Judge moves Bergdahl court-martial back up

Col. Jeffery Nance on Tuesday set Bergdahl's trial for April 18, 2017. On Monday, he agreed to delay the trial until mid-May at the request of prosecutors because of the slow pace at which they're getting approval to turn classified evidence over to Bergdahl's lawyers.

Nance has ordered the prosecution to get the defense the classified documents and the computer software needed to review them. Defense attorney Eugene Fidell said Tuesday's change in the trial date, which is the fifth so far in Bergdahl's case, might not be the last one.

"This is sort of a cascading effect," Fidell said. "If there is a delay by the government, then it would tend to delay our ability to prepare for a trial."

Bergdahl, of Hailey, Idaho, walked off his post in Afghanistan in 2009 and was held captive by the Taliban and its allies for five years. He has said he wanted to cause an alarm and draw attention to what he saw as problems with his unit. The Obama administration's decision to swap Taliban prisoners for his return in 2014 was heavily criticized by some Republicans.

Bergdahl is charged with desertion and misbehavior before the enemy, the latter of which carries a maximum penalty of life in prison.

Nance also was listening to testimony Monday and Tuesday about whether injuries to soldiers while searching for Bergdahl should be allowed as evidence. Prosecutors have argued that two wounded soldiers' injuries should be allowed to show that Bergdahl's disappearance effectively put other military members in harm's way.

Air Force Maj. John Marx testified about a firefight that occurred after he and several others joined about 50 members of the Afghan National Army on a search for Bergdahl. They were attacked by enemy fighters after setting up a checkpoint near a town in Afghanistan on July 8, 2009.

Marx testified about fighting alongside Army National Guard Sgt. 1st Class Mark Allen, who was shot in the head during the firefight. Prosecutors said Allen suffered a traumatic brain injury that has left him in a wheelchair and unable to communicate. Another soldier had hand injuries and required surgery because of a rocket-propelled grenade.

Marx, who said the mission's sole purpose was to search for Bergdahl, testified that he was next to Allen as bullets flew around them.

"I looked at him, then I see a trickle of blood coming down his head," Marx testified.

Asked where Allen was wounded, Marx pointed at his temples and said: "Right through his head."

Bergdahl, dressed in a white shirt and blue pants, appeared stoic as he listened.

Marx and two others involved in the firefight said they came from another part of Afghanistan to take part in a hastily planned search mission. They had been embedded with Afghan soldiers to help train them.

Prosecutors have said evidence of the injuries will help them show that Bergdahl endangered his comrades, one of the elements of the misbehavior before the enemy charge.

Bergdahl's defense attorneys said the injuries were because of a lack of proper planning and execution before leaving on the search mission. Allowing the evidence would unfairly prejudice the jury against Bergdahl, they said.

"The question is, is this evidence really necessary, or is the matter of endangerment one that should be judged ... beforehand?" Fidell said outside of court Tuesday.

Nance hasn't ruled on the admissibility of the injury evidence. The next motions hearing in the case is set for Dec. 1.