The risky legal strategy behind NPR’s “Serial”

Celebrity, Crime, News

There’s a difference between the truth as you see it, and the truth as a jury sees it.

After listening to the first three podcasts in the second season of NPR’s podcast “Serial”—which includes a lengthy explanation, as told by U.S. Army Sergeant Bowe Bergdahl, of why he walked off his post in the heart of Taliban-controlled Afghanistan territory—my reaction as a military expert and lawyer was that his story will never work with a jury of his fellow soldiers. It’s a very convenient story, with self-serving explanations for his actions, like claiming he walked off his post only to alert his command of dangerous leadership failures that put him and his fellow soldiers at risk. Or, after he left his post, trying to gather intelligence on the Taliban as they lay IED’s.

But as I further contemplated the “why” behind the launch of this series, as Sergeant Bergdahl’s charges were being considered for a general court-martial (that court-martial is now in progress), I asked myself: would I ever allow my client to tell his story so nakedly, when his freedom is very much at stake?

Although we may never know the true reason why Bergdahl decided on this dramatic approach, I will explore some possible answers from the perspective of a military defense attorney. The whole series may be a flanking maneuver for the hearts and minds of the general public, not necessarily his military peers.

A storytelling tactic

As I listened to the comradery-building by the interviewer, Mark Boal, of “Zero Dark Thirty” and “Hurt Locker” fame, and the narration of Sarah Koenig with her carefully chosen, compassionate words to describe Bergdahl, it became clear that this initial stage of the series was designed to drive a sympathetic stake in the ground from which compassion in the general public could be rooted.

We see this narrative being constructed almost immediately in the first episode, as Bergdahl is chided by Mr. Boal for having a good sense of humor, but never showing it; in the explicit details of his torture; in the description of Bergdahl’s independent efforts in seeking intel on IED’s, Jason Bourne-style. Would his peers really believe he walked off his post in a fervent desire to expose the dangerous leadership he supposedly witnessed daily? What could his commanding officer be doing to him and his fellow soldiers that would compel one to walk into the teeth of the enemy?  Trying to create a DUSTWUN (short for “duty status – whereabouts unknown”)?  What soldier does such a thing?

Service members are trained on military rank and structure, and are intimately aware of the importance of good order and discipline in order to win battles and save lives. Furthermore, service members know there are obvious and appropriate channels that can be used when leadership failures must be reported.

So, why is Bergdahl telling his story to NPR, and why are his attorneys allowing it? Does any criminal defense attorney advise his/her client to tell their story to the media (and prosecutors) on the proverbial eve of trial? The stakes are, seemingly, far too high for Bergdahl and his attorneys not to have thought this through.  So what does he get out of it?

Answers start to arrive in the third podcast of the series, when we hear that Bergdahl—as described by Bergdahl—is not a deserter or a traitor, but a survivor, a captive, a prisoner of war. We hear of his abuse at the hands of his captors, we hear of him deftly providing no valuable intel to the interrogators, and we hear of his valiant efforts to escape. We hear Ms. Koenig declare Bergdahl not a Taliban-sympathizer, or a traitor, but a soldier who hated the Taliban.  This narrative does several things:

1) it provides a possible legal defense to the charge of misbehavior before the enemy;

2) it provides for extenuation and mitigation for the charge of desertion that cannot likely be impeached by other evidence (is the prosecution going to be able to call a Taliban warfighter as an impeachment witness?);

3) it engenders compassion from the listeners.

An interesting strategy. But the question still largely remains: why tell your story now while pending court martial? I’ll poke through more possible explanations in my next post.

The fourth broadcast of “Serial” in now online; look for more analysis of episodes from the series in future posts.

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