The Army has to start over in the court-martial against Sgt. Kevin Benderman. His case has taken a surprise twist. Benderman's charged with deserting his unit, and yesterday, the judge threw out that indictment.
The court-martial was over before it began. In pre-trial motions, his attorney claimed the investigator assigned to the case appeared partial to the prosecution and communication between her and the judge proved it. At the end of the day, the judge agreed.
"That a comment that was made in an email and facsimile may be reasonably perceived as to having an opinion regarding culpability," said Maj. Pamela Stephens, chief of administrative law. "As a result of that, he found that the government did not overcome the presumption of prejudice."
The news was a partial victory for Benderman. "I just know that I want the truth to continue to come out," he told us. "And I think that's what happened today. Some of the truth came out that they mishandled the Article 32 hearing."
Now the case goes back to square one to see if he will face court-martial for refusing to return to Iraq. "I know there's going to be another Article 32 and they're going to appoint a new investigating officer," said Benderman. "And I just hope that this officer is as fair as the judge was today."
The Article 32 hearing is the military equivalent of grand jury testimony, but with almost every witness for the prosecution or defense deployed in Iraq, there's no telling how long this process could now take.
The new investigating officer will hear the case again and make a recommendation whether the Army should court-martial Benderman.
A veteran of Operation Iraqi freedom, he asked for conscientious objector status before his unit deployed back to Iraq.
We have a crew on the scene and as the case continues, we'll have the latest.