Bergdahl Goes Free

[homersapien 11,357]

10 hours ago, NolaAuTiger said:

Yeah, that one.... awkward 

Typo.   I make them all the time.

[homersapien 11,357]

10 hours ago, NolaAuTiger said:

Oh good lord Homer. The JUDICIARY BRANCH conducts trials and sentences individuals. It's called separation of powers. 

They have the final say. They make their decision independent of influence, in the context you described, from another branch

 

Prosecuters are part of the Executive branch.  Otherwise you are correct. 

For Trump to make comments prior to the trial is no different that a justice making comments prior to a trial.  It serves to undermine our system of justice.

[homersapien 11,357]

10 hours ago, NolaAuTiger said:

I edited my post for clarity. Yes, the executive is involved to that extent. But the judiciary has ultimate authority over court proceedings. Not the executive branch. Homer's broad statement easily allows for distortion of Separation of Powers

My "broad" statement?   

That's BS.

[aujeff11 6,243]

3 minutes ago, homersapien said:

Typo.   I make them all the time.

Apparently you don’t know what a typo is either. But nice try, weasel. 

[NolaAuTiger 3,295]

12 hours ago, Bigbens42 said:

You underestimate the importance of the prosecution. They decide who to charge. They don't do so, a judge and/or jury never hear it to begin with. 

The president is the head of the US Administration. Those tasked with judging the case are increasingly hand selected by the President. The people that will prosecute are increasingly hand selected by the President. He strives to personally influence prosecution, e.g. trying to instruct the DOJ to pursue Clinton. By eroding the independence of the DOJ he is already undermining the due process protection the Constitution affords the accused.

More critical, Trump is President and therefore his word influences Americans. His call for this terrorist to die can easily be made the be basis for arguing that the accused cannot get a fair trial because the president has not only already convicted him, but sentenced him to DEATH.

And lastly, his tweet makes it very unlikely that the accused would be given a death sentence. The court may allow the case go ahead even though there are questions about due process, but capital punishment is far more difficult to sentence when the issue continues to hang over the case. The sentencing sort of becomes a "compromise" between the prosecutions points and the very important argument of the defense. Just like it probably was with Bergdahl.

Courts take the Constitutional protection of due process very seriously. Generally, IMHO, they seem to be the only branch remaining that is somewhat taking the Constitution seriously.

I don't disagree with you. But you also are familiar with the doctrine of justiciability that derives from Art. III, Sec. II are you not? Again, my point is that judges have the overall say - not just with sentencing, but getting into court in the first place. Through the entire process, the judge is offered a great deal of discretion. It is preposterous to assert that Trump's tweets would infiltrate the system to the extent the media would have people believe. 

 

More critical to the context of the conversation-when the MSM purports that Trump's tweets have immense impacts on the outcome of cases, people like Homer (who thought Trump was head of Legislative branch), deem it an absolute truth. The judiciary, and overall interaction between the branches of government - when it comes to our court system - is not nearly as elementary as MSM paints it to be.

[NolaAuTiger 3,295]

2 hours ago, homersapien said:

Prosecuters are part of the Executive branch.  Otherwise you are correct. 

For Trump to make comments prior to the trial is no different that a justice making comments prior to a trial.  It serves to undermine our system of justice.

Um, yes - it's VERY different. A judge violates legal ethics (Model Rules of Professional Conduct) when he does that... 

 

This, again, underscores my point. 

[Auburnfan91 1,407]

In the case of Chelsea Manning, Obama made comments in April 2011 saying that Manning broke the law.

Manning's trial didn't take place until June 2013

Quote

Though Manning has yet to stand trial, Mr. Obama asserted yesterday that he is guilty.

"If you're in the military, and -- I have to abide by certain classified information," Mr. Obama explained to a supporter. "If I was to release stuff, information that I'm not authorized to release, I'm breaking the law. We're a nation of laws. We don't individually make our own decisions about how the laws operate... He broke the law."

https://www.cbsnews.com/news/obama-says-bradley-manning-broke-the-law/

 

Obama's comments in 2011 about Manning breaking the law weren't justification by the judge in Manning's trial in 2013 to let her off the hook. Manning was still sentenced to 35 years in prison.

Why were Obama's comments in 2011 allowed and not considered to be influencing the outcome of Manning's trial, but now Trump's comments are being used as the justification for the judge's leniency on Bergdahl? 

