The big event on this week’s military justice calendar is ACCA’s oral argument in United States v. Behenna on Thursday at 1000.

This week at the Supremes:  There are no anticipated military justice developments at the Supremes on my radar screen.

This week at CAAF:  CAAF isn’t hearing oral arguments this week.  Arguments resume next Monday, 13 December.

This week at the CCAs:  On Tuesday, ACCA will hear oral argument in United States v. Henry, No. ARMY 20090147, on these issues:

I.  WHETHER THE EVIDENCE WAS FACTUALLY AND LEGALLY INSUFFICIENT TO FIND THE APPELLANT GUILTY OF INDECENT ASSAULT BY DIGITALLY PENETRATING THE ALLEGED VICTIM IN VIOLATION OF ARTICLE 134, UCMJ WHERE THE GOVERNMENT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE ALLEGED VICTIM DID NOT CONSENT TO THE DIGITAL PENETRATION.

II.  WHETHER THE EVIDENCE WAS FACTUALLY AND LEGALLY INSUFFICIENT TO FIND THE APPELLANT GUILTY OF ATTEMPTED RAPE IN VIOLATION OF ARTICLE 80, UCMJ WHERE THE GOVERNMENT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT HAD THE SPECIFIC INTENT TO RAPE AND THAT HE TOOK SUBSTANTIVE STEPS TO ENGAGE IN SEXUAL INTERCOURSE WITH THE ALLEGED VICTIM.

On Thursday, ACCA will hear oral argument in United States v. Behenna, No. ARMY 20090234, on these assignments of error:

I.  THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION FOR MISTRIAL, BASED ON THE TRIAL COUNSEL’S FAILURE TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

II.  THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION FOR NEW TRIAL, BASED ON THE TRIAL COUNSEL’S FAILURE TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

III.  THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY FAILING TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

V.  THE MILITARY JUDGE REVERSIBLY ERRED BY GIVING AN IMPROPER INSTRUCTION LIMITING APPELLANT’S RIGHT TO SELF DEFENSE.

VII.  THE MILITARY JUDGE REVERSIBLE ERRED BY FAILING TO INSTRUCT THE MEMBERS, SUA SPONTE, ON THE LESSER-INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER.

79 Responses to “This week in military justice — 5 December 2010 edition”

  1. Rob M says:

    W/r to Behenna, I still don’t understand the self-defense argument. Let’s say everything happens exactly as he claims it did, and exactly as the “exculpatory” expert would have testified. You still have a naked man- whether standing or sitting, unarmed, versus a man with a loaded rifle in body armor. There’s no possible way Behenna rcould easonably believe he was in imminent danger of loss of life or serious bodly harm. Even if there was a Brady violation, there’s no way it was prejudicial to the defense. Does harmless error apply in this situation, or is Brady a per se reversal?

  2. Phil Cave says:

    I think under Agurs, Van Arsdall, and Webb it will be HBRD.

  3. sg says:

    Two things–one, if Behenna had simply executed his mission, then we wouldn’t be talking about this now.
    two–what moron thought it was a good idea for Behenna’s platoon to take the suspect in the killing of two of Behenna’s men back to home village for release?

  4. Dwight Sullivan says:

    Rob M, a Brady violation doesn’t result in relief per se. Here’s the test for relief:

    If the Government fails to disclose discoverable evidence, the error is tested on appeal for prejudice, which is assessed “in light of the evidence in the entire record.” United States v. Stone, 40 M.J. 420, 423 (C.M.A. 1994). As a general matter, when an appellant has demonstrated error with respect to nondisclosure, the appellant will be entitled to relief only if there is a reasonable probability that there would have been a different result at trial if the evidence had been disclosed. When an appellant has demonstrated that the Government failed to disclose discoverable evidence with respect to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt. See United States v. Roberts, 59 M.J. 323 (C.A.A.F.2004).

    United States v. Santos, 59 M.J. 317, 321 (C.A.A.F. 2004).

  5. Rob M says:

    Sir,

    Thanks (as always)- that’s what I thought but didn’t have the caselaw to back it up. Under that standard, “different result at trial” doesn’t seem possible (which is probably why the trial judge denied the motion for new trial in the first place after what, three weeks of arguments and consideration?).

    SG- couldn’t agree more on both points. Bad decisionmaking all around, but still no (legal) excuse.

  6. Presley O'Bannon says:

    RobM,

    If a man lunges at you and you reasonably believe he intends to attack you, is that not hostile intent such that you would be entitled to shoot? If the Lt thought the person was trying to attack him, naked or not, I don’t believe the ROEs would require him to engage in hand to hand fighting, and he would be entitled to shoot if he wanted to.

