Short and sweet because WordPress just ate an hour’s worth of blogging on our #5 story.  Behenna case mixes politics, media coverage, interesting facts, and a potential Brady violation discovered after the verdict is announced.  Here is a website with the email from the government’s expert that gives rise to the potential Brady issue, the motion for new trial and the expert’s subsequent affidavit, here.  And, here is coverage of a potential Army Clemency and Parole Board hearing in DC, here, and a just recently expired filing deadline related to appeals, here.

14 Responses to “Top 10 military justice stories of 2009–#5: 1LT Behenna Detainee Killing Case”

  1. Phil Cave says:

    Sorry to hear that.
    Try using the plug-in — Windows Live Writer on your desktop. That allows you to “save draft” as you go, and it saves a draft copy in your WLW, not just on the website.

  2. Anonymous says:

    Or you could just write all posts in a word document and then cut and paste the final version.

  3. No Man says:

    Gee, you know that information… really would’ve been more useful to me yesterday!!

  4. Anonymous says:

    I just looked at the motion for new trial. Maybe my standards are off from having lived in the appellate world for so long, but it seemed very thin, and very poorly done–particularly for a case of this magnitude.

    You’d think they would have at least tried to apply the facts to the law. Instead, the motion is wholly bereft of any legal discussion. Maybe they were relying on oral argument in front of the judge, but still, I think it is inexcusable to have such a thin motion.

  5. Anonymous says:

    good grief, I’ve heard of brevity being the soul of wit but that was ridiculous. That’s almost IAC level of effort there. Dear Judge, you can order a new trial because of this one case I have cited. There was exculpatory material. Therefore, you should order a new trial. Signed, crappy attorney.

    Sad to say this comment may have more words overall than that motion.

  6. Anonymous says:

    The Brief at ACCA was filed prior to the deadline.

    Anon 1615 – your instincts are correct, but your conclusions are belied by the actual facts. There was extensive litigation on the Defense’s “Mistrial” motion, to include considerable briefing and a hearing before the MJ. AFTER the MJ denied the mistrial motion and released his Findings of Fact, the Defense obtained the April Affidavit from Dr. MacDonell. The Defense filed the New Trial Motion the same day, because the MJ was (a) about to authenticate the record; and (b) wanted to get the Affidavit in the Record before authentication, knowing full well that the MJ, COL Dixon, was not going to in essence “reverse” his decision. All of the law had previously been briefed, to include Amicus involvement. The Motion was filed for the tactical reason of precluding a government argument that the Appellant didn’t “exhaust” his remedies by expressly moving for a New Trial after the mistrial was denied and after obtaining Dr. MacDonell’s Affidavit.

    Anon 1649 – since obviously you weren’t privy to the factual background and tactical considerations involved, your criticism can be excused. Your defamatory comments about a very good Defense Counsel, COL Jack Zimmermann, USMCR(ret) and a former MJ, cannot be.

    DISCLOSURE: I am NOT one of Behemma’s lawyers nor a relative of his. But, I was consulted on the ethical issues surrounding the Brady violation.

  7. Flea Baylee says:

    I’m very surprised there were no amicus filed.

  8. Anonymous says:

    I dont care who he was. You can come up with something better over lunch than a one pager like that. Lexis works doesn’t it? I’m not sure there is much of an argument for turning in that one pager, then saying, well see, we stopped you from arguing we didn’t exhaust all remedies.

    I’m sorry but your explanation doesn’t convince me that the MNT was adequate in the slightest. It might excuse a less extensively brief MNT. It might excuse a 5-6 page brief but substantive motion, that again can be done with a couple of hours of work. Particularly if as you said, the underlying law had been briefed and addressed, why not cut and paste the better parts, add in some MNT case law, and tie it together with a new argument?

    Just because someone made colonel and got selected to be a judge doesn’t mean they don’t make bad decisions.

  9. Anonymous says:

    Anon 1803 – if you’re not familiar with the mistrial litigation, how do you know that there was a “new argument” to be made? If you’re not familiar with the 1105 materials submitted, how do you know that any such “new argument” wasn’t made there for tactical reasons?

    The minimalist format of the New Trial Motion, was a very deliberate, debated and researched tactical decision and was made only after consultation by the defense “team” with outside appellate counsel.

    Sometimes picking your forum for making your arguments is an important tactical consideration. There was a deliberate purpose for Behenna’s counsel’s approach, and it was accomplished as intended.

  10. Anonymous says:

    by “new argument” I meant the difference between argument for a mistrial and arguing for a new trial.

    Please enlighten me on how the “minimalist” format was more effective and tactically necessary than something a little more detailed, because I’m struggling to see the tactical error that could ensue from making a reasonably detailed argument versus a minimalist one.

  11. Private Cowboy says:

    It seems like the Navy/Marine Appellate court came out with a decision like this case a few months ago. Where the Gov’t expert had info not turned over to the defense.

    I’m troubled with the prosecutor’s closing arguments based on information she knew was not true.

  12. Phil Cave says:

    Mott, in November. The issue was a psych expert. Here’s a link.,%20R.R.%20200900115UNPUB.pdf

  13. Anonymous says:

    Anon 1816 – First of all, you have to put this into the context that the Mistrial motion was extensively litigated, to include a specific hearing, and briefed on every conceivable aspect of the Brady violation issue. Second, the MJ made it quite clear in his Findings of Fact and Conclusions of Law that he wasn’t going to grant relief, regardless of the style of the Motion.

    If you have read Webb, the case cited [66 MJ 89 (CAAF 2008)] – nothing more needed to be cited or argued, Webb is the law and was quite on point as it also involved a Brady violation.

    Tactically, Dr. MacDonell’s Affidavit needed to get included in the record; tactically, there was another reason to handle the situation as it was which I’m not at liberty to discuss publicly.

    I don’t know what your experience level is [and I’m not criticizing you], but sometimes the Defense does not ask an obvious question to a witness for the tactical reason of wanting to address it on their terms, not the governments.

  14. Anonymous says:

    Your last bit doesn’t comport with your first bit. On the one hand you say, this was already litigated, and the judge wasn’t going to listen no matter what we wrote.

    On the other hand you say, well, we wanted to address this on our terms and not the goverments.

    On the one hand you say it was all fully briefed and the law fully presented with no need to present anymore, on the other you say de minimis was necessary so as not to address it on the government’s terms.

    I can’t imagine a scenario where a one paragraph pro forma argument is superior to something a little more detailed. Maybe this is the one, special exception where it was, but it doesn’t appear that way thus far. Regardless, it will be addressed on appeal one way or the other. Hopefully the appellate courts agree the argument and issues were fully briefed by appellant.