Trump's comments about Bergdahl before the trial were inappropriate no doubt and against presidential protocol, but so were Obama's in 2011. It seems politically convenient to now start to give a higher significance to a President's comments when just 4 years earlier in 2013, the previous President's comments weren't considered an influencing factor in the trial of another former Army soldier.

[aujeff11 6,243]

6 hours ago, Auburnfan91 said:

In the case of Chelsea Manning, Obama made comments in April 2011 saying that Manning broke the law.

Manning's trial didn't take place until June 2013

https://www.cbsnews.com/news/obama-says-bradley-manning-broke-the-law/

 

Obama's comments in 2011 about Manning breaking the law weren't justification by the judge in Manning's trial in 2013 to let her off the hook. Manning was still sentenced to 35 years in prison.

Why were Obama's comments in 2011 allowed and not considered to be influencing the outcome of Manning's trial, but now Trump's comments are being used as the justification for the judge's leniency on Bergdahl? 

Trump's comments about Bergdahl before the trial were inappropriate no doubt and against presidential protocol, but so were Obama's in 2011. It seems politically convenient to now start to give a higher significance to a President's comments when just 4 years earlier in 2013, the previous President's comments weren't considered an influencing factor in the trial of another former Army soldier.

That’s a good question. Given the political context and the punishment he’s already endured from the enemy, I could undertstand if  we were talking about the death penalty but we are not. He needed some type of sentence to right the wrongs that he committed. A simple 5 year sentence would’ve sufficed. But I guess justice is another one of them vestiges of yesteryear.

If anything, he could’ve been sent a mental institution. What sane person would leave his fortified base to walk 19 miles in extremely hostile territory to another base just to talk to a different General because his wouldn’t listen (this screams mental issues by itself)? Enlisted NCOs are not even near or within the right pay grade to seek out Generals. There is a chain of command for a reason. 

[homersapien 11,357]

On 11/4/2017 at 11:53 AM, NolaAuTiger said:

Um, yes - it's VERY different. A judge violates legal ethics (Model Rules of Professional Conduct) when he does that... 

 

This, again, underscores my point. 

And this underscores mine:

Unlawful command influence or UCI is a legal concept within American military law. UCI occurs when a person bearing "the mantle of command authority"^[1] pressures—or even appears to pressure—military judicial proceedings. Military commanders typically exert significant control over their units, but under the Uniform Code of Military Justice (UCMJ) a commander must take a detached, quasi-judicial stance towards certain disciplinary proceedings such as a court-martial. If UCI has occurred, the results of a court-martial may be legally challenged and in some cases overturned.

 

Otherwise, I'll concede that a member of the judiciary making negative comments about a defendent prior to their trial is nominally worse than a member of the prosecution doing so. 

But either is unacceptable.

 

[aujeff11 6,243]

3 minutes ago, homersapien said:

Unlawful command influence or UCI is a legal concept within American military law. UCI occurs when a person bearing "the mantle of command authority"^[1] pressures—or even appears to pressure—military judicial proceedings. Military commanders typically exert significant control over their units, but under the Uniform Code of Military Justice (UCMJ) a commander must take a detached, quasi-judicial stance towards certain disciplinary proceedings such as a court-martial. If UCI has occurred, the results of a court-martial may be legally challenged and in some cases overturned.

This never happened and is completely irrelevant.

[AUDub 11,143]

1 hour ago, aujeff11 said:

This never happened and is completely irrelevant.

The judge said it did. 

http://abcnews.go.com/US/bowe-bergdahl-receive-jail-time-judge-rules/story?id=50907787

Even those comments were seen by Nance as "unlawful command influence," writing in his ruling, "The plain meaning of the president’s words to any reasonable hearer could be that in spite of knowing that he should not comment on the pending sentencing in this case, he wanted to make sure that everyone remembered what he really thinks should happen to the accused."

[aujeff11 6,243]

3 minutes ago, Bigbens42 said:

The judge said it did. 

http://abcnews.go.com/US/bowe-bergdahl-receive-jail-time-judge-rules/story?id=50907787

 

 

Was he even in office when he said those things about Bergdahl? Since when did the President become subject to UCMJ? Never. Completely and utterly ridiculous.

[AUDub 11,143]

23 minutes ago, aujeff11 said:

Was he even in office when he said those things about Bergdahl? 

He affirmed them in a presser a few weeks before Colonel Nance issued his ruling. 