    I’m not saying that’s what did or didn’t happen, but if that is how it played out, then I think that is self-defense. Or at least rates a self-defense instruction.

  7. Anonymous says:

    RobM,If a man lunges at you and you reasonably believe he intends to attack you, is that not hostile intent such that you would be entitled to shoot?If the Lt thought the person was trying to attack him, naked or not, I don’t believe the ROEs would require him to engage in hand to hand fighting, and he would be entitled to shoot if he wanted to.I’m not saying that’s what did or didn’t happen, but if that is how it played out, then I think that is self-defense.Or at least rates a self-defense instruction.

    No, it isn’t IMO. A naked man surrounded by multiple armed US soldiers is not a sufficient threat to warrant shooting the guy and killing him.

  8. Rob M says:

    Every ROE I’ve ever seen requires proportionality of force; deadly force can only be used to respond to deadly force. There’s no ROE that I know of that allows you to shoot an unarmed man, even if he is lunging at you. But that’s beside the point in this case.

    Legally speaking, RCM 916(e) says that self-defense is a defence to homicide or other use of deadly force when the accused “apprehend[s] on reasonable grounds, that death or grievous bodily harm was about to be inflicted wronggfully on the accused.” It’s not enough to reasonably believe that he’s going to “attack” the accused.

    Under RCM 914(e)(2), if the charge were assault with a deadly weapon, self-defense may only be invoked if the accused “offered but did not actually apply or attempt to apply” deadly force. In other words, even if you reasonably believe that mere “bodily harm” is imminent, rather than “death or grievous bodily harm” you still can’t actually pull the trigger.

  9. Ouch! says:

    Attorney Neal Puckett: Call the Army Leadership to Task on LTC Lakin’s Plight for Answers on Obama’s Eligibility; It’s a Constitutional Issue!

    http://obamareleaseyourrecords.blogspot.com/2010/12/attorney-neal-puckett-call-army.html

  10. Presley O'Bannon says:

    Rob M,

    I think you are misunderstanding proportionality. If there is time, then you certainly go through an escalation of force. But if someone is lunging for you, potentially to grab your loaded weapon, they could easily seize that weapon or in the process of struggling with you the weapon could go off, killing you or someone else.

    Naked or not, there is a risk of serious bodily harm or death. Moreover, there would not be time to go through an escalation of force.

    Assuming it happened this way, are you really saying that the Lt should have made an attempt to jump back and command him to stop? And that his failure to do so makes this a violation of the ROE and murder? The ROEs specifically are caveated that you never lose your right to self-defense. I would again submit that if someone is lunging for you, and potentially lunging for your weapon, that you pull the trigger and are in no way obligated to risk your life or your fellow soldiers lives by attempting some sort of tortured escalation of force.

  11. John O'Connor says:

    I don’t know anything about this case, but if a naked man (who I reasonably think might attack me) lunges at me, I’m not sure I buy the argument that I have to wrestle with him instead of shooting him.

  12. sg says:

    @Presley O’Bannon, John O’Connor,
    Taken by itself, a naked guy lunging at me, yeah, I’m gonna shoot the fu**er.
    Of course, I’m not going to go off orders and drag the guy down under a bridge when I’m supposed to be dropping him off. Better yet, I’m going to tell the old man that giving me and my boys the detail to escort home the guy suspected of killing my Soldiers probably isn’t the wisest move.

  13. Rob M says:

    Presley,

    Proportionality and EOF are related, but not identical. I didn’t say the LT had to jump back and command him to stop, nor would he have been legally required to go through the entire typical shout-show-shove-shoot escalation spectrum. The one thing that he was not legally permitted to do was pull the trigger. Not to get bogged down in the hypothetical weeds, but he could have buttstroked him, kicked him, used an Asp or other kind of baton, had one of his guys nearby with a nonlethal shotgun or M203 round chambered, etc. If the detainee presented a credible threat to Behenna or his government property (i.e. reaching for his weapon), he was authorized to use force in that self-defense, just not deadly force unless he was presented with deadly force. To answer your question, his failure to use nonlethal force does not make him guilty of murder (whether it violated the ROE is irrelevant). His use of lethal force to kill an unarmed man does.

