One of our favorite readers just alerted us that CAAF has granted review in Behenna, No. 12-0030/AR, on these issues:

I.  Whether the military judge’s erroneous instruction limiting the right to self-defense deprived Appellant of his constitutional right to a fair trial.

II.  Whether the government’s failure to disclose favorable information to the defense deprived Appellant of his constittuional right to a fair trial.

United States v. Behenna, __ M.J. __, No. 12-0030/AR (C.A.A.F. Jan. 13, 2012) (order).

61 Responses to “BREAKING NEWS: CAAF grants review in Behenna”

  1. David Brandon says:

    Michael Behenna has been sitting in prison for almost 3 years waiting for justice to be done asking for a fair trial where all the evidence is actually heard.  Maybe….just maybe….he will finally get what he fought for on the fields of battle in Iraq – FREEDOM!
     

  2. Cap'n Crunch says:

    Not sure about the issue with the instruction.  However… the Brady violation is particularly eggregious.  I’d order a new trial, and issue a show cause order why the prosecutor should not be sanctioned before CAAF and turned into the state bar(s) for reciprocal discipline if I were on CAAF…

  3. truthwillsethimfree says:

    DB,

    Well said!  Freedom and Justice for All!  Maybe this is the start of the Leavenworth 9, then Leavenworth 8, etc….  

  4. Zachary Spilman says:

    the Brady violation is particularly eggregious. I’d order a new trial, and issue a show cause order why the prosecutor should not be sanctioned before CAAF and turned into the state bar(s) for reciprocal discipline if I were on CAAF…

    That’s one heck of a hard-line. Especially so when done in an anonymous post.

    The Army CCA’s opinion (which we posted here) was analyzed by NIMJ’s Michelle Lindo McCluer back in July. She wrote:

    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.

    I’ve put some key language in bold. It’s hard to say that the trial counsel’s actions were “particularly eggregious,” or to imply malfeasance and flippantly implicate the harsh consequences of professional discipline (a disturbing pastime for some, I’ve found), where there seems to be legitimate questions of fact in the underlying claim.

    During my day job, I often address errors committed by others, both lawyers and non-lawyers. I call these errors as I seem them in as matter-of-fact a manner as possible. However, I’m loathe to project malicious intent, or even dereliction, on the actions that created the error. After all, people make mistakes.

    When a military judge commits error, we do not rush to cry “judicial misconduct.” The same professionalism and objectivity should apply when reviewing the actions of counsel (on both sides of the bar).

  5. truthwillsethimfree says:

    ZS,

    The statement that you printed in bold is incorrect.  It goes to the heart of the violation.  The TC did not disclose the DR’s opinion as soon as they knew of it.  As a matter of fact, they were urged by the DR to turn his findings over on several occassions, which they did not.  This was only done after the conviction had been handed down.  As far as the defense pursuing the issue, they did during the initial trial.  The prosecution was asked both off the record and on about what the DR meant about the comments made as he left the courtroom.  All three prosecutors denied any knowledge of what the DR meant and stated that they had no further information to turn over to the defense.  The defense took them at their word since they are sworn officers of the court as well as officers in the same US Army as LT Michael Behenna.  The findings of the last court hearing was based on inaccurate statements by the prosecution.  I guess if you repeat the same misstatement of facts they start to be believed and become part of the trial record after the fact.  

  6. Why_can't_Bob_Stoops_clap_normally? says:

    I think the instruction issue has some legs – that he lost the right of self-defense because he possessed a firearm.  I think an instruction written for Garrison doesn’t work outside the wire.

    I think if counsel raises candor to the tribunal by prosecution based upon their comments in closing – the court might have the opportunity to lay out proper comments in a closing by the government.

  7. Zachary Spilman says:

    the [trial] military judge found that the trial counsel did not learn of Dr. MacDonell’s revised opinion until they were notified by civilian defense counsel the morning of Friday, 27 February 2009.

