uh, the 34 00:02:12,520 --> 00:02:16,160 Speaker 1: government been can really push its theory that you know, 35 00:02:16,240 --> 00:02:21,280 Speaker 1: you abandoned your people and took off and Rachel Before 36 00:02:21,280 --> 00:02:24,000 Speaker 1: we get into this question of judge versus jury. Um, 37 00:02:24,160 --> 00:02:26,320 Speaker 1: you heard the clip that June played at the top, 38 00:02:26,440 --> 00:02:30,519 Speaker 1: and UHH Sargeant berg Dal said some other things on 39 00:02:30,880 --> 00:02:34,200 Speaker 1: serial as well. Has he conceded some aspects of the 40 00:02:34,320 --> 00:02:38,480 Speaker 1: case by by um admitting in that clip that he 41 00:02:38,560 --> 00:02:41,880 Speaker 1: may have done something wrong. Well, I mean, it certainly 42 00:02:41,919 --> 00:02:44,440 Speaker 1: sounds so from from the from the clips and from 43 00:02:44,600 --> 00:02:49,160 Speaker 1: his long statements that were used in evidence during what 44 00:02:49,320 --> 00:02:52,280 Speaker 1: was called the It's similar to preliminary hearing during what 45 00:02:52,360 --> 00:02:56,760 Speaker 1: the military calls an Article thirty two um investigation, in 46 00:02:56,880 --> 00:03:00,239 Speaker 1: which he had there were hundreds of pay just of 47 00:03:00,320 --> 00:03:04,040 Speaker 1: statements which he gave to his to an investigating officer, 48 00:03:04,160 --> 00:03:06,840 Speaker 1: a major general at the time. That that seems to 49 00:03:07,560 --> 00:03:10,120 Speaker 1: uh admit some of the some of the elements of 50 00:03:10,240 --> 00:03:14,160 Speaker 1: the critically the desertion charge. That'll be interesting to see 51 00:03:14,200 --> 00:03:18,840 Speaker 1: what happens in October. Larry. He's claimed that he intended 52 00:03:18,880 --> 00:03:21,960 Speaker 1: to cause alarm and draw attention to what he saw 53 00:03:22,040 --> 00:03:25,960 Speaker 1: as leadership problems in his unit. Is there ever an 54 00:03:26,040 --> 00:03:31,280 Speaker 1: excuse for leaving your post for something like that? And 55 00:03:31,440 --> 00:03:36,880 Speaker 1: not as phrased? You know, the important threshold consideration is 56 00:03:36,960 --> 00:03:42,280 Speaker 1: that soldiers are only obliged to obey lawful orders. But 57 00:03:42,960 --> 00:03:47,080 Speaker 1: when those orders are lawful, obviously there's no opt out 58 00:03:47,120 --> 00:03:52,600 Speaker 1: provision for orders that might seem to you unwise, dangerous, stupid, reckless. 59 00:03:53,040 --> 00:03:55,200 Speaker 1: You don't get to walk out of those, and I 60 00:03:55,280 --> 00:03:57,760 Speaker 1: think the government will. I think you would expect that 61 00:03:57,840 --> 00:04:00,520 Speaker 1: the government would look to have a simple case that 62 00:04:00,640 --> 00:04:04,080 Speaker 1: doesn't get into or second guests, you know the wisdom 63 00:04:04,160 --> 00:04:07,960 Speaker 1: of this or that tactical decision, much less the strategic 64 00:04:08,040 --> 00:04:11,360 Speaker 1: decision that had him at the uncomfortable spot he was 65 00:04:11,440 --> 00:04:14,560 Speaker 1: in Afghanistan on the day that he left. The argument 66 00:04:14,640 --> 00:04:17,440 Speaker 1: simply will be so long as the order was lawful, 67 00:04:17,680 --> 00:04:19,880 Speaker 1: it applied to you as well as to your buddies. 