    But again, this is not an ROE issue. This is about whether the legal defense of self-defense applies. Even if the situation were exactly as Behenna described it, he was not presented with any threat that could reasonably put him in apprehension of death or serious bodily harm. With regard to the detainee reaching for the weapon and thus presenting such a risk- that would justify use of deadly force IF the detainee were successful in obtaining the weapon (or, perhaps, it appeared that his obtaining the weapon was imminent). If he somehow wrestled Behenna’s weapon away from him, or was about to, then the LT or anyone else nearby would be legally justified to shoot him- because then he would be an ARMED threat. Just reaching toward him is not enough.

    But LT Behenna shot and killed a man who was unarmed. That’s murder.

    It might be splitting hairs, and it might have been a heat-of-the moment decision, all of which make for good mitigation/extenuation arguments but not defenses. I also agree with the sentiment that it seems his unit set him up for failure on this one by sending that platoon to release the detainee. It may also be that he wasn’t trained properly, or wasn’t emotionally or mentally mature enough to lead a platoon, or any number of other possibilities. But ultimately he pulled the trigger, and the rest of that stuff can’t make up for that.

  14. Jimmy Poon says:

    So, a Soldier can’t shoot someone who tries to attack him….in Iraq….outside the wire? What a bunch of libtard bullshit….

  15. Jimmy Poon says:

    Rob M,

    Regarding your most recent response, are you kidding? You sound like a law student. Are you still in law school? “But LT Behenna shot and killed a man who was unarmed. That’s murder.” Hmmm. So, according to your view of the law self-defense, an armed individual can’t shoot an unarmed individual, under any circumstances (b/c my God, if these circumstances don’t suffice, what would?) You need to go back and get a basic understanding of self-defense law and then come back and apologize for the bullshit you are spewing. You really think a Soldier has to wrestle this guy, and run the risk of having his M4 or M9 taken away and used against him? Damn, I hope you are not a JAG and I hope you are not advising commanders…seriously.

  16. Rob M says:

    I’m a law student, and an infantry officer with 7 years and a CIB. I’m not going to apologize. Do you want to discuss and debate the law like adults?

  17. Anon says:

    Rob,

    You might be Billy Badass in the Infantry, but you’ve got some serious learnin’ to do on the law. Where do you go to school anyway?

  18. Phil Cave says:

    Anon 2123. That’s why he’s in law school. Give him a break. Maybe he can teach us lawyers something about being a grunt. There’s room for debate on this from all sides.

  19. Jimmy Poon says:

    Rob, there’s no debate here. You’re wrong. So wrong as to be dangerous. Take a deep breath and acknowledge that your analysis is as fucked up as a football bat. Then, we can talk about this case. Until then, however…..

  20. Rob M says:

    I doubt very much the badass part and I’ll be the first to admit I have serious learning to do. Please, educate me- my first post started with “I still don’t understand.” I’ve tried to elaborate on my understanding of the legal principles. If you have a considered legal analysis, preferably one not laced with profanity, please share it. I shared mine, and welcome (constructive) feedback. Isn’t that the point of this forum?

  21. Rob M says:

    Jimmy,

    You have yet to give me a single statute, regulation, case, or other authority to explain to me why I’m wrong. I can swear as well as anyone, but it doesn’t seem to win arguments very often. Are you really just this angry that I don’t agree with you?

  22. Jimmy Poon says:

    So, now you’re just the curious law student searching for answers? Nope, not buying it. Here’s part of what you posted:

    “Presley,

    Proportionality and EOF are related, but not identical. I didn’t say the LT had to jump back and command him to stop, nor would he have been legally required to go through the entire typical shout-show-shove-shoot escalation spectrum. The one thing that he was not legally permitted to do was pull the trigger. Not to get bogged down in the hypothetical weeds, but he could have buttstroked him, kicked him, used an Asp or other kind of baton, had one of his guys nearby with a nonlethal shotgun or M203 round chambered, etc. If the detainee presented a credible threat to Behenna or his government property (i.e. reaching for his weapon), he was authorized to use force in that self-defense, just not deadly force unless he was presented with deadly force. To answer your question, his failure to use nonlethal force does not make him guilty of murder (whether it violated the ROE is irrelevant). His use of lethal force to kill an unarmed man does.

    But again, this is not an ROE issue. This is about whether the legal defense of self-defense applies. Even if the situation were exactly as Behenna described it, he was not presented with any threat that could reasonably put him in apprehension of death or serious bodily harm. With regard to the detainee reaching for the weapon and thus presenting such a risk- that would justify use of deadly force IF the detainee were successful in obtaining the weapon (or, perhaps, it appeared that his obtaining the weapon was imminent). If he somehow wrestled Behenna’s weapon away from him, or was about to, then the LT or anyone else nearby would be legally justified to shoot him- because then he would be an ARMED threat. Just reaching toward him is not enough.

