Thanks to the Anon who called our attention to Joe Monzingo’s two-part series for the LA Times on the prosecution and conviction of Army 1LT Michael Behenna.  The series can be found here and here.  The LA Times notes, “The Army would not permit a direct interview with Michael Behenna. The Army judge, prosecutors and a spokeswoman for the 101st Airborne in Ft. Campbell declined to comment.”

15 Responses to “Two-part LA Times series on the Behenna case”

  1. Anonymous says:

    Does seem like a decent Brady issue to me.

    Judge Dixon has been described by some as defense-friendly, but not in my experience.

  2. Anonymous says:

    Anybody know if the prosecutors are still prosecuting?

  3. Anonymous says:

    Yes, they are still lawyers and have not experienced any reprimands, sanctions, etc. related to their actions in this case. Capt Poirier and Capt. Elbert are still prosecuting cases for the US Army. Capt. Roberts was leaving the Army and running for political office until recently. His campaign website has been pulled down and the address is up for sale.

  4. Anonymous says:

    1LT Behenna’s parents are scheduled to appear on the Bill O’Reilly show Wednesday the 23rd.

  5. Anonymous says:

    Let’s not just point the finger at the Captains, there are COJs and an SJA/Deputy who very likely were informed and advised them on what to do.

  6. Anonymous says:

    I’m not pointing fingers at just the Capts….I was just addressing the previous posters question as to their status. A possible correction, Capt. Poirier may be on maternity leave as she disclosed during the LT’s court-martial that she was pregnant and even asked for court recess during crucical point of witness questioning.

    As for whether they were advised or not, doesn’t really matter when an officer of the court, in this case all three prosecutors, denied having exculpatory evidence in their possession when specifically asked on the record by defense counsel and the military judge.

  7. Phil Cave says:

    They were prosecutors.

  8. Anonymous says:

    ANAN 9:25 –
    What evidence do you have that the SJA/Deputy were likely informed and provided advice to the prosecutors. In my experience the SJA/Deputy do not get heavily involved in CM’s since they are called upon to provide advice the to convening authority pre-referral and post-trial.

    I tend to agree with ANON 9:47. TC’s denied having exculpatory info when asked — that was their choice and their choice alone.

  9. Phil Cave says:

    Anon 901
    I don’t know to what they refer either. However, it is my experience that AF SJAs in particular get heavily involved. In a number of cases I’m personally aware of they have held detailed meetings with TCs to discuss the trial, strategy, etc. Yes, a possible reason to disqualify them. SJA involvement varies in the Army, almost never with Navy/Marine. Chief of Justice or MOJO would be a different matter.
    Did the TCs say something post-trial to the SJA or MOJO? If so, they SJA could have told them to request a post-trial 39(a) to develop the issue to preserve a record.
    Maybe some years from now there will be a DuBay record?

  10. Anonymous says:

    I dont have evidence that they definitely were just experience that at some point in the process they very very very likely were.

    I would suspect that this being an issue raised during trial concerning Brady that if they were competent counsel they would have at the very least run it by their superiors. At the very least the COJ. In many cases, either the Deputy or the SJA maintains a decent level of involvement (for good or ill), I routinely did my negotiations as a defense counsel in one location with the SJA because he ran the crim law shop, not the TCs/COJ. I’ve heard of others doing the same thing. I’ve seen it happen at two different locations.

    So no I don’t have proof, just a very high likelihood.

  11. Anonymous says:

    This case should make for a very interesting appeal regardless of the SJA/Deputy involvement.

  12. Anonymous says:

    Cossio asks: “I asked if anyone is Privy to the Judge’s reason for denial besides the “it wouldn’t have mattered” excuse.”

    Yes, there was another basis – he said that Dr. Herb MacDonell was not a “credible” witness. That, in spite of a detailed email to the Trial Counsel and the “fuzzy” memory of the Trial Counsel at the post-conviction hearing. That was unfortunately, a foregone conclusion, otherwise he would have had to grant the Defense’s Motion. I’ve read the record and the MJ’s decision on this simply is not supported by the testimony and other evidence adduced, so it would normally be an interesting appeal, but don’t count on ACCA to stick their necks out.

  13. CPT Rob M says:

    I’m a law student (and an infantryman, at that), so I’ll admit my expertise and knowledge is less than probably most of the people posting here. However, my guess is that the conviction will be affirmed on appeal. Here are my reasons:
    First: since an expert only provides his “opinion” to the court, as opposed to a lay witness who testifies as to exactly what he or she saw (i.e. “facts”), the brady doctrine applies differently. For better or worse, a party can consult with 10 experts, find the one who supports his case, and call him as a witness, with no obligation to report what the conclusions of the other 9 were, since all 10 were merely giving their opinions.
    Second: The ultimate conviction (Art. 118, “unpremeditated murder,” which I assume is “act inherently dangerous to another”) has as elements “that [the intentional] act was inherently dangerous to another and showed a wanton disregard for human life,” “that the accused knew that death or great bodily harm was a probable consequence,” and “that the killing was unlawful.” Shooting somebody twice would certainly meet the first two elements, and killing a prisoner under one’s custody is clearly unlawful, satisfying the third element.
    3. Even if self defense were raised as a defense (the article doesn’t clearly say whether it was), RCM 916(e) requires that the accused “apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused” and “believed that the force was necessary for protection against death or grievous bodily harm.” Even if the prisoner was lunging toward the accused, shooting him was excessive force and a reasonable person would not believe that a naked man lunging at an armed soldier was about to inflict death or grievous bodily harm.

    I think this is why the trial judge said that “MacDonnel’s testimony wouldn’t have changed the verdict.” Even if everything happened exactly as the defense and MacDonnel described it, he still intentionally shot and killed an unarmed man. My guess is the appeal will be (correctly) denied.

    Someone said they’ve read the record; if you have a link somewhere I’d like to read it. I’d also like any response (especially from practicing attornesy).

  14. Anon says:

    This one of the most reasonable posts on this subject. Too often the biggest voices on this subject are supporters of the accused….The only point I can say is that in the military and federal system they are much more strict about having to turn Brady material over to the defense….State criminal justice system would be more similiar to your position….In my opinion, the Feds and military give so little basic discovery that they have to be extra careful in making sure they turn over any exculpatory material.

  15. Anonymous says:

    “Even if the prisoner was lunging toward the accused, shooting him was excessive force and a reasonable person would not believe that a naked man lunging at an armed soldier was about to inflict death or grievous bodily harm.”

    Hey Capt. Rob,
    If he grabs the gun he shoots the 1Lt. dead! It’s in the fog of war and he’s a known AQ and killer of US Soldiers!

    WHAT don’t you get here? I’m thankful for soldiers like this so you can sleep tight tonight!