68 00:04:20,520 --> 00:04:24,160 Speaker 1: They stayed, you left. We just got word that the 69 00:04:24,440 --> 00:04:27,160 Speaker 1: CEO of Chevron is planning to step down. That's according 70 00:04:27,200 --> 00:04:29,200 Speaker 1: to the Wall Street Journal. Have more on that in 71 00:04:29,320 --> 00:04:33,400 Speaker 1: a moment, uh rachel Um. On this question of having 72 00:04:33,440 --> 00:04:36,320 Speaker 1: a judge decide the case rather than injury, Um, well, 73 00:04:36,360 --> 00:04:38,240 Speaker 1: we'll have more time to talk about it, but in 74 00:04:38,440 --> 00:04:40,840 Speaker 1: about four or five seconds or so, what do you 75 00:04:40,880 --> 00:04:45,400 Speaker 1: think the calculations were going into the defense's decision there? Well, 76 00:04:45,440 --> 00:04:48,640 Speaker 1: I'm sure there were numerous factors, but it would appear 77 00:04:48,720 --> 00:04:50,920 Speaker 1: from the outside looking in that there are two major 78 00:04:51,080 --> 00:04:53,760 Speaker 1: affects to that decision. It was and it was Sergeant 79 00:04:53,760 --> 00:04:57,479 Speaker 1: Bergdolf's decision, um, which the law requires that he he make, 80 00:04:57,640 --> 00:05:00,320 Speaker 1: and not, as defend Hondful make for him. I'm sure 81 00:05:00,320 --> 00:05:04,599 Speaker 1: they advised him that both the Defense Council argued against 82 00:05:04,680 --> 00:05:09,440 Speaker 1: allowing um harm, aggravation UM evidence and aggravation of service 83 00:05:09,560 --> 00:05:12,960 Speaker 1: members injuries, and the judge overruled that motion and said 84 00:05:12,960 --> 00:05:16,280 Speaker 1: he would admit that evidence in aggravation UM in a 85 00:05:16,400 --> 00:05:20,720 Speaker 1: sentencing proceeding. And second factor, which we can talk about 86 00:05:20,720 --> 00:05:23,320 Speaker 1: after the break, would be that they were denied their 87 00:05:23,360 --> 00:05:29,440 Speaker 1: ability to to fully probe the potential jurors uh disposite 88 00:05:29,480 --> 00:05:33,080 Speaker 1: predisposition to fight a guilt and sentencing because they really 89 00:05:33,120 --> 00:05:36,159 Speaker 1: wanted to ask all these service members had voted for Trump. 90 00:05:36,680 --> 00:05:40,720 Speaker 1: Army Sergeant boburg Doll faces charges of desertion and misbehavior 91 00:05:40,839 --> 00:05:44,120 Speaker 1: before the enemy at its trial schedule for late October. 92 00:05:44,160 --> 00:05:48,000 Speaker 1: At Fort Bragg, Burdell was captured by Taliban and Afghanistan 93 00:05:48,200 --> 00:05:51,479 Speaker 1: and swapped for five Taliban prisoners. He was a favorite 94 00:05:51,600 --> 00:05:55,760 Speaker 1: target of then candidate Trump during the campaign. Burdell's attorneys 95 00:05:55,839 --> 00:05:58,480 Speaker 1: tried and failed to get the charges against him dropped 96 00:05:58,520 --> 00:06:01,200 Speaker 1: earlier this year, are doing he couldn't get a fair 97 00:06:01,279 --> 00:06:04,760 Speaker 1: jury trail because of Trump's negative comments. They played a 98 00:06:04,880 --> 00:06:08,320 Speaker 1: video of all sixty times Trump called Burgdal a trader. 99 00:06:09,480 --> 00:06:12,920 Speaker 1: We get burg Doll, who was a trader and they 100 00:06:13,040 --> 00:06:16,320 Speaker 1: get five of the greatest killers that they've wanted for 101 00:06:16,440 --> 00:06:20,240 Speaker 1: eight years. The judge also refused to allow defense attorneys 102 00:06:20,279 --> 00:06:23,320 Speaker 1: to ask jurors if they voted for Trump. We've been 103 00:06:23,320 --> 00:06:27,279 Speaker 1: talking with Lawrence Morris, general counsel at Catholic University, retired 104 00:06:27,480 --> 00:06:31,760 Speaker 1: Army colonel and former