    But LT Behenna shot and killed a man who was unarmed. That’s murder.

    It might be splitting hairs, and it might have been a heat-of-the moment decision, all of which make for good mitigation/extenuation arguments but not defenses. I also agree with the sentiment that it seems his unit set him up for failure on this one by sending that platoon to release the detainee. It may also be that he wasn’t trained properly, or wasn’t emotionally or mentally mature enough to lead a platoon, or any number of other possibilities. But ultimately he pulled the trigger, and the rest of that stuff can’t make up for that.”

    But, in the interest of helping you out, please point me to the cases you’re basing your analysis on. That will be a good start. From there, I’ll explain why you’re so wrong.

  23. Rob M says:

    I’m basing it on RCM 916(e), as cited in my earlier post. An unarmed man lunging with his bare hands does not present a risk of death or grievous bodily harm to an armed and armored Soldier.

  24. Dwight Sullivan says:

    Rob M, not surprisingly, it appears that several of the “individuals” you are debating are sock puppets.

  25. Rob M says:

    Sir,

    Thanks for the support(?) but the metaphor’s lost on me. Maybe that’s because this knuckle-dragging law student’s brain is fried and is using CAAFLOG as a break from studying for finals right now.

  26. Dwight Sullivan says:

    Rob M, sock puppet in the sense that it appears to be one person pretending to be different identities. I believe that sock puppeting is generally considered to be a breach of blogging etiquette (and that’s saying something!). I, for one, value your comments and your real-world experiences that help to inform them. I think we can safely ignore those darn sock puppets.

  27. John O'Connor says:

    Rob M, the metaphor’s lost on me too. But then Sullivan often speaks either over my head or so incomprehensibly that I have no idea what he is saying (like, say, at NJS ;-)).

    As for your analysis of self-defense here, I think your argument is circular.

    You say that “[a]n unarmed man lunging with his bare hands does not present a risk of death or grievous bodily harm to an armed and armored Soldier.” But I think the reason you say there is no risk of death or grievous bodily harm is because the soldier is armed. But if he’s not allowed to fire the weapon, then having it is of little use in preventing death or grievous bodily harm (except when used as a club, and I don’t think the law does — or at least should — require an innocent person to put his life at risk by using a rifle as a club intead of as, well, a rifle). An unarmed man has a helluva better chance of causing me harm if I have to engage in hand-to-hand combat instead of shooting him.

    Good luck with your studies.

  28. Anon says:

    Between the swearing and just general stupidity of the comments on this thread, it seems most are missing a more fundamental issue. If Behenna illegally stripped the guy naked and pointed a weapon at him, then he is the aggressor, and as a matter of law loses his right to self defense.

    Behenna would only regain the right to self-defense if the detainee escalated the level of violence and Behenna was unable to withdraw in good faith. United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007). Given that Behenna was already using deadly force (i.e. pointing a deadly weapon) it would be impossible for the detainee to escalate, even if he threw a rock or lunged for the weapon.

    The ROE has no application here because the ROE only applies to lawful combat activities. If Behenna decided to disobey his commander and go vigilante, he can’t fall back on either the ROE or self-defense. Doesn’t matter if the detainee is the personification of evil.

    Translation: He’s screwed.

  29. Phil Cave says:

    RobM, look up poontang in the Urban Dictionary for some levity.

  30. Rob M says:

    J O’C, thanks for the feedback. I don’t think that there’s no risk of death or greivous harm because the Soldier is armed. I think there’s no risk because the attacker is unarmed- whether the “victim” of the attack is armed or not makes no difference. Risk of harm, certainly- and the “victim” can obviously defend himself. But his life isn’t at risk. It’s physically possible to kill someone with your bare hands, but pretty difficult (especially if they fight back, and have lots of buddies nearby).

  31. Rob M says:

    Phil,

    Didn’t need to- I got the reference (I am still an infantryman at heart, after all…)

    Anon 2204,

    Thanks/concur.

  32. Jimmy Poon says:

    Col Sullivan, you know this young lad is wrong. Jesus, look at his 2213 post…really? This guy is arguing, apparently with a straight face, that you have to engage in a fistfight with an attacker b/c you had the foresight/good judgment/whatever to be legally armed. “Sock puppet” or not, I’m right. Why must we beat around the bush? For Christ’s sake, even J’OC is indulging Rob…WTF?