    In addition to the military judge’s’ factual findings, we find as follows. … The court closed for deliberations at 1656 and findings were announced at 2023 on 27 February 2009. That same day, Dr. MacDonell sent the trial counsel an e-mail setting forth his revised opinion. Trial counsel forwarded the e-mail to the defense immediately upon opening it.

    United States v. Behenna, No. 20090234, slip op. at 10-11 (A. Ct. Crim. App., Jule 21, 2011).

    The next inquiry is whether the third event, where the defense counsel exercised one of those avenues in a reasonable timeframe by asking the trial counsel what Dr. MacDonell’s statement meant, triggered an additional duty on the part of the government. Government counsel responded only “that they did not know, and, that they were unaware of any exculpatory information.” Both parties were now on notice that Dr. MacDonell had asserted he possessed defense favorable or exculpatory information within his area of expertise. At this juncture, either party could have taken action to stop or delay the proceedings while more information was obtained. Neither party chose to do so, at that time or anytime throughout the day. The [trial] military judge disagreed with the defense assertion that it was reasonable for the defense not to pursue further information based on the government statements. We rely on Carter in holding that based on Dr. MacDonell’s dircct statement to the defense, the government provided timely notice to the defense of favorable information and there was no violation of either Article 46, UCMJ; R.C.M. 701; or Brady

    United States v. Behenna, No. 20090234, slip op. at 13 (A. Ct. Crim. App., Jule 21, 2011) (emphasis added).

  8. truthwillsethimfree says:

    ZS,
     
    You need to reference your timeline above to prove what I have been saying.  You used a quote stating when the prosecution team “found out” about the DR’s findings for the first time.  Even though untrue, it states that they found out on Friday, even though they knew two days earlier.  The prosecution has never taken exception to the statements made in that email.  The DR urges them to turn over his findings the he described to them on Wednesday.
      
    Brady asserts that the prosecution must turn over evidence favorable to the defense as soon as the evidence comes to light.  At what point do you think that occurred?  On Wednesday afternoon, during a court recess in which the DR physically demonstrated to the entire prosecution team what the physical evidence showed ?  On Thursday afternoon in the courtroom, during the LT’s direct examination when the Dr told the prosecution team that the LT’s testimony fit the evidence that this was a self-defense shooting?  On Thursday evening, during another court recess when the DR was gathering his personal items to leave the courthouse as instructed by the prosecution team and again reiterated his findings from the physical evidence?  Anytime on Friday after the DR had returned to New York and sent an email back to the prosecution team almost begging them to turn over his findings?

    The LT’s counsel team was not privy to any of these conversations, reinactments, or correspondence.  All they had to go on was a one line comment, during a break between the direct and cross of the LT, from the DR (remember–a prosecution witness) that he was sorry that he was not going to testify as he would have made a good witness for the LT and that the prosecution team could enlighten him on what that meant.  This was followed up on during the rest of that break as well as when the court came back to order.  The DR was already in his cab heading for the Nashville airport.  The defense counsel trusted that the prosecution team was telling the truth when they stated under oath that they had no further evidence that needed to be turned over.  The judge determined that there was no need to stop the proceedings unless the defense could prove what the DR could testify about.  Without the information, which the prosecution was sitting on, this was not possible.

    The defense raised their objections multiple times about this issue but the MJ stood firm that the DR would not have added anything to the trial.  I don’t know about you but a prosecution witness that would have testified the the defendant was telling the truth and the prosecution’s theory of execution was incorrect would hold A LOT of weight in my decision as a jurist—NOT GUILTY!     

  9. k fischer says:

    Zach,

    TruthWSHF has a pretty good point. The Brady violation occurred when the Government’s expert described the incident to the TC, then reiterated it after Benhanna’s testimony.  The Government failed to disclose this favorable information to the Defense immediately.  As a former TC, if I were prosecuting an officer for unlawfully killing a known terrorist and my own expert told me that the accused’s story supports his opinion that he stated to me the previous day, I would feel duty bound to disclose it.   Whether it be because of Brady or that I would not want to second guess an officer and have an innocent man languish in Leavenworth, I would disclose it simply because it is the right thing to do.  It is also required under Brady.  I think that the failure to disclose it after the defense counsel asked about the expert’s statement about being a good witness for the defense, but only after the witness reminded the TC of Brady, makes me doubt the fairness of Benhenna’s trial, and gives me cause to ponder whether the TC should be investigated.