judge advocate. And Rachel Van Landingham, 105 00:06:31,839 --> 00:06:34,760 Speaker 1: a professor at Southwestern Law School, a retired Air Force 106 00:06:34,800 --> 00:06:38,680 Speaker 1: lieutenant colonel and former judge advocate Larry If you were 107 00:06:38,720 --> 00:06:42,760 Speaker 1: the defense attorneys in this case, would Trump's statements concern 108 00:06:42,880 --> 00:06:46,560 Speaker 1: you a sure? Try to make them a matter of 109 00:06:46,760 --> 00:06:49,520 Speaker 1: concern for the court if I were in that position. 110 00:06:50,040 --> 00:06:54,400 Speaker 1: You know, the the unique factor in military justice is 111 00:06:54,600 --> 00:06:58,000 Speaker 1: the concern about you know, what the military calls unlawful 112 00:06:58,040 --> 00:07:02,320 Speaker 1: command influence the idea that the commander is hovering over 113 00:07:02,480 --> 00:07:07,840 Speaker 1: the courtroom and robbing the system and the jury in 114 00:07:07,960 --> 00:07:12,040 Speaker 1: particular of its independence. And because the commander in chief 115 00:07:12,200 --> 00:07:15,440 Speaker 1: is the ultimate commander, the argument as a defense counsel 116 00:07:15,520 --> 00:07:19,360 Speaker 1: would be, the president made all the statements, and that 117 00:07:19,840 --> 00:07:22,560 Speaker 1: wats its way all the way down to the juror 118 00:07:22,680 --> 00:07:25,560 Speaker 1: who is going to vote in this case. Therefore, he 119 00:07:25,720 --> 00:07:28,720 Speaker 1: can't really be independent. Because he'd be voting the way 120 00:07:29,120 --> 00:07:32,000 Speaker 1: the boss wants not. The flip of that, of course, 121 00:07:32,160 --> 00:07:35,000 Speaker 1: is I think you'd expect the argument the government would make, 122 00:07:35,440 --> 00:07:38,800 Speaker 1: which is in a way that the higher the actor 123 00:07:38,880 --> 00:07:42,200 Speaker 1: in the command influence situation, the less likely it's really 124 00:07:42,240 --> 00:07:44,200 Speaker 1: to matter to a jury. In other words, a jury 125 00:07:44,280 --> 00:07:46,040 Speaker 1: is not really going to worry about what the president 126 00:07:46,160 --> 00:07:48,760 Speaker 1: might have said, especially when he was just a candidate. 127 00:07:49,440 --> 00:07:51,560 Speaker 1: But the influence is more likely to come from a 128 00:07:51,640 --> 00:07:54,080 Speaker 1: commander that he sees every day or that really has 129 00:07:54,120 --> 00:07:57,560 Speaker 1: an ability to influence his career. Still, the argument on 130 00:07:57,680 --> 00:08:01,400 Speaker 1: the defense side would be that man these arguments, he's 131 00:08:01,480 --> 00:08:04,800 Speaker 1: now the boss that chills this system and you need 132 00:08:04,880 --> 00:08:08,440 Speaker 1: to take some kind of corrective action because of it. Rachel. 133 00:08:08,520 --> 00:08:10,760 Speaker 1: The defense lawyers, as I understand it, did make some 134 00:08:10,840 --> 00:08:14,000 Speaker 1: efforts to find out what the prospective jurors thought about 135 00:08:14,120 --> 00:08:16,360 Speaker 1: Donald Trump. Tell me a little bit about that, and 136 00:08:16,440 --> 00:08:19,840 Speaker 1: in particular the judge's decision about whether the jurors had 137 00:08:19,880 --> 00:08:23,360 Speaker 1: to say whether they voted for Donald Trump. Sure, the 138 00:08:24,000 --> 00:08:26,600 Speaker 1: defense counsel, as a standard in a in a court 139 00:08:26,680 --> 00:08:29,280 Speaker 1: martial um with panel members, which is what the military 