  33. Dwight Sullivan says:

    I’m in the middle of multi-tasking, so I’m not going to try to either look up law or form a cogent argument. But I will throw out this question. Let’s say I’m in a bar (I’m not, but I wish I were) and someone throws a punch at me. Would the fact that he threw a punch at me be a legal defense to me pulling out a pistol and shooting him? If not — and I believe the answer is not — then I think there’s room for discussion.

  34. Phil Cave says:

    People may well believe he’s wrong (and you are right), but there’s a way to tell him and not to tell him (and us). At this point I’m not sure we know enough of the facts. I’ve asked the Behenna’s if they can post the appellate briefs on their site but haven’t heard anything yet. They claim the AG has multiple false or misleading allegations/statements/facts in the briefs.

  35. Phil Cave says:

    RobM’s not in a bar yet either so you’re both on firm ground.

  36. Jimmy Poon says:

    Carrying a concealed weapon in a bar (a felony in my state and I’d presume others) is a far cry from what happened here. The Iraqi obviously knew Behanna was armed. A very relevant fact in my opinion. If an assailant attacks a person he knows to be armed (and the armed person knows that he’s being attacked by someone with said knowledge), said attacker better be prepared for a dirt nap…and his family better be prepared for a NG verdict if the gov’t has the cajones to bring charges.

  37. Dwight Sullivan says:

    Okay, let’s say I’m in a McDonald’s in a part of Virginia where it’s legal to carry an unconcealed weapon. Someone takes a swing at me. Can I then legally unholster my prominently displayed pistol and shoot him? I believe the answer is no. But the very fact that we just had that exchange suggests to me that the issue is worthy of a reasoned discussion.

  38. sg says:

    Why wasn’t Behenna charged with Art. 90 for violating his orders to return the detainee home? I mean, just because it wasn’t in his orders to take the guy below a bridge and threaten him and then kill him, doesn’t mean that he was authorized to do so.
    My problem here comes from the concept that somebody can claim self-defense in a situation one unlawfully created.
    I don’t know Michael Behenna from Adam. I’m sure he was a loyal, hardworking young officer who loved his men and wanted to lead them well. But we know that he killed that guy under that bridge in the middle of an act he wasn’t supposed to be undertaking. I don’t know the law. That’s why I hang out here.

  39. Anonymous says:

    I think the pertinent part is the naked part. When you strip someone down to their birthday suit you’ve kinda placed self-defense in jeopardy.

    If the answer is, you can kill anyone coming at you because they MIGHT reach your gun then one wonders why we even have a show of force requirement.

    But that’s ROE not self-defense. I agree more facts would be helpful but generally speaking it’s tougher for me to believe deadly force is needed when the dead person was stripped naked unlawfully and he’s surrounded by the people who stripped him naked who have guns.

    Heck if I’m that guy, I’m probably thinking I was stripped naked because I’m about to be taken out. And yeah I know bad guy, he deserved it, who cares?

    ‘Cept we are supposed to be better than them.

  40. Rob M says:

    Phil,

    Do you think it was legal self-defense, but still think that failure to disclose the expert opinion will be HRBD?

    BTW- liked the pun about the bar. Cheap shot, but funny.

  41. Phil Cave says:

    British humour and puns should never be considered cheap shots. A cheap shot is american whisky. I have not thought about the SD issue too much. My complaint is the discovery issue because it is an all too frequent issue in too many cases. My frequent response to ‘what’s the biggest problems you see’ is discovery. If the world were fair then the case gets bounced on the discovery because Herb MacDonnell’s testimony was the needed “corroboration” or explanation of events and counters TC’s argument. (Someone commented on my blog that the TC argued the defense had no corroboration of the story (?). If true about the TC argument then that’s a double reason (and a frequent event in cases) for the error not being HBRD.)

  42. Rob M says:

    So do you think it was reversible error in this case? For me, the self defense issue seems central to the trial judge’s original denial of the motion for new trial. Even if the expert opinion were discoverable and the prosecution erred by not disclosing it to the defense, it would have made no difference. The underlying point is that even if everything happened exactly as Behenna claimed it did, and even if Dr. MacDonnell would have perfectly corroborated his version of what happened, it was still not legal self-defense.

  43. Dew_Process says:

    I agree with my learned friend Phil, with one notable exception. There is no “american whisky,” cheap or not!

    http://www.whiskydistilled.com/whisky-basics/whisky-whiskey-spelling/

  44. Phil Cave says:

    DP LOL, ya got me.

  45. Dew_Process says:

    Rob M,
    I suspect that what’s conceptually bothering you is the actual complexity of a bona fide “self defense” defense. There are two components, the objective one [ordinary prudent adult] and the subjective [the “eyes of the accused”]. Under the facts of Behenna, other components of self-defense include the accused’s “state of mind” [you don’t have to pause at your peril to deliberate] and perhaps “justification.”