23 minutes ago, aujeff11 said:

Since when did the President become subject to UCMJ? Never. Completely and utterly ridiculous.

He's not. He's a civilian. He is also the CiC and has command influence. This had some interesting implications. Here's the result. 

[aujeff11 6,243]

2 minutes ago, Bigbens42 said:

He affirmed them in a presser a few weeks before Colonel Nance issued his ruling. 

Quote

Link? Because the article isn’t giving away what Trump said while the CIC.

 

4 minutes ago, Bigbens42 said:

He's not. He's a civilian

Right. So what does UCI have to do with Trump other than title of CIC?

[AUDub 11,143]

13 minutes ago, aujeff11 said:

Link? Because the article isn’t giving away what Trump said while the CIC.

http://www.bostonherald.com/news/national/2017/10/military_judge_in_bergdahl_case_worries_about_trump_impact

Quote

But last week Trump addressed his past comments after being asked about them at a news conference. He replied that he couldn't say anything more about the case, "but I think people have heard my comments in the past." That, the defense said, shows he harbors the same views as commander in chief.

Prosecutors argued Trump's comments didn't reaffirm his campaign-trail criticism and were narrowly focused on answering a reporter.

But Nance said he was having a "hard time" with prosecutors' interpretation, noting public confidence in military courts was something he had to consider.

"The member of the public that we are interested in maintaining confidence in the military justice system ... is going to be influenced by context," he said.

Nance said his interpretation was that Trump was essentially saying: "I shouldn't comment on that, but I think everyone knows what I think on Bowe Bergdahl."

Further, a reasonable person would infer that a view that was vehemently expressed mere months ago, and was immortalized on the internet, and has not been directly refuted since, would still hold true.

Granted, a reasonable person wouldn't paint himself orange and run for president.

13 minutes ago, aujeff11 said:

Right. So what does UCI have to do with Trump other than title of CIC?

He can taint due process for the accused, like he did here. 

[aujeff11 6,243]

6 minutes ago, Bigbens42 said:

http://www.bostonherald.com/news/national/2017/10/military_judge_in_bergdahl_case_worries_about_trump_impact

 

 

So because his views prior to becoming CIC haven’t changed, he has still spoiled Bergdahl’s well-deserved sentence.  Regardless of the fact that as acting CIC he hasn’t said anything maliciously detrimental to the prosecutors case. That’s a bunch of hogwash.  That’s judicial activism and loose interpretation of the law at it’s finest.

[NolaAuTiger 3,295]

1 hour ago, Bigbens42 said:

http://www.bostonherald.com/news/national/2017/10/military_judge_in_bergdahl_case_worries_about_trump_impact

Further, a reasonable person would infer that a view that was vehemently expressed mere months ago, and was immortalized on the internet, and has not been directly refuted since, would still hold true.

Granted, a reasonable person wouldn't paint himself orange and run for president.

He can taint due process for the accused, like he did here. 

Wrong. Trump was not CIC when he said those things. Not obligated to refute comments made as a private citizen when said PC becomes POTUS

[NolaAuTiger 3,295]

1 hour ago, aujeff11 said:

So because his views prior to becoming CIC haven’t changed, he has still spoiled Bergdahl’s well-deserved sentence.  Regardless of the fact that as acting CIC he hasn’t said anything maliciously detrimental to the prosecutors case. That’s a bunch of hogwash.  That’s judicial activism and loose interpretation of the law at it’s finest.

correct

[AUDub 11,143]

1 hour ago, aujeff11 said:

So because his views prior to becoming CIC haven’t changed, he has still spoiled Bergdahl’s well-deserved sentence.  Regardless of the fact that as acting CIC he hasn’t said anything maliciously detrimental to the prosecutors case. That’s a bunch of hogwash.  That’s judicial activism and loose interpretation of the law at it’s finest.

Thing is, he has. This is why Trump had essentially shut up about it after he took office. And why originally, his comments were ignored by the proceedings, because they were said by candidate Trump, a private citizen.

What Colonel Nance said back in February:

Quote

No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial...

We have a man who eventually became President of the United States and Commander in Chief of all the armed forces making conclusive and disparaging comments, while campaigning for election, about a soldier facing potential court-martial. … The Court recognizes the problematic potential created by these facts.