    As far as the MJ’s findings, I have seen MJ’s make similar findings of fact even when faced with the reality that a TC lied to the court.  I had a court martial where I was given late notice on a witness at 1600 hrs the day before trial, so I objected and accused the SVP of waiting till the last minute to notify me of the witness.  The SVP told the court they “immediately” notified me after they interviewed the witness.  When I prodded the SVP to define “immediately” (a very subjective term), he replied that it was within 15 minutes to an hour.  I interviewed the witness and he told me he was interviewed between 0900 and 1000 hrs the day before the trial, a full six hours before I was notified.  I proffered that information to the MJ who acted like there was nothing wrong with it and found on the record that the SVP was not trying to mislead the Court.

    I too like to give TC’s the benefit of the doubt, until I am convinced they are evil.  We’ll see what CAAF says.  Hopefully, the findings will be reversed and LT Behenna will receive a trial that is fair both in substance and appearance.

  10. Zachary Spilman says:

    The Brady violation occurred when the Government’s expert described the incident to the TC, then reiterated it after Benhanna’s testimony. The Government failed to disclose this favorable information to the Defense immediately.

    This issue is awfully fact-intensive, and at each stage (trial and CCA) the findings of fact have gone against the appellant. That’s not to guarantee that these findings are correct, but we have only the anonymous assertions of folks posting under handles like “truthwillsethimfree” (hardly a mark of objectivity) to contradict a record that is consistent at the trial and service court levels.

    Moreover, as I noted above, my issue is not with the assertion of error – there may well have been a Brady violation that warrants a new trial – but with Cap’n Crunch’s unreasonably hard line and call for professional discipline (especially when he does so anonymously). There may be good, faithful reasons why the trial counsel (team?) didn’t immediately tell the defense about Dr. MacDonell’s Wednesday-night hypothesis, even if that failure ultimately prejudiced a substantial right of the appellant.

    The Supreme Court’s recent opinion in Smith v. Cain is illustrative of this point. In that case, the prosecutors from the New Orleans district attorney’s office (a place already under close scrutiny by the Court for disclosure violations) committed a fairly egregious Brady violation. Yet the Court did not seek to quantify the prosecution’s motives (even though the NY Times reports that the lead prosecutor was sanctioned for misconduct by the Louisiana Supreme Court in 2005 in a different case). It simply stated the failure and reversed.

    Attorney discipline is a tricky thing, especially in the military. We’ve seen some of the sausage-making in the Partington dispute, and the comments aren’t pretty.

  11. stewie says:

    Well, I think everyone agrees that whenever a Brady violation is substantiated, it should be examined for PR issues.

  12. Zachary Spilman says:

    Sure, but this one has yet to be substantiated, and may not be.

  13. Rob M says:

    Every time this case pops up on CAAFLOG, we rehash the same issues.  Everyone gets worked up over the failure to disclose potentially exculpatory evidence, but seldom discusses the second part of the Brady test- the failure to disclose must have been prejudicial.  As both the trial judge and ACCA ruled, even if the defense’s version was true and Dr. MacDonnell’s testimony would have corroborated it perfectly, the way the accused described it could not legally constitute self defense, and the outcome of the trial would have remained the same. 

    Procedurally the grant of review makes it interesting because now it opens the way for a potential grant of cert; smarter minds than me can discuss the likelihood of such a petition being granted, whether CAAF reverses or affirms.

    As I know Mr. Scott Behenna has been known to appear on this forum whenever this topic comes up, once again I’ll say good luck, but please don’t get your hopes up. 

