By: Robert (Bob) Bianchi, Esq.
I appeared on Fox News Happening Now with host Jon Scott and co-guest Lis Wiehl to discuss the developments of Bowe Bergdahl’s desertion case.
A court recently ordered that the prosecution turn over possibly hundreds of thousands of pages of information on the case that was considered by the government as “classified” information. In a nutshell, the judge found that the defendant (Bergdahl) has the right to this information to aid his criminal defense attorneys to prepare a defense.
The court reasoned that if the government objects due to confidentially, or national security reasons, that they must specify that to the court and make a showing as to their position as to why each document they desire to withhold should not be released. However, it is suspected that the government will be forced to release hundreds of thousands of documents due to this court ruling. And, the release of many documents to the criminal defense attorneys is expected to support Bergdahl’s defense.
More interesting, however, is that the criminal defense attorneys are now alleging that presidential candidate Donald Trump has made repeated, incendiary comments about Bergdahl and that he has poisoned any jury pool, thereby making the defendant’s ability to receive a fair trial impossible.
Also, since the trial will occur after the presidential election, it is suggested that should Mr. Trump win the presidency that the prosecution will be unduly influenced by Mr. Trump, they allege, who is so biased that he will influence prosecutors in the prosecution of the case.
It should be noted that the Bergdahl case is rampant with misinformation spewed by the media, such as that people were killed and/or were injured while looking for him, which has been proven a falsehood. It is also true that the media rarely reports that investigators recommended no general discharge be sought, that no jail time be given, and they concluded that Bergdahl did not commit the offenses he is now charged with. In truth, we now find out that a singular General took the unusual step of disregarding the extensive investigation and the recommendation of the investigators, and singularly decided to have Bergdahl charged with these crimes for reasons that no one quite yet understands. It is likely the released documents will show a lot of politics involved in reversing the investigator’s conclusions and recommendations, but as of now, that is mere speculation.
Some of the inaccurate media reports to date, however, has led many to believe that Bergdahl was an enemy sympathizer when in truth from the record we now know publicly, he was a prisoner that had a mental breakdown before being captured and who was thereafter tortured by the enemy for 5 years.
That said, I find these assertions as it relates to Mr. Trump to be meritless.
High publicity cases occur all the time and commentary is often harsh against a defendant well before meaningful facts are gathered. This is just an unfortunate fact of life to a criminal trial attorney. There are judicial mechanisms, however, to ensure the jurors are fair and will only base their decision on the facts and law presented at the trial and not from any other source, such as the media. In my experience as a former head NJ county prosecutor and now NJ criminal defense attorney who has tried many high-profile cases, jurors’ take their oaths seriously and comply with the court’s instructions to base their decisions on the facts and law presented in court. Hence, the fact that Mr. Trump (and many others) have expressed harsh critique of Bergdahl means nothing in relation to his ability to receive a fair trial.
Mr. Trump is a political candidate running for office and the Bergdahl case is clearly fair game in advancing his candidacy- – as it is for any other candidate who wishes to express an opposing viewpoint.
Prosecutors are independent judicial officers, however, and they tend to go slowly before making assertions and try to gather and vet all of the facts of a case before jumping to conclusions. Hence, they operate, and their roles, are handled much differently than are the roles politicians, public and media, who desire immediate, and hence oftentimes, inaccurate and incomplete data on a case. I have myself tried cases where the media and public opinion is so filled with misinformation that it is completely opposite of the actual evidence of the case. It is really an amazing thing to watch.
In theory, prosecutors are supposed to be left alone and not mix politics into prosecutions. I admit, there are far too many instances recently of politicians (both republican and democrat) involving themselves in high profile criminal cases at an alarming rate, that I feel steps over the line of propriety in their attempts to use their elected positions to influence the outcomes of criminal trials. This needs to stop for sure.
But, Mr. Trump’s comments do not do this, as he is not an elected official and has no ability to officially influence prosecutors and/or judges. So, his comments (or those of others) are fair game in the political arena, especially in a case of this nature.
And, there is no suggestion, facts, and/or evidence whatsoever to suggest that if Mr. Trump were elected to the presidency that he would interfere with the judicial process at all. So, while a politician may very well have strong feelings and opinions about a case when running for office, this DOES NOT mean that they will violate their obligation to ensure the defendant receive a fair trial, in the event, they are elected.
Many times, high-level politicians elected to office will create a “Wall” in a case. This means that they make clear to all decision makers, prosecutors, etc…that they are not to be involved in, or have any involvement with the case as it progresses. Essentially, they are cut out of the process. This is to ensure there is not even the “appearance of impropriety” to suggest that they are influencing the outcome of a judicial matter. It happens all the time and works.
Now, there will be some that say “yeah, right,” this will never happen. Well, maybe so, but at least we know it should happen, and used to happen all the time. And, we can only hope that our elected officials now, and to be, will stop using their positions to influence outcomes of trials and allow the criminal justice system to proceed unimpeded by politics and other extraneous factors that have no business interfering with the judicial process.
I am hoping we can again come to a day when elected officials leave prosecutors and judges alone to do their jobs, without influencing, cajoling, or otherwise improperly getting involved in the process.
Politics is very different from the criminal justice system. Hopefully, those lines of distinction that have for years been a hallmark for a fair judicial process will once again be sharply drawn and no longer blurred.
© 2016 Robert (Bob) Bianchi, Esq.
NJ Supreme Court Certified Criminal Trial Attorney
Former head NJ County Prosecutor
NJ Criminal Defense Attorney
National TV Legal Analyst