    As you can see, it’s an extremely fact specific defense, and Dr. MacDonell’s testimony would have both refuted the government’s argument that the deceased was sitting down on a rock when shot, versus the Defense’s argument that the decease was lunging at him, going for his weapon. The physical facts supported the defense – horizontal and parallel versus angled bullet trajectories; to which Dr. MacDonell concurred. So his testimony would have both hurt the prosecution and helped [corroborated] the defense.

  46. Rob M says:

    Dew Process,

    That makes sense, but isn’t the subjective component entirely confined to the second element of self-defense (the belief that the level of force was necessary)? The first element is the objective one- the reasonable belief in the danger of imminent death or greivous harm, or so I thought.

    The trial judge in his denial of the motion for new trial said that the witheld expert testimony would not have made a difference in the verdict. That seems to imply a ruling that, as a matter of law, even if everything happened exactly as Behenna/MacDonnell described it- standing/lunging for the weapon, etc. that does not constitute self-defense.

  47. truthwillsethimfree says:

    Rob M,

    Since when did the MJ become a divine being with the ability to know what the panel would have done with the Dr’s testimony. Let the court hear all of the facts and then make a ruling.

  48. Rob M says:

    The trial judge did hear all the facts. He ruled as a matter of law, as is his responsibility, lack of divinity notwithstanding. So even if the facts were viewed in the light most favorable to the defense, as the defense alleged, it still would not cast the verdict into doubt.

  49. truthwillsethimfree says:

    So I guess the rule of law doesn’t apply to the prosecutors? They withhold evidence, lie about it’s existance, argue on the record against the forensic facts of this case, and call a US Army Officer a liar in their closing arguements even though they were told that his account was the only one the fit the facts. Seems like the MJ’s ruling was an personal opinion and not a ruling on case law. Plain and simple–let the panel hear ALL of the facts and make an informed decision.

  50. truthwillsethimfree says:

    Judges make misstakes during trials. This case documents a perfect example and hopefully the appeals court follows the rule of law and overturns this conviction based on the case presented by the LT’s defense counsel.

  51. Rob M says:

    I apologize if I wasn’t clear in earlier posts- I completely agree the prosecution screwed this up, and badly. Something can/should probably happen to that prosecutor, if it hasn’t already.

    And of course judges make erroneous rulings. I’m just not convinced he did in this case. The time spent considering the postrial motions was longer than the actual trial, if memory serves. That was why my first question was whether harmless error would apply in this case. It seems like the error was harmless – even if the defense had presented Dr. MacDonnell’s testimony it would not have met the legal standard for self-defense, thus the ruling of the judge that it would not have changed the verdict.

  52. truthwillsethimfree says:

    Rob M

    Go back to the 4th comment posted here. The arguement is said best by D. Sullivan. The entire arguement of the prosecution’s case falls apart with the admittance of the Dr’s testimony. In their closing arguement, they stated that the LT’s account of the events was “impossible, implausable, and a complete fabrication”, all the while knowing that it was the “only logical explanation”. They never would have been able to make those statements to the panel if the Dr’s testimony was allowed in the courtroom and maybe the panel would have reached a different verdict.

  53. Phil Cave says:

    Unlikely anything negative has happened to the prosecutor. Probably got a medal and a top block OER.

  54. truthwillsethimfree says:

    Phil,
    One of them had a short-lived run for Congress. Luckily for us civilians it was just that.

  55. Rob M says:

    TWSHF,

    You’re right about the prosecution’s statements and the fact that they wouldn’t be able to make them but for the exclusion of the Dr’s testimony. But I’m still skeptical it wasn’t harmless error. Even if the gov’t has the burden to show that it was harmless BRD (specific request/prosecutorial misconduct) it seems like they can meet that burden if they show that, assuming every fact to which Dr. MacDonnell would have testified was true, and the detainee was in fact standing and moving toward Behenna when he was shot, it still was not legally self-defense.

    I suppose ACCA will let us know one way or the other.

  56. truthwillsethimfree says:

    Don’t know how you don’t see self-defense? Think about these facts–a documented Al-Qaeda member that has threatened your life on several previous occassions, killed two of your men and seriously injured two more just weeks before, standing within an arms reach with their arms reaching for your gun in a tunnel at dusk during a sand storm, and many other circumstances outlined during the first trial. A US Army Soldier NEVER loses his right to self-defense in a war zone!