  14. stewie says:

    A. Zach that’s why I used the word “whenever.”
    B. Rob, that is a separate issue from whether or not it should have been revealed to defense under PR rules/ethically. Also, you may be right, might end up not being prejudicial, assuming it was error to begin with, but assuming error, then again, I think the lower courts, if it were that clear-cut, would have simply assumed error, and focused solely on prejudice, found none, end of the day. Nevertheless, if the facts are as the defense alleges, it should have been revealed earlier then it was. Again, if.

  15. k fischer says:

    It seems like a paradox to say that a Brady violation would not be prejudicial beyond a reasonable doubt.  I understand how it might not be in some cases.

    But, in the facts of this case, I don’t see how if CAAF determines that a Brady violation occurred, then it was NOT prejudicial beyond a reasonable doubt.

  16. Rob M says:

    Stewie,

    Agreed- just b/c it’s not reversible error doesn’t mean there were no pr/ethical violations.  One doesn’t necessarily preclude the other.

  17. Cap'n Crunch says:

    Mr. Spillman:  You are darned right that I am not going to express my opinions and use my God given legal name.  If I happened to advance an opinion critical of defense counsel, I need not worry about retribution; however, call a prosecutor unethical, and you get a witch hunt out of TJAG (ala Partington).  That same concern is why I’d refer the TC to the state bar (and not the TJAG process) for investigation and discipline.

    I have a particular problem with “hide the ball” games by trial counsel.  I treat, by the way, IAC claims are similar to Brady claims.  And, in each circumstance, you end up assessing the impact on a case based on Monday morning quarterbacking.  I believe, however, that the standard in Brady violations is harmless beyond a reasonable doubt, and, if fairly applied, that is not an easy standard to meet (or shouldn’t be).

  18. Don Rehkopf says:

    In the interests of reducing some of the speculation here, let me disclose that I have read those portions of the Record of Trial dealing with first the oral Motion for a mistrial, the mistrial hearing where Dr. MacDonell testified, and the subsequent Motion for a New Trial.  I also was counsel of record for an Amicus who participated in the Mistrial Motion process and suspect that I will be counsel for Amicus now that CAAF’s granted review.

    ALLEGATION:  To understand the Brady issue here, requires one to know just what the prosecution was alleging.  They claimed that the LT executed the Iraqi, while he was sitting down on a rock and the LT was standing over him.  That was the Government’s claim, and it was their argument on the merits.  The Defense was that the deceased, as the LT was momentarily distracted, leaped off the rock at the LT grabbing at his sidearm and as that was happening, the LT fired a 2 shot “burst.”

    PRELIMINARY FACTS:  From the beginning, the undisputed facts did not support the government’s theory — if as they claimed, the deceased was sitting on the rock when the LT allegedly shot him while standing over him, the trajectories of the 2 bullets would have been in a downward and and the one bullet that exited him, would have been on the ground behind him.  The problem was that the pathologists [note plural] agreed that the trajectories of each bullet was parallel to the ground and to each other — that was a “fact of consequence” that troubled Dr. MacDonell all along.  The other preliminary fact that was inconsistent with the government’s theory/allegations was that the bullet that exited the body hit the concrete culvert [where the incident took place] behind the body, and then dropped to the ground.  The Defense had also filed numerous, specific Discovery / Brady requests prior to trial.

    THE FACTUAL SEQUENCE OF THE BRADY ISSUE:
    1)  Wednesday, 25 FEB 09:  After court recessed for the day after hearing the defense experts’ testimony, the entire prosecution team (meaning the 3 TC, government paralegal and their experts) met to discuss the defense experts’ testimony.  Dr. MacDonell subsequently testified that he was troubled by the physical evidence not being consistent with the Government’s theory.  He stated that while “improbable,” the only factual scenario was that the deceased was standing, not sitting, when shot.  At this point in time, the LT had not testified and had never (believe it or not) made a statement about what had happened to anyone in the Army.  Dr. MacDonell then used a SGT paralegal to demonstrate his theory, i.e., had the SGT stand, while Dr. MacDonell pretended to shoot him first in the chest, and as he dropped to the ground the second shot “hit” him in the head — meaning that the bullet trajectories were parallel, and inconsistent with the prosecution’s “executed while sitting” theory.  ISSUE # 1:  Was this sufficient to trigger a Brady disclosure of “favorable” evidence?  It was not disclosed to the Defense on the 25th.

