Why "no comment" can be a good answer

[ShAArk92]

What if the law says you should consider (or "blame" as you call it) the acts of someone not involved in the court?

then we don't have law.

I am reminded of another CINC who addressed a perceived politically correct incident.

Remember the SS agent at BWI traveling on AA to DFW for 43?

W said he'd "be mighty hot" if the reason for his SS agent's removal was prejudice.

Do you think that was proper?

BTW ... when it was revealed the guy was being a complete ... well ... he was so far beyond any scope of proper behavior for anyone, let alone someone sworn to take a bullet for a president ...

Did W make an equally public apology on behalf of the SS and this agent who should have been issuing parking tickets in Nome after that???

Talk about UCI!

So ... it seems the outrage is specific to addressing the politically correct target of the day ... perhaps "no comment" would have been the best course of action ... but is that materially different from "no change?" Does anyone really believe Trump would have changed his mind on this perpetrator in this case???

The punishment was incredibly weak and the "rationale" (if you can use a conjugated form of REASON) was pitiful at best.

 

[NJlonghorn]

Under the Fifth Amendment, a criminal can’t be deprived of life, liberty, or property without “due process of law”. The most fundamental aspect of due process is a fair, unbiased trial. Without that, no conviction can stand. This is true even if the defendant is guilty as sin, which we all agree is the case here.

Would you find the argument more persuasive if I told you that the right to due process was in the Second Amendment? You seem to like that one more than the Fifth Amendment.

 

[Mr. Deez]

then we don't have law.

Why not? Because you don't like the outcome in this case? Lawmakers have the right to decide what courts are supposed to consider in making rulings, and yes, they can write laws telling the courts to consider things that aren't directly related to the incident in question. The job of the judges is to follow those laws not to set them aside arbitrarily to force a desired result. If you don't like the result, you should ***** to the lawmakers, not the judge.

I am reminded of another CINC who addressed a perceived politically correct incident.

Remember the SS agent at BWI traveling on AA to DFW for 43?

W said he'd "be mighty hot" if the reason for his SS agent's removal was prejudice.

Do you think that was proper?

BTW ... when it was revealed the guy was being a complete ... well ... he was so far beyond any scope of proper behavior for anyone, let alone someone sworn to take a bullet for a president ...

Did W make an equally public apology on behalf of the SS and this agent who should have been issuing parking tickets in Nome after that???

Talk about UCI!

Actually I don't remember this incident, but I'll rely on your characterization of it. First, the secret service is a civilian law enforcement agency. UCI is doctrine of military law (hence the M in UCMJ). Second, an adverse employment action against a federal civilian employee is a civil matter, not a criminal matter. That makes a very big difference. Third, UCI is generally a matter raised by the accused (and probably enacted to protect the due process rights of the accused), so speaking out on behalf of lenience for the accused is not comparable to speaking out in favor of harshness. Fourth, calling for someone not to be removed because of prejudice is calling for the law to be followed and no threat to the rights of the accused. Calling someone a traitor and calling for his execution by means that would very clearly be unconstitutional before any evidence has been heard is prejudicial to the rights of the accused.

 

[OUBubba]

I listened to the Serial podcast on the Bergdal story. It was interesting. I think mitigating factors on his sentencing (that I've read nothing about in the last year or two) would be that 1. The military screening process should have kept him out of the service as he was apparently not mentally stable to begin with - smart but not prepared for that world. 2. He served some of the harshest treatment of any living captive while in captivity.

Call me crazy to think that the military justice system doesn't give two poops about what Obama might say or what DJT tweets.

 

[ShAArk92]

Would you find the argument more persuasive if I told you that the right to due process was in the Second Amendment?

noted ... firebomb chunker.

I endorse ALL in the bill of rights. I also endorse JUSTICE. I'm not going to repeat myself, but I will add (though I don't think it's relevant to the UCMJ processes) ... fair trial regarding jury nullification seems to be a hot topic particularly among officers of the court as it's apparently viewed as devaluing the officers authority.

My favorite example is of the sheriff deputy who errs in obtaining evidence of a homicide. The defendant is guilty as the day is long, but the jury should be willing/able to censure the sheriff while STILL rendering justice rather than having the case tossed due to an administrative/process error.

Like I said, doesn't appear this is the case here, but relevant only in the "blue line" of court officers ... and the defense of this JAG seems to follow.

 

[ShAArk92]

If you don't like the result, you should ***** to the lawmakers, not the judge.

OK.

So you're good with the sentence then. Justice served. noted.

 

[ShAArk92]

Call me crazy to think that the military justice system doesn't give two poops about what Obama might say or what DJT tweets.

This is precisely my point ... plus or minus a poop!

If any system of Justice is to be upheld with integrity, it has to be the one whereby force is available to be abused ... as in ... military coup of the civilian government.

If sentencing of an admitted deserter and of traitorous acts renders this weak sentence ... and the justification is due to a CINC statement ...

Then we are farther down the road to anarchy than I thought. Something is rotten in the State of Denmark here

 

[OUBubba]

This is precisely my point ... plus or minus a poop!

If any system of Justice is to be upheld with integrity, it has to be the one whereby force is available to be abused ... as in ... military coup of the civilian government.

If sentencing of an admitted deserter and of traitorous acts renders this weak sentence ... and the justification is due to a CINC statement ...

Then we are farther down the road to anarchy than I thought. Something is rotten in the State of Denmark here

What makes you think that the judge is making some statement by his sentence? Again, I've not read anything on this thing recently. We don't have marching orders on this one from George Soros yet.