  57. truthwillsethimfree says:

    One last comment–If Ali wasn’t a direct threat then why did the US Military issue a kill/capture order for him? I doubt that order stated to kill only if he had a gun in his hand first.

  58. Rob M says:

    Regarding the reaching for the weapon, I’ve reiterated my theory as to why this isn’t self defense enough by now. As for the rest of it, even though this guy was an AQ member, even though he had previously killed and attemnpted to kill Americans, even though he was an overall bad guy, even though this was in a war zone, none of this matters to the analysis of whether he presented a threat to Behenna’s life at the time.

  59. Phil Cave says:

    RobM. Double check that. See what you find in regard to knowledge of the “victim’s” character for violence and specific acts of violence known to the accused prior to the act of self defense; and how all that may fit into a self defense argument.

  60. truthwillsethimfree says:

    Thank you Phil, I couldn’t have said it better myself!

  61. sg says:

    Phil, I still gotta ask, primarily because nobody answered it:
    Since Behenna had taken that guy down under the bridge and had begun interrogating him after stripping him naked, I have to ask–how can Behenna claim self defense in an illegal situation that he set up? Cause it’s for damn sure his orders didn’t include “interrogate the guy at the threat of his life.”
    It just seems to me that having something bad happen was a realistically foreseeable outcome of his actions. Maybe that just makes him a poor combat leader but not a criminal.
    Or is that the elephant in the room, because I’ve asked a couple of times and nobody has addressed it?

  62. Rob M says:

    Phil,

    I’ll have to take your word for it at least for now- I will take you up on your suggestion at a later date (probably in two weeks). But does knowledge of the “victim’s” character for violence/specific acts factor into the objective analysis of the first part, or just the subjective analysis of the second?

  63. Rob M says:

    SG,

    For what it’s worth, I agree with the premise of your question. But my thinking is that none of that would matter- even if he had not been the initial agressor, had not already violated orders, doctrine, ROE, and basic humanity by his treatment of the detainee, even if he did everything right until the moment he pulled the trigger, it still wasn’t justified.

  64. truthwillsethimfree says:

    It was answered in a previous post. The LT testified and was coobborated by a witness that he did not want to harm Ali in anyway. He wanted Ali to give him the information about the Al Qaeda cell leaders in order to stop the attacks on his unit and then he would have been release to the checkpoint outside of the culvert. Ali escalated the situation by leaving the seated position and as the LT perceived the physical threat–he quickly stepped to the side and fired a controlled pair, as he was trained to do by the vary military that has now charged and convicted him with these crimes.

  65. Mike "No Man" Navarre says:

    TWSHF–The point is debatable, but the members viewed all the evidence (sans the MacDonnell) testimnony as not establishing self-defense. The MJ, after viewing all the evidence and the MaDonnell testimony, found as a matter of law it would not have mnade a difference. That was the MJ’s job. If ACCA thinks you can;t come to the same conlcusion they’ll reverse, and so on at CAAF. All this talk about the individual being a member of al-Qaeda doesn’t address the real issue of self-defense under the circumstances because it says nothing about what the detainee was doing at the time–but it always seems to come up, why is that? Interestingly, neither NACDL nor the defense in its motion for new trial and affidavit mention the fact that the man was a member of al-Qaeda.

  66. truthwillsethimfree says:

    That might be because the military document was not allowed to be entered into evidence by the MJ. The prosecution objected to it and said that it was defamatory to Ali and the MJ agreed. If Ali is identified as Al Qaeda then the ROE allows for his death but by keeping him labeled as an “innocent Iraqi Police Officer” that fact is taken away.

  67. Rob M says:

    The ROE only allows for his death if he’s displaying hostile intent toward protected persons or property. There are no hostile actors declared in IZ (unless something changed that I don’t know about). Moreover, no ROE (or, for that matter, a “kill or capture order”) allows for shooting a detainee in custody.

  68. sg says:

    Thanks, Truth, but what you just told me doesn’t seem to exonerate him. Again, he took it upon himself to violate his orders and go off-mission. The result of those illegal actions is that he killed the detainee. It comes to this–if Michael Behenna had executed his mission as he was ordered to do, he would never have placed himself in that situation, and he wouldn’t be in prison today, and I don’t see how testimony about body positions could really help him. I don’t see him being acquitted, given everything else. I could be wrong, though. I’ve been wrong before, and I’m not a lawyer.

  69. Rob M says:

    TWSHF- just a hunch, and please feel free not to answer, but do you have some personal connection to this case?

