Bergdahl Bombshell--Nance'd, not Vance'd

9/18/2020

A pleading in the Bergdahl case (filed today) reveals that the military judge, Jeffery Nance, was pursuing employment with the US Dept. of Justice while presiding over the case. Of course, the same conduct by military commission judge Vance Spath led the D.C. Circuit to vacate most of his rulings in the case of the alleged USS Cole bomber. In the words of Judge Tatel, Spath's conduct "cast an intolerable cloud of partiality" over the proceedings.

Here, Nance used the ruling in which he denied Bergdahl's first UCI motion as his writing sample in his job application. Thus, in his employment application to an executive branch agency headed by the President, Nance highlighted his writing ability by producing a motion in which he beat back a claim that the President had acted improperly.

Does an "intolerable cloud" equate with an "intolerable strain?"

us_v_bergdahl_19-0406ar_motion_to_supplement_record.pdf
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Here is the accompanying reply to the Govt's reconsideration opposition:

us_v_bergdahl_19-0406ar_reconsideration_reply.pdf
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Brenner Fissell

EIC

Poster

9/18/2020 03:55:09 pm

Tread lightly here. Jeffrey Nance is not a friend of UCI.

Brenner M. Fissell

9/19/2020 02:50:17 pm

Poster—This isn’t personal, and as I’m sure you know his reputation is irrelevant to the legal issue here. Perhaps you should explain your admonition to “tread lightly.”

Omar

9/19/2020 11:36:57 pm

BMF, I agree with you fully. This has nothing to do with his legal acumen or personal traits. In the only case I practiced before him (an initial capital case) found him to be very well versed in the law, and more than fair in his judicial conduct and rulings. But "tread lightly?" Poster? My ass. This is Spath redux and the same was said about him: great guy, great judge, etc.... That isn't the point. The point is that until one (or all) of these MJ's get their nutz crushed by CAAF (figuratively) for what is arguably conduct that is clearly wrong and in fact inconsistent with their reputations, it will continue. And that is unacceptable. A problem with such an easy fix
(disclosure for starters) shouldn't be difficult to fix. CAAF could certainly help that along.

9/20/2020 12:11:27 pm

Sure.
First of all, Spath was making a fool of himself. His conduct deserved the bledgeoning it got. He was otherwise a competent judge from all I can tell.
Second, Nance was known to be retiring. A DOJ application has little to do with this, unless reputation his something to do with it.
Third, there are a lot of judges that a a lot worse. That is why the tread lightly. He may not want to be thrown in with that lot.

I've been in front of J.R. Nance too. But in a very different capacity. As far as I can tell, he was the last military officer that I saw that had the courage to go along with integrity..

9/20/2020 12:32:59 pm

And Omar.
This CAAF ruling is in the same vein as any other ruling. You plead guilty, they ain't gonna save you.
Trying to put the judge on trial is dumb. When has one ever been bought back after retirement to explain themselves?
The problem with BB's case is that it isn't a one-time deal with UCI. It happens again and again. And your are right, very little happens. But see my comments about THIS particular judge on the subject.

Anon

9/18/2020 05:34:52 pm

"New documents show that on that same day [as SGT Bergdahl's pleas] Judge Nance applied for a position as an immigration judge" at DoJ. Wow. Coincidence?

Nathan Freeburg

9/18/2020 09:53:32 pm

Although I agree that Nance was not a judge to succumb to UCI (I actually enjoyed practicing in front of him), this is not a good look for military justice. Kudos to Frank and co for tracking this down.

2400 Pentagon

9/19/2020 08:06:44 pm

A conversation in the Pentagon:

TJAG: Outrageous what just happened at CAAF!

Deputy Assistant Strategic Initiatives officer: You mean the judge in Bergdahl who applied for a job at DOJ during the trial without telling anyone, using his decision defending the President in the case as his writing sample?

TJAG: No! Haven't you been to the grad course yet?? I mean the fact that someone would criticize one of our military judges!

9/19/2020 08:07:02 pm

Marcus Fulton

9/20/2020 09:51:50 am

Al-Nashiri opinion focuses on DOJ involvement in commissions. Assuming DOJ wasn’t involved in Bergdahl prosecution, is his isn’t on all fours with al-Nashiri.

Scott

9/20/2020 04:33:56 pm

I had the same thought - the direct involvement of DOJ in Al-Nashiri seemed to be a significant factor. If I remember correctly there was significant focus on that point during the oral argument as well.

MJ2016

9/20/2020 06:25:55 pm

One of the benefits of moving CAAFlog to this site and under Professor Fissell’s custodianship is that legal discussions can be had in an intellectual environment free from the vitriol and name-calling that cluttered the old site. I am not sure what “tread lightly” means – I knew what it meant in ROTC or when a colonel yelled it at me, but here it has no place if it is designed to curb the purpose of this site.

That said, I think the issue is capable of being discussed without trampling on Judge Nance’ character, of for that matter Judge Spath’s. Neither judge had the guidance of Al-Nashiri; and, concededly, Al-Nashiri is not “on all fours” with the issue here. The issue here is, I believe, as follows:

First: If one wants to look at the issue in the best possible light, assume that Judge Nance was interviewing for the immigration judge (IJ) position and he submitted his ruling as proof of his legal acumen. He thought that because he did not have an offer in hand from the DoJ, his answer that he was going to retire with no plans was an honest answer. After all, without a job offer, this might have been his thinking, even though one could take a reasonable exception to it. (Or one can assume the worst an argue that this was a deliberate omission, but that is not the path I take below)

Second: A reasonable person looking in at the military justice system might conclude that because immigration judges are not administrative law judges and are both subject to the Attorney General of the United States and may not deviate from AG policy statements and directives unless these are clearly contrary to law, part of the role of an IJ is to uphold/conform to the president’s authorities in immigration proceedings. Thus, at the time Judge Nance used his ruling as a writing sample, a reasonable person might conclude that the writing sample was proof to the AG that he would not act as independent judge akin to an Article III judge, but rather, he would conform to the expectations of the AG as a quasi-administrative judge. This ruling would serve that purpose. Or a reasonable person might just think that the writing sample was evidence that a judge could be impartial and is a good legal thinker.

Third: A sentence and guilty plea, under the law, have nothing to do with the matters raised in this rehearing (see e.g. Laffler v. Cooper and other decisions in which the Court makes clear that fundamental pretrial rights are not waived for the purpose of an appeal even when a defendant pleads guilty). UCI does not provide a person with a defense, it is essentially a jurisdictional issue: just like selective prosecution, or prosecutorial misconduct in chilling witnesses or destroying evidence the pretrial stages.

Fourth: Regardless of what a reasonable person might think about this, because it took a FOIA (and the slow-movements of bureaucracy to attain it) to discover Judge Nance’s timeline to being hired as an IJ, neither the Army Court of Criminal Appeals nor CAAF was able to consider whether these facts created an intolerable strain on the military justice system.

Finally: This issue is worthy of a rehearing and it can be accomplished without casting an aspersion on any of the actors.

CAAF may grant a rehearing and determine that there is no change in their analysis (the majority); or, CAAF may find that there is now, with the facts all known, an intolerable strain.

9/20/2020 07:02:01 pm

MJ2016.
Good points. Maybe it's not a bombshell. More like UXO.
Tread lightly.

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Bergdahl Bombshell--Nance'd, not Vance'd

Brenner Fissell

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