140 00:08:29,360 --> 00:08:33,360 Speaker 1: justice system calls its jurors submitted a draft panel questionnaire, 141 00:08:33,520 --> 00:08:37,240 Speaker 1: and the questionnaire that Sergeant Burgdal's defense council submitted to 142 00:08:37,280 --> 00:08:40,440 Speaker 1: the judge had forty two questions, and quite a few 143 00:08:40,480 --> 00:08:43,160 Speaker 1: of these questions did deal with whether or not the 144 00:08:43,679 --> 00:08:47,600 Speaker 1: perspective Jerman juror was familiar with President Trump's campaign trail 145 00:08:47,679 --> 00:08:51,440 Speaker 1: statements about Sergeant Burgdal, what what's what's their understanding about 146 00:08:51,440 --> 00:08:55,120 Speaker 1: President's Trump's opinion, whether they attended rallies for President Trump, 147 00:08:55,160 --> 00:08:58,840 Speaker 1: And then the penultimate question, which was did you vote 148 00:08:58,880 --> 00:09:01,839 Speaker 1: for President Trump or not? In the military judge declined 149 00:09:01,880 --> 00:09:05,920 Speaker 1: to allow the Defense counsel to ask that particular question. 150 00:09:06,000 --> 00:09:08,599 Speaker 1: And so there's two competing aspects to that. One. The 151 00:09:08,679 --> 00:09:12,719 Speaker 1: military judge was appropriately trying to prevent service members um 152 00:09:13,040 --> 00:09:15,840 Speaker 1: decision to vote for a particular president from the litmus 153 00:09:15,920 --> 00:09:19,120 Speaker 1: test regarding their predisposition either to guild or to a 154 00:09:19,200 --> 00:09:22,319 Speaker 1: particular sentence. On the other hand, the defense counsel, in 155 00:09:22,600 --> 00:09:26,800 Speaker 1: light of these really sui generous, very unique, unheard of, 156 00:09:28,160 --> 00:09:32,760 Speaker 1: inflammatory prejudicial statements by someone who is now the commander 157 00:09:32,840 --> 00:09:35,880 Speaker 1: in chief, Defense council is trying to determine whether or 158 00:09:35,960 --> 00:09:40,720 Speaker 1: not those potential jurors could make a fair could fairly 159 00:09:40,760 --> 00:09:42,839 Speaker 1: weigh the facts and evidence and come to a fair 160 00:09:42,960 --> 00:09:45,360 Speaker 1: decision on guilt of all of a fair and appropriate 161 00:09:45,440 --> 00:09:48,640 Speaker 1: decision as to sentencing. And and that's in the context 162 00:09:48,720 --> 00:09:51,240 Speaker 1: that Larry just talked about the contact. This is military 163 00:09:51,360 --> 00:09:54,640 Speaker 1: justice system. Those panamamas are all sworn to protect and 164 00:09:54,760 --> 00:09:58,920 Speaker 1: defend the Constitution, but also to obey the orders of 165 00:09:59,000 --> 00:10:02,520 Speaker 1: those above them, and that the ultimate individual issuing their 166 00:10:02,600 --> 00:10:05,520 Speaker 1: orders is the president. So knowing that what the president says, 167 00:10:05,720 --> 00:10:08,559 Speaker 1: even though there is that attenuation Larry mentioned, but what 168 00:10:08,640 --> 00:10:11,959 Speaker 1: the president says matters, and it matters in particular if 169 00:10:11,960 --> 00:10:15,160 Speaker 1: you indicated that you actually relate, you've supported him perhaps 170 00:10:15,240 --> 00:10:17,400 Speaker 1: at the at the ballot box and sold. Those are 171 00:10:17,440 --> 00:10:20,880 Speaker 1: the two competing I think interests on either side. Larry, 172 00:10:21,600 --> 00:10:25,040 Speaker 1: what's your opinion of this decision to have the case 173 00:10:25,320 --> 00:10:29,880 Speaker 1: decided by a judge instead of having several jurors there 174 00:10:29,960 --> 00:10:34,280 Speaker 1: and maybe you can get some differences of opinion. It 175 00:10:34,520 --> 00:10:38,960 Speaker 1: is uh, it is one more reflection of the military's 176 00:10:39,040 --> 00:10:43,520 Speaker 1: concern with command influence that you even have this choice available, 177 00:10:43,640 --> 00:10:46,400 Speaker 1: And it's very rare in the civilian world that you 178 00:10:46,480 --> 00:10:48,800 Speaker 1: get to choose your forum, that you get to choose 179 00:10:48,800 --> 00:10:52,760 Speaker 1: whether to go judge alone or jury. And the other 180 00:10:52,880 --> 00:10:55,319 Speaker 1: factory that goes with this that makes the whole package 181 00:10:55,440 --> 00:10:58,679 Speaker 1: really unusual is that in the military, whoever is the 182 00:10:58,800 --> 00:11:02,640 Speaker 1: fact finder is also the sentencing authority. So if you 183 00:11:02,800 --> 00:11:05,959 Speaker 1: take the judge on findings, then you have the judge 184 00:11:06,000 --> 00:11:08,959 Speaker 1: for sentencing as well. You know, there's a real kind 185 00:11:09,000 --> 00:11:13,160 Speaker 1: of rough and imperfect bit of conventional wisdom uh in 186 00:11:13,280 --> 00:11:16,640 Speaker 1: the military and the defense community in particular, that in general, 187 00:11:16,760 --> 00:11:19,679 Speaker 1: and these are really broad, but in general, juries are 188 00:11:19,720 --> 00:11:22,640 Speaker 1: better for findings that you know, they're more amenable to 189 00:11:22,960 --> 00:11:26,280 Speaker 1: kind of a gut sense of justice, whereas judges will 190 00:11:26,320 --> 00:11:28,400 Speaker 1: just work their way through the elements of a crime. 191 00:11:29,000 --> 00:11:31,800 Speaker 1: And while juries are better for findings, the thought is 192 00:11:31,840 --> 00:11:35,839 Speaker 1: that judges in general are better for sentencing uh, in 193 00:11:36,040 --> 00:11:38,959 Speaker 1: that the same kind of gut sense of justice that 194 00:11:39,120 --> 00:11:42,240 Speaker 1: might have helped on findings could go against you one 195 00:11:42,320 --> 00:11:45,400 Speaker 1: sentencing if a jury designs to go against you. Further 196 00:11:45,480 --> 00:11:48,760 Speaker 1: complicator is there are no sentencing guidelines in the military, 197 00:11:49,160 --> 00:11:52,319 Speaker 1: so in this case, his his maximum punishment will be 198 00:11:52,480 --> 00:11:56,120 Speaker 1: life in prison. So you have a as a defense counsel, 199 00:11:56,200 --> 00:12:00,079 Speaker 1: you're balancing all those factors, the potential moderating impact of 200 00:12:00,160 --> 00:12:03,559 Speaker 1: a judge if you get to the sentencing phase, but 201 00:12:03,800 --> 00:12:06,960 Speaker 1: the desire to be able to work a jury, uh 202 00:12:07,280 --> 00:12:10,640 Speaker 1: during the during the finding phase. To my expectation is 203 00:12:10,720 --> 00:12:12,839 Speaker 1: that they had all of those discussions in trying to 204 00:12:13,000 --> 00:12:16,839 Speaker 1: gauge what is best. We'll have to leave it at that, Larry, 205 00:12:16,920 --> 00:12:19,000 Speaker 1: but we will have you back on both of you 206 00:12:19,120 --> 00:12:20,839 Speaker 1: to talk more about this case as it goes on. 207 00:12:21,040 --> 00:12:25,559 Speaker 1: That's Lawrence Morris, general counsel at Catholic University, and Rachel 208 00:12:25,840 --> 00:12:28,560 Speaker 1: Van Landingham, a professor at Southwestern Law School.