Although it’s not yet available on the Army Court’s website, our friends at CAAFlog confirmed what we suspected when we saw the Ali opinion late last week–ACCA has decided US v. Behenna.  That’s the case of the lieutenant who killed a naked, suspected terrorist in Iraq and was court-martialed for the death.  In affirming the findings and sentenced, the panel found no errors in the military judge’s denial of the trial defense counsel’s various motions, including a motion for a mistrial.

The service court found no Brady violation and no issue under RCM 701 or Art. 46, UCMJ, as the defense knew at some point relatively close in time to the formation of the potentially exculpatory evidence that the government’s expert witness (Dr. Herbert MacDonell) in forensic science (particularly crime scene reconstruction and blood spatter analysis) had potentially favorable information for the defense.  This evidence consisted of Dr. MacDonell’s forensic opinion that would have bolstered Behenna’s self-defense argument.

Given MacDonell’s curious statement to defense counsel concerning his ability to have been a good witness for the defense, the court noted the defense knew or should have known of the likelihood that the government expert possessed potentially helpful information, yet the defense chose not to pursue the issue until after the defense rested its case.  The court also found no problem with the trial counsel’s disclosure of MacDonell’s opinion as soon as trial counsel knew of the opinion.

Turning to the issue of the military judge’s denial of the trial defense counsel’s mistrial motion, the panel referenced RCM 915’s admonishment that mistrial motions are to be granted sparingly, and appellate courts will only overturn such determinations upon a showing of a clear abuse of discretion.  Finding none, the court moved on to the military judge’s denial of the defense motion for a new trial.  Similarly to RCM 915, RCM 1210 strictly limits the availability of a new trial.  One must show newly discovered evidence or fraud on the court, neither of which the trial judge found, and the panel reasoned the judge did not abuse his discretion in denying the new trial motion.

Ultimately, ACCA held that, even had Dr. MacDonell’s opinion testimony been before the members during findings, it would not have changed the outcome of the court-martial, particularly given the fact that the defense had 2 of its own expert witnesses testify along the same lines as MacDonell would have.

Next, the court turned to the matter of the judge’s instructions on self-defense.  The defense took issue with the military judge’s instructions on one’s ability to lose and regain the right to self-defense, but the panel found no error in the instructions under RCM 920 because Behenna’s ability to withdraw from the escalating situation wasn’t a matter in issue at the court-martial.

Finally, the panel addressed whether the military judge should have sua sponte instructed the members on the LIO of voluntary manslaughter.  Even with a de novo standard of review on this issue, the defense was out of luck.  Finding no adequate provocation to reasonably support the rage or anger needed to mount a voluntary manslaughter defense, the court also disposed of this issue in the government’s favor.

Our coverage of the Behenna oral argument is here.

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