Colonel Nance essentially recognized the comments as "disturbing and disappointing," but framed it as being campaign rhetoric, something by the candidate, and the fact that he wasn't in the Colonel's chain of command.

By labeling it rhetoric, Colonel Nance was saying, essentially, that he does not believe the sincerity of those statements. That they are inflammatory for the purposes of gaining ground in his campaign.

By re-affirming his comments while Commander in Chief, Trump damaged the argument Colonel Nance made back in February about why his comments were not applicable.

Do I personally think Colonel Nance would have been influenced? No. But here's the problem. Familiarize yourself with US v Johnson. Trump's statements met the threshold for a fair complaint from Bergdahl's defense. After that, the burden shifts to the government to disprove UCI. It was easy on the first go around. Colonel Nance is not influenced because the person who said it, when he said it, was not the president and in his chain of command. I can believe that compartmentalization, that he's saying that the words are rhetoric. Trump's affirmation destroyed that and handed Bergdahl's defense solid ground on which to appeal. 

[NolaAuTiger 3,295]

6 minutes ago, Bigbens42 said:

Thing is, he has. This is why Trump had essentially shut up about it after he took office. And why originally, his comments were ignored by the proceedings, because they were said by candidate Trump, a private citizen.

What Colonel Nance said back in February:

 

 

Ok so where is the jurisprudential precedent for Nance? 

 

US v. Johnson - whats the cite for this case? I want to read it.

[NolaAuTiger 3,295]

16 minutes ago, Bigbens42 said:

Thing is, he has. This is why Trump had essentially shut up about it after he took office. And why originally, his comments were ignored by the proceedings, because they were said by candidate Trump, a private citizen.

What Colonel Nance said back in February:

Colonel Nance essentially recognized the comments as "disturbing and disappointing," but framed it as being campaign rhetoric, something by the candidate, and the fact that he wasn't in the Colonel's chain of command.

By labeling it rhetoric, Colonel Nance was saying, essentially, that he does not believe the sincerity of those statements. That they are inflammatory for the purposes of gaining ground in his campaign.

By re-affirming his comments while Commander in Chief, Trump damaged the argument Colonel Nance made back in February about why his comments were not applicable.

Do I personally think Colonel Nance would have been influenced? No. But here's the problem. Familiarize yourself with US v Johnson. Trump's statements met the threshold for a fair complaint from Bergdahl's defense. After that, the burden shifts to the government to disprove UIC. It was easy on the first go around. Colonel Nance is not influenced because the person who said it, when he said it, was not the president and in his chain of command. I can believe that compartmentalization, that he's saying that the words are rhetoric. Trump's affirmation destroyed that and handed Bergdahl's defense solid ground on which to appeal. 

A case that involved Obama's comments about sexual assault WHILE HE WAS CIC. That case is factually distinguishable on its face and is not controlling in re Bergdahl.

[AUDub 11,143]

24 minutes ago, NolaAuTiger said:

Ok so where is the jurisprudential precedent for Nance? 

On what? The burden of proof for UCI? Here. 

Quote

The initial burden of raising evidence of command influence is on the defense. United States v. Ayala, 43 MJ 296, 299 (1995). However, "[p]roof of [command influence] in the air, so to speak, will not do." United States v. Allen, 33 MJ 209, 212 (CMA 1991). Once raised by evidence, "the appearance or existence of unlawful command influence creates a rebuttable presumption of prejudice." Wallace, supra.

 

[AUDub 11,143]

3 minutes ago, NolaAuTiger said:

A case that involved Obama's comments about sexual assault WHILE HE WAS CIC. That case is factually distinguishable on its face and is not controlling in re Bergdahl.

Wrong case. See prior post. 

[NolaAuTiger 3,295]

7 minutes ago, Bigbens42 said:

On what? The burden of proof for UIC? Here. 

 

BOP cases are irrelevant until we find case-precedent establishing comments made by one in capacity as a private citizen can be used in court should said citizen become-in the future-a commander for purposes of UCI. 

[AUDub 11,143]

6 minutes ago, NolaAuTiger said:

BOP cases are irrelevant until we find case-precedent establishing comments made by one in capacity as a private citizen can be used in court should said citizen become-in the future-a commander for purposes of UCI. 

Trump affirmed his statements after he became CiC. That's where he screwed up and UCI became a legitimate concern. Colonel Nance, going by his arguments, wrote them off as the rhetoric they were until they were affirmed once he had command influence.