 

[ShAArk92]

Didn't the Col reference this in his remarks about the sentencing decision?

As Deez has echoed ... the UCI issue ... which really isn't ... but an excuse to point a finger at a guy who isn't necessarily politically correct.

 

[Mr. Deez]

OK.

So you're good with the sentence then. Justice served. noted.

Nope, not good with the sentence. Justice not served. Our difference in opinion is that I believe in a judiciary that is bound by the written law even if I disagree with the result.

 

[ShAArk92]

Justice not served.

ok, thanks. Then the process is flawed, isn't it?

The guy responsible for executing that process evidently made a decision based upon a "stretch" at best. If he was out to serve justice, couldn't he have done so?

 

[Mr. Deez]

ok, thanks. Then the process is flawed, isn't it?

The process isn't flawed. The CiC is flawed. He screwed up just as Obama screwed up when he mouthed off about the sexual assault case a few years ago.

I have no problem with having a UCI doctrine. It serves an extremely important purpose.

The guy responsible for executing that process evidently made a decision based upon a "stretch" at best. If he was out to serve justice, couldn't he have done so?

No, he couldn't. He's bound by his oath and legal and judicial ethics. Furthermore, his decision is subject to appellate review.

 

[ShAArk92]

OK ... but this seems to be another example similar to the jury nullification .. .except it’s “judge nullification?”

POTUS shouldn’t have said “no change” ... I can agree he should have said “no comment” ... but seriously ... that’s going to affect justice served?

Seems that’s the definition of flawed process. Is the inverse of “no one person/group”

 

[NJlonghorn]

OK ... but this seems to be another example similar to the jury nullification .. .except it’s “judge nullification?”

The judge didn't nullify anything. He applied the law. If the judge had nullified the law, a higher court would have been able to step in and fix the error.

Only a jury can nullify the law. That is because once a jury says the defendant is innocent, there can't be a second trial. In short, jury nullification is not so much a legal doctrine as it is a consequence of the double-jeopardy clause in the Constitution.

POTUS shouldn’t have said “no change” ... I can agree he should have said “no comment”

On that we can agree.

but seriously ... that’s going to affect justice served?

Yes it is going to affect justice served, and it should. No matter how guilty, Bergdahl is entitled to a fair trial. In the eyes of the law, that's more important than whether he committed the crime. If he doesn't get a fair trial, he walks.

Seems that’s the definition of flawed process.

It's flawed if you value the conviction more than you value the constitution. I don't.

Is the inverse of “no one person/group”

Can you clarify what you mean by this? I'm stumped.

 

[NJlonghorn]

By the way, something that isn't being talked about in the mainstream media but that I've heard discussed in legal circles is the fact that Bergdahl is also entitled to a fair appeal. President Trump's post-sentencing comment -- "The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military." -- constitutes Undue Command Influence into the appeal. This strengthens my belief that Bergdahl's conviction will get overturned, and he will ultimately get an honorable discharge.

 

[ShAArk92]

The judge didn't nullify anything

I’ve got my terms backwards ... sorry. Obviously I’m not ready to apply my legal interpretation of FARs to the rest of the CFR ...

When judges vacate a jury’s decision ...

Seems to me this is similar to what is being said as POTUS, by not saying “no comment,” has put upon this JAG ...

But rather than honoring the jury’s censure of an LEO/office for administrative error but STILL rendering justice ... this judge, while he could have noted the failure of POTUS, still could have rendered a proper sentence ... and didn’t.

“The inverse” is a reference to our system of checks/balances. This JAG evidently allowed one person to “take away” his ability/authority to render an appropriate sentence.

 

[ShAArk92]

constitutes Undue Command Influence into the appeal.

This still presumes the controlling authority cannot adjudicate objectively ... the only way I can see that not happening is if CINC can adversely affect their personal career. I don’t think that’s possible without a LOT of collusion in the Flag officer ranks, which is clearly illegal in both the UCMJ AND CFR.

 

[ShAArk92]

Bergdahl's conviction will get overturned, and he will ultimately get an honorable discharge.

Maybe so ... but theses high visibility cases are also necessary to complete.

Remember the Baltimore cops? How much more were they subject to a prejudiced proceeding than by a guy who clearly violated UCMJ?

... which doesn’t follow CFR in just trial, by the way. Military Justice is more efficient, if not always more correct.

 

[NJlonghorn]

FARs to the rest of the CFR

I have no idea what you are talking about. I'm aware of several things CFR can mean (Code of Federal Regulations, Council on Foreign Relations, and Campaign Finance Reform come to mind), and one for FAR (Floor Area Ratio). None seem relevant here.

 

[Mr. Deez]

one for FAR (Floor Area Ratio). None seem relevant here.

Federal Acquisition Regulation - and not any more relevant than a Floor Area Ratio.

 

[ShAArk92]

FAR

Federal aviation Regulations.

 

[Mr. Deez]

Remember the Baltimore cops? How much more were they subject to a prejudiced proceeding than by a guy who clearly violated UCMJ?

Do keep in mind that the Baltimore cops are also entitled to a fair proceeding as Bergdahl was. The jurors would be thoroughly examined about what pretrial publicity and commentary they've heard and what opinions they've formed and subject to being stricken. In addition, if there's extensive media coverage during the case, the jury can be sequestered. And the remedy for failing to respect those cops' rights would be the reversal of any conviction.