    2)  On Thursday, the 26th, the Accused testified, that while the deceased was sitting on the rock in the culvert being questioned by the LT, the LT was momentarily distracted and the deceased lept up at him grabbing at his pistol, when the LT fired twice – the first shot hitting him in the chest, the second in the head.  Dr. MacDonell, who was sitting in the courtroom with another prosecution expert (their pathologist as I recall), leaned over and told him, “that’s exactly what I told you guys yesterday” (or words to that effect).  There was a break between the Accused’s direct and cross and according to Dr. MacDonell, he met with the “prosecution team” and re-iterated his demonstration from the day before and again said, “while improbable,” it’s the only theory consistent with the facts.  The prosecution denied that he told them that then, but Dr. MacDonell testified under oath to that at the mistrial hearing and the prosecution called no witnesses to rebut it.  ISSUE # 2:  Did this trigger a Brady disclosure requirement if  # 1 did not?

    3)  At that point in time, seeing that Dr. MacDonell was not going to support the prosecution’s theory of “execution while sitting,” Dr. MacDonell (who was scheduled to fly back to NY on Friday, the 27th), was “excused” by the prosecution and changed his flight arrangements to Thursday evening.  Later on the afternoon of the 26th, while the Accused was still on the stand, but during a recess as Dr. MacDonell was getting his things together to leave, ran into the CDC and that’s when he made his now infamous remark, “I would have been a great witness for you.”  When pressed by CDC as to what he meant and why, Dr. MacDonell declined to give any more information — the recess ended, CDC went back into court and the Accused’s testimony continued.  ISSUE # 3:  Should CDC have “interrupted” the Accused’s testimony to pursue that ambiguous remark?

    4)  After the Accused finished testifying on the 26th, Court recessed and obviously Dr. MacDonell was not called as a prosecution witness — something that the defense discussed over supper.

    5)  The next morning [the 27th] prior to starting, CDC told lead TC of his cryptic conversation with Dr. MacDonell the day before and specifically asked her if Dr. MacDonell had any Brady information.  Lead TC expressly denied that Dr. MacDonell had any Brady information.  ISSUE # 4:  Was that an ethical violation?

    6)  During TC’s closing argument on the 27th, knowing of Dr. MacDonell’s demonstration on the 25th, knowing what he had told her on the 26th after the Accused’s direct testimony, TC argued that the LT shot the deceased while standing over him as he was sitting on a rock.  CDC, unaware of Dr. MacDonell’s demonstration and opinion, argued based on the physical evidence and their experts’ opinions, as above – the deceased was shot while leaping at the LT and going for his pistol.  ISSUE # 5:  Any ethical problems with the TC’s closing under the circumstances?

    7)  Meanwhile, Dr. MacDonell was “troubled” by his (as it turned out accurate) perception that his opinion would not be disclosed as Brady material, consulted both his own lawyer and a retired State Judge friend of his.  That lead him to send an email to TC on the 27th advising her that after consulting with his counsel, he felt that his as yet undisclosed opinion, was Brady material and should be turned over to the defense.  TC ultimately late in the evening forwarded MacDonell’s email to CDC, who did not see it until Saturday morning – meanwhile the Accused had been found guilty of unpremeditated murder.  At that point, CDC made an oral Motion for a mistrial, the court conducted a hearing where only Dr. MacDonell testified and no rebuttal evidence presented by the Government.

    8)  Over defense objection, the Court reserved and proceeded to sentencing.

    Those are the “facts” in the Record, ACCA’s version notwithstanding.

  19. Zachary Spilman says:

    Thanks Mr. Rehkopf. That’s a great summary.

