Friday, November 3, 2017

Bergdahl and the Judge…a slap in the face to American justice

Bergdahl and the Judge…a slap in the face to American justice
By Norman E. Hooben
Before I begin my commentary read the following editorial posted at the Daily Wire.
I want to say at the outset that this judge did not exercise good judgment in handling Bergdahl’s sentencing; he has prescribed codes that he must follow…and he did not!

OUTRAGEOUS: Deserter Bergdahl Gets NO PRISON TIME, Judge Cited Trump's Comments As 'Mitigation Evidence'
By Ben Shapiro @ The Daily Wire
On Friday, traitorous Sgt. Bowe Bergdahl, who left his post and wandered into Taliban territory, only to be taken prisoner and held for years, then exchanged for Taliban terrorists by President Obama, received no prison time. That freedom came despite the fact that Bergdahl’s desertion apparently led to the deaths of six Americans who went searching for him. The judge did give Bergdahl a dishonorable discharge, and reduced him to private while giving him a $10,000 fine. Bergdahl had already pled guilty to desertion and misbehavior before the enemy, and could have gone to prison for life.
The rationale for the sentence is unclear, but the judge in the case had commented on it previously: he had stated that he would take into account President Trump’s negative comments about Bergdahl when considering sentencing. Col. Jeffrey Nance stated, “I will consider the president’s comments as mitigation evidence as I arrive at an appropriate sentence.” According to The New York Times:

The judge rejected a request that he dismiss the case or cap the length of the sentence on the grounds that the president’s comments had precluded a fair hearing. The judge said he had not been influenced by the remarks and that the public’s confidence in the military justice system had not been undermined.

So instead of recusing himself, the judge did what the defense wanted and simply let Bergdahl off the hook.
The sentence is as repulsive as Obama’s decision to trade away top terrorists in exchange for a deserter. Americans lost their lives searching for a man who deliberately left his post; more Americans will lose their lives to the terrorists Obama released in order to return Bergdahl to the country. Now, Bergdahl will go free, with virtually no penalty. ~ Ben Shapiro
All too often when there is a disagreement with someone the opposition generally passes it off as, “That’s just your opinion.”  Well if this is my opinion it is also the opinion of the United States government…that same government that just tried a traitor to his country whom pleaded guilty to the charges.  Because my commentary centers around the Judge’s sentencing in this trial I would also like to point out that this judge violated the code of conduct by saying, ““I will consider the president’s comments as mitigation evidence as I arrive at an appropriate sentence.””  He also stated that he would take into account President Trump’s negative comments about Bergdahl when considering sentencing.
Now if you read below (Canon 2 B); “A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.  Anyone with rational thought would agree that Judge/Colonel Jeffrey Nance allowed political influence to misguide his decision making process.  His partiality in this case warranted him to recuse himself.  He should have weighed the penalties of the crime without being influenced by other’s comments. 
Judge Nance should have recused himself prior to sentencing due to his open hostility toward President Trump.  During the Obama administration a judge was vacated from the court due to being partial to the defendant, Major Hassan (the Fort Hood terrorist). 

See: Hasan v. Gross, 71 M.J. 416 (in the military context, the appearance of bias principle with respect to the recusal of a military judge is derived from RCM 902(a): “A military judge shall disqualify himself . . . in any proceeding in which that military judge’s impartiality might reasonably be questioned.”; the standard for identifying the appearance of bias is objective: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned).  ~ Norman E. Hooben
The following Canons (a body of binding rules, and standards) were excerpted from the Code of Conduct for United States Judges.  (There was no need to publish all the verbiage associated with each Canon…just the ones applicable to this trial.)

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities (A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
(C) Nondiscriminatory Membership. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.
Canon 2B.
Canon 2C.
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:
(A) Adjudicative Responsibilities.
(1) A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.
(2) A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings.
(3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.
(4) A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law. Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested. A judge may:
(a) initiate, permit, or consider ex parte communications as authorized by law;
(b) when circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication;
(c) obtain the written advice of a disinterested expert on the law, but only after giving advance notice to the parties of the person to be consulted and the subject matter of the advice and affording the parties reasonable opportunity to object and respond to the notice and to the advice received; or
(d) with the consent of the parties, confer separately with the parties and their counsel in an effort to mediate or settle pending matters.
(5) A judge should dispose promptly of the business of the court.
(6) A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.
(B) Administrative Responsibilities.
(1) A judge should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court personnel.
(2) A judge should not direct court personnel to engage in conduct on the judge’s behalf or as the judge’s representative when that conduct would contravene the Code if undertaken by the judge.
(3) A judge should exercise the power of appointment fairly and only on the basis of merit, avoiding unnecessary appointments, nepotism, and favoritism. A judge should not approve compensation of appointees beyond the fair value of services rendered.
(4) A judge with supervisory authority over other judges should take reasonable measures to ensure that they perform their duties timely and effectively.
(5) A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that a judge’s conduct contravened this Code or a lawyer violated applicable rules of professional conduct.
(C) Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned
Canon 3A (3).
Canon 3A (4).
Canon 3A (5).
Canon 3A (6).
Canon 3B (3).
Canon 3B (5).
Canon 3C.
Canon 3C (1) (c).
Canon 3C (1) (d) (ii).
Canon 4:   
Canon 4A
Canon 4A (4)
Canon 4A (5)
Canon 4B
Canon 4C.
Canon 4D (1), (2), and (3)
Canon 4D (5)
Canon 4E
Canon 4F
Canon 4H
Canon 5: A Judge Should Refrain from Political Activity


1. The act of mitigating, or lessening the force or intensity of something unpleasant, as wrath, pain, grief, or extreme circumstances:
2. The act of making a condition or consequence less severe:
The mitigation of a punishment.
3. The process of becoming milder, gentler, or less severe.
4. A mitigating circumstance, event, or consequence.