  70. Mike "No Man" Navarre says:

    TWSHF–A few other data points, I note ACCA hasn’t scheduled for oral argument the AofE for the erroneous exclusion of evidence that the detainee was a member of AQ. Says something about their thoughts on the issue–if the defense raised it as an appellate issue.

    The briefs refer to him as a detainee and Ali Mansur.
    And while my ROE isn’t up to snuff with others, I am relativewly confident that the Army Counterinsurgency Doctrine and ROE for OIF would not permit the use of deadly force without a threat of deadly force, threat of serious bodily injury, or something similar. If I had to guess, Iraq was not a free fire zone with designated hostiles at any time other than the very beginning of OIF–my totally wild speculation not guided by any classified info–and all ROE prohibit the killing of detainees. Thus, your devolving argument shows something.

    I still say the self-def point and harmlessness are open questions, but I also don’t have the briefs to make an informed judgment either way.

  71. Greg says:

    But does knowledge of the “victim’s” character for violence/specific acts factor into the objective analysis of the first part, or just the subjective analysis of the second?

    When in doubt, go to the jury instructions. Here are the jury instructions about knowledge of violent character:

    Evidence that the accused was aware that the alleged victim (is) (was) a (violent) (peaceful) person, or had a belief as to that character, should also be considered by you in determining the question of the reasonableness and extent of (passion) (apprehension of danger) on the part of the accused

    So, both. Would a “reasonable person” acting with knowledge of the reputation for violence of the victim fear for his life (or great bodily injury) AND/OR did the accused’s specific knowledge of reputation cause him to have a good-faith fear for his life (or great bodily harm).

    You can also present reputation evidence that is unknown to the accused, in support of a theory that the victim acted in accordance with that violent nature.

  72. Greg says:

    Without flooding the forum with jury instructions, it seems that the evidence here may not provide a perfect self-defense argument, it could provide two crucial things:

    1. Support for a “sudden passion with adequate provocation” argument – making this a manslaughter conviction, not murder.
    2. Support for a fear of “grievous bodily harm.” You don’t need to fear for your life to employ lethal force in self-defense, you need only fear “grievous bodily harm” which is more than bruises, but includes “fractured or dislocated bones, deep cuts, torn members of the body,
    serious damage to internal organs, and other severe bodily injuries.” Seems to me that a charging man, unarmed or not, could put a reasonable person in apprehension of dislocated bones or deep cuts at the very least.

  73. Rob M says:

    Greg, thanks for the insight.

  74. That Guy says:

    Phil Cave:

    Army CPTs don’t get top blocked anymore. Been that way for almost ten years now.

  75. Anon says:

    Rob M: This may help answer your question about the “personal connection.”

    http://www.defendmichael.com/

    http://en.wikipedia.org/wiki/Michael_Behenna

  76. Dew_Process says:

    Lot’s of interesting stuff on the “Defend Michael” cite, but no Briefs. But, here’s the email from Dr. MacDonell that started this whole thing:

    http://defendmichael.files.wordpress.com/2009/03/govexpertwitness.pdf

  77. John O'Connor says:

    For Christ’s sake, even J’OC is indulging Rob…WTF?

    I guess I’m just a collegial guy who can’t help but be encouraging to law students.

  78. W says:

    As I understand the arguments here, the self-defense argument is predicated, in large part, upon the knowledge the 1LT had of Mansur’s deadliness and consquent belief (as has been argued in his defense) that he had to use deadly force to protect himself. From a naked man he allegedly perceived to be lunging for his weapon.

    So I throw this hand grenade out there: If Mansur was beleived to be so deadly to the 1LT that his actions could be argued reasonable, why did the 1LT have his flex cuffs cut off? How does that affect the self-defense analysis?

    I tend to agree with sg here – the actions of the 1LT, prior to and immediately following the shooting seemingly belies the true thought process of the 1LT in this case. And I suspect that is what the members thought as well, given their verdict and sentence.

  79. truthwillsethimfree says:

    RobM,
    My connection to this case is that I am an US civilian that reaps the rewards from the sacrifices of our Heroes in the military. I feel that every soldier/marines/airman should get the right to a fair trial especially when the “crime” occurs in a war zone.

    As I stated before, the prosecution never put on any evidence or testimony that the LT acted “unlawfully” by conducting the interrogation. He was ordered to release Ali and planned on doing so just after he gained the information he felt would stop the attacks on him men. This fact was never controverted by any of the prosecution’s witnesses. In fact, it was supported by Harry but the LT never got the chance due to Ali’s actions just prior to being released to the checkpoint that was located just outside the culvert. If the prosecution was so sure that it was “unlawful” then why not address it when they had his superior on the stand?