  20. stewie says:

    The point is fairly made that given the totality of the circumstance and what happened before, even if the government’s version was wrong, and the guy did leap up off the rock, what the accused had done beforehand removed the ability of him to claim self-defense.

  21. Ama Goste says:

    …and that gets us to the instructional issue, Stewie.

  22. Why_can't_Bob_Stoops_clap_normally? says:

    The majority of my civilian federal practice is in civilian federal court – if the non-disclosure would have affected sentencing – then it has the same prejudice. Considering he received initially 25 years – much more than other similar cases – it would seem this evidence would have had some impact on the sentence.

  23. Scott Behenna says:

    ROB M, thanks for the encouragement. I think I have had my say on the CAAFLOG and will sit back and watch the debate. I will say that I am extremely glad that you, Ana Goste, and SoonerGrunt were all wrong about Michael’s appeals ending at the ACCA. There are never any certainties, but neither the Trial Judge nor the ACCA have used the correct facts as stated by Mr. Rehkopf. If you begin with incorrect facts, often you get an incorrect result. 
    It will be interesting how the CAAF evaluates the fact the Trial Judge inserted a self-defense instruction, but in the mistrial motion the TJ said the new evidence (Dr. MacDonell’s testimony) would not have mattered because the panel could have found LT Behenna lost his right to self-defense. I believe that only the panel could evaluate how MacDonell’s testimony would have influenced their determination of self-defense, and MacDonell’s testimony would have went directly to the heart of that issue.
    Mr. Rehkopf, thanks for such a concise review of the true facts. You might add that after learning of MacDonell’s theory matching Lt Behenna’s testimony, the TC in closing arguments stated that LT Behenna’s version of the facts (Mansur standing to take his weapon) was “impossible” and “self-serving”. Another ethical and legal problem?

  24. Zachary Spilman says:

    Accepting the facts as Mr. Rehkopf states them above as true, I wonder what principle of law requires a prosecutor to disclose a self-admitted “improbable” theory proposed by a non-testifying individual? If the government has a duty to disclose Dr. MacDonell’s opinion once known to it, does the government not therefore have a duty to disclose other “improbable” (one could say “wacky”) theories, such as those advanced by bloggers?

    “Under Brady, the [government] violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.” Smith v. Cain, __ US __, slip op. at 2 (January 12, 2012).

    Dr. MacDonell was a guy, who didn’t testify, with a theory. That he was paid by the government isn’t dispositive – lots of people are paid by the government and have theories. Perhaps the prosecution team decided, once they saw his demonstration, that he wasn’t credible? The government’s closing argument certainly supports this point.

    I remain troubled by the specter of ethical violations. If the course of events amounts to an ethical violation – and I’m certainly not saying it did – is this relevant to the granted issue? I suspect not, as Brady is a matter of process, not of ethics. But, if appellate counsel raise spurious claims of “prosecutorial misconduct” merely to inflame the passions of the court, I’d be concerned.

  25. Cap'n Crunch says:

    If I were appellate defense counsel, I wouldn’t pursue the ethical issues with the TC in the briefing — not explicitly anyways.  However, you have to state the facts and make the case that there was a Brady violation and that necessarily means that you have to dig into what the prosecution team knew and when they knew it.  In every state that I am aware of, there is a PR rule that deals with prosecutors duties, and there is a duty to disclose favorable material evidence to the accused.

    Based on Mr. Rehkopf’s version of the facts, I don’t see a Brady violation at point #1, but I think it was clearly the case at point #2.  Nor do I believe that the accused’s possession of a firearm negates a self-defense theory.  If the bad guy is charging at you and going for your firearm, I believe you have the ability to use lethal force, since you reasonably and actually have a fear for your life.

    RCM 916:

    (A) Apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and
    (B) Believed that the force the accused used was necessary for protection against death or grievous bodily harm
    I think that these elements are met if a prisoner jumps up, lunges, and attempts to seize someone’s weapon.  And I believe the prosecution was aware that the opinions were material at the point that the accused testified.  Likely or not, probable or not, these are simply things that go to the weight of the evidence, not to the notion of it being favorable to the accused and material.

