The Federal Practice Group Founding Attorney Eric Montalvo recently appeared on Federal News Radio’s ‘Legal Loop’ to discuss recent developments in the Bowe Bergdahl case. Bergdahl, who has become the centerpiece in the new season of the popular podcast Serial, has been arraigned for desertion and misbehavior before the enemy. During the segment, Montalvo comments on the case being handled via a general court martial – rather than the lower-level tribunal previously recommended – and how Bergdahl’s recent actions may have sparked the development of the case.
According to Montalvo, the venue in which military cases are heard is determined by fact specific situations in each case and that ultimately, “the facts drive the forum determination.” The fact that the Army made the decision to try the matter in a general court martial, not a special court martial, speaks to the seriousness of the nature of the charges, and exposes Bergdahl to a life sentence. As Montalvo notes, however, Bergdahl is unlikely to receive a life sentence.
Another interesting element Montalvo comments on is the latest season of Serial, in which Bergdahl claims that there were dangerous leadership failures and that his ‘desertion’ was the only way to bring attention to it. As Montalvo points to the possible connection between the charging decision and Bergdahl’s speaking out on the podcast, he cites that Bergdahl’s statements may very well remove all doubt from the mens rea element of the case, which focuses on his state of mind and thought process of an individual during the time of the alleged offense. In his statements on Serial, Bergdahl explicitly reveals that he knew what he was doing, and he understood at that time he would probably be in trouble. Those acknowledgments may have sparked the Army’s decision to pursue the case.
Montalvo, who regularly provides legal commentary on high-profile and complex cases, gives insight into the Bergdahl matter as a military prosecutor and defense attorney with over 20 years of experience. Learn more about Eric Montalvohere.