The Sept. 1 motion lays out how prosecutors plan to tie the injuries into arguments that Bergdahl is guilty of misbehavior before the enemy, a relatively rare charge that carries up to a life sentence. Bergdahl also faces a desertion charge in the case scheduled for a 2017 trial.
Bergdahl’s attorneys, meanwhile, filed a separate motion Wednesday arguing that the general overseeing the case has improperly communicated with prosecutors without the defense’s knowledge.
Prosecutors say that Mark Allen, then a National Guard sergeant first class, was part of a search mission about a week after Bergdahl disappeared from his post. Allen was shot in the head on July 8, 2009, and suffered traumatic brain injuries that leave him dependent on a wheelchair and unable to communicate, prosecutors say.
The filing also says that Spc. Jonathan Morita suffered broken bones and other hand and arm injuries when a rocket propelled grenade was fired at him. The RPG didn’t explode, and Morita survived.
Prosecutors write that the men’s injuries will help them show that Bergdahl endangered his comrades, one of the elements of the misbehavior before the enemy charge. They request the judge to allow them to use the evidence in their case.
“The best evidence of endangerment … remains the fact that service members were actually harmed during the crisis that the accused intentionally created,” the prosecutors wrote, adding that the search for Bergdahl was the only reason for the mission involving Allen and Morita.
Defense attorney Eugene Fidell declined to comment Wednesday on the prosecutors’ motion.
Earlier this year, defense attorneys argued against a separate effort by prosecutors to have Allen’s wife designated to serve as a representative for the wounded soldier during the case. Prosecutors say he’s unable to communicate.
“Allen’s injuries were directly caused by the Taliban, not by SGT Bergdahl,” defense attorneys wrote in January.
The judge overseeing the case declined to designate Allen’s wife as his representative in a July ruling. Col. Jeffery R. Nance noted then that “it has not been established nor may it be presumed that anyone is a direct victim of the accused’s alleged misconduct.”
A former military lawyer who teaches law at Florida International University, Eric Carpenter, said the prosecutors face a low threshold for showing that the soldiers’ injuries are relevant, but that it’s smart to resolve the matter before trial.
“This is a motion you file ahead of time so things go more smoothly at trial and you don’t have a bunch of objections,” he said in an interview.
Carpenter said defense attorneys may convince the judge to bar certain information, but evidence of the injuries should largely make it into the case.
A general who did a preliminary investigation of Bergdahl’s case has previously testified that he found no evidence that service members were killed searching for the soldier.
Bergdahl, who is from Hailey, Idaho, walked off his post in Afghanistan in 2009 and wound up a captive of the Taliban and its allies until 2014 when the Obama administration won his release by trading Guantanamo Bay detainees.
In the defense motion Wednesday, Bergdahl’s lawyers argued that prosecutors must provide further information on communications they have had with Gen. Robert B. Abrams, the four-star head of U.S. Army Forces Command who referred the case to a general court martial.
The defense motion argues that Abrams’ testimony about working with prosecutors on an affidavit for the case shows that he has had improper direct contact with the prosecution without informing the defense. The filing adds to their earlier arguments that Abrams faced improper conflicts and should be disqualified from his role overseeing the case.
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