  26. Dwight Sullivan says:

    “[W]hen you have eliminated the impossible, whatever remains, however improbable, must be the truth.”  Sherlock Holmes from The Sign of the Four (1890).  

  27. Dwight Sullivan says:

    Let’s consider for a moment how we would want a justice system to perform.  One of the individuals in the courtroom is supposed to be not merely an advocate for his or her side, but the champion of a fair and accurate resolution of the case.  That individual hires a renowned expert who says, in essence, “In my opinion, your theory of what happened is inconsistent with the physical evidence in the case.  But here’s an alternative possibility that, while improbable, is consistent with the physical evidence.”  That opinion was directly within the area of expertise that led the champion of a fair and accurate outcome to hire him.  The next day, the accused testifies.  The accused has no knowledge of what the expert said the previous day.  The accused proceeds to describe a scenario that is consistent with what the expert told the champion of fairness the previous day and that provides a logical explanation for how the improbable scenario could have occurred.  In such a case, do we want the champion of fairness and justice to tell the other side, “Hey, the individual whose expertise in just such matters led us to hire him has expressed an expert opinion that your client’s testimony is consistent with the physical evidence in the case”?

    Would it influence your answer if you were told that in the above scenario, you were either the champion of justice, the defense counsel, or the accused, but you wouldn’t be told which of those roles you play until after you provide your answer?  See generally John Rawls, A Theory of Justice (1971).

  28. publius says:

    Doesn’t defense counsel’s access to the witness cure the Brady problem here, and answer Col Sullivan’s question?

    Defense counsel had access to the governement expert, correct?  Defense counsel had been notified that the expert was scheduled to testify and had been afforded an opportunity to interview the expert, correct?  Whatever the result of defense counsel’s pre-trial interviews with the expert, nothing prevented defense counsel from re-interviewing the expert after trial counsel stated the expert would not be testifying, correct?  Nothing prevented defense counsel from re-interviewing the expert after his cryptic “I would have been a great witness for you” remark, correct?  Those are two enormous red flags, neither of which defense counsel followed up on. 

    Presumably, defense counsel had interviewed the expert before trial.  If defense counsel choose not to, or forgot to, run the accused’s expected testimony by the expert and therefore did not elicit favorable information from the expert, that’s unfortunate. So too is defense counsel’s inaction after the expert’s remark about potentially helping the defense. But I can’t see how either situation involves an ethical violation by trial counsel.  IAC is a better theory.

  29. Rob M says:

    Does anyone know when/if oral argument has been scheduled?

  30. truthwillsethimfree says:

    Rob M,

    Arguements will be scheduled when all briefs filed.  LT has 30 days and then US Army has 30 days to respond.  Then a date will be scheduled barring any extra time requested and granted to either side.  

  31. stewie says:

    “Nor do I believe that the accused’s possession of a firearm negates a self-defense theory.”
    I could be incorrect, but I don’t believe the issue negating self-defense is mere possession of a firearm. This is not a simple case of a bad guy charging an armed Soldier. If it were this wouldn’t even be a court-martial, much less a conviction. It’s about the Soldier’s criminal actions prior to this event which stripped him of the ability to claim self-defense during this event.

  32. Zachary Spilman says:

    Doesn’t defense counsel’s access to the witness cure the Brady problem here

    You mean to say the defense bears some burden in pursuit of its theory of the case?

    Presumably, defense counsel had interviewed the expert before trial.

    An interesting notion. Tell me more.

    IAC is a better theory.

    Now you’ve done it.

  33. Why_can't_Bob_Stoops_clap_normally? says:

    And if a defendant confesses, you don’t have to turn over that statement either since the defense counsel has access to the accused?

  34. stewie says:

    So by that logic, if the alleged rape victim tells the government, it might not have happened, then so long as the government provides the rape victim to the defense to interview, they aren’t required to reveal that fact to defense that the alleged rape victim said it might not have happened at all?
    I mean a bit more egregious example but the principle doesn’t change.

  35. publius says:

    If she’s not sure it occurred, why is the government going forward?

  36. stewie says:

    I didn’t think I’d get a quibble with the premise of the hypo, but ok swap out a witness to the event or a friend of the alleged victim or any situation where they tell the government something contrary to their theory or supportive of the defense theory and then say well defense could have talked to them, we aren’t required to reveal that exculpatory statement.
    This isn’t something obvious on its face, like a document, that you can say defense is in possession of, this is a statement that only the government knows about.

  37. ksf says:

    Stewie,
    What did Behenna do to the guy to remove self defense in a shoot where a guy is grabbing for your weapon?
    ksf
     

  38. Dwight Sullivan says:

    Publius, if Don’s recitation of the facts is accuarte, then it’s not correct that “[n]othing prevented defense counsel from re-interviewing the expert after his cryptic ‘I would have been a great witness for you” remark'” or that defense counsel did not follow up on “two enormous red flags.”  Rather, according to Don’s recitation of the facts, “[w]hen pressed by CDC as to what he meant and why, Dr. MacDonell declined to give any more information.”  So the defense attempted to reinterview the expert, who declined to be reinterviewed.  The following morning, according to Don, “CDC told lead TC of his cryptic conversation with Dr. MacDonell the day before and specifically asked her if Dr. MacDonell had any Brady information.  Lead TC expressly denied that Dr. MacDonell had any Brady information.” Again, that would inconsistent with the notion that the defense counsel failed to follow up on the remark.

  39. Zachary Spilman says:

    Stewie, What did Behenna do to the guy to remove self defense in a shoot where a guy is grabbing for your weapon? ksf

    Other than beating him about the head and shoulders with his kevlar prior to detaining him, then taking him to a culvert in violation of a lawful order to release him, then stripping him naked by cutting off his clothes with a knife, then pointing his pistol at him?

    There’s nothing about this case that isn’t incredibly sad, but let’s not kid ourselves.

  40. Don Rehkopf says:

    Let me “supplement” a few facts to provide (hopefully) some more clarity.

    1)  Remember that the LT had made no pretrial statements to anyone in the Army, so no one really knew just what he was going to say.

    2)  There were no eyewitnesses to the shooting – the LT’s Squad Leader [SSG Warner] was 35 to 50 meters away [depending on which version of his story is used], with his back to the culvert relieving himself in some bushes.  The LT’s interpreter, testified that it was dark, no lighting and that he was about 10 meters from the LT at an angle and did not see what, if anything happened before the shots.

    3)  SSG Warner appears to have been the cornerstone of the prosecution’s “execution” theory.  Testifying under a grant of immunity after his own court-martial, he incredibly claimed that after the first shot, but before the second, he ran the 35-50 meters to the culvert and allegedly saw the LT fire the second shot, 3 seconds after the first one.  Aside from the fact that if true, NFL scouts would be drooling over his running ability with full combat gear and 300 rounds of ammo and a number of grenades, his cross examination went like this:

    Q. [Y]ou didn’t see the Lieutenant pull the trigger or who pulled the trigger on the first shot?
    A. No, sir, I did not.

    Q. And you didn’t see who pulled the trigger on the second shot?

    A. No, sir, I did not.

    Q. And you don’t know why either shot was fired?

    A. No, sir, I do not.

    Q. You didn’t see any activity that occurred or whatever that was before the first shot?

    A. No, sir.

    Q. Or whatever activity occurred before the second shot, you didn’t see it?

    A. No, sir, I did not.

    Q. And you don’t know why the trigger was pulled on either occasion?

     

    A. Sir, I can’t speculate; no, sir.  (R. 904.)

    4)  Dr. MacDonell had not yet formulated an expert opinion at the time the trial started.  It was during the defense pathologist’s testimony about the bullets’ trajectories being both parallel to the ground and to each other, and his opinion that (a) the deceased was standing with his arm outstretched when the first shot hit him in the chest; and (b) that as he dropped the second shot hit him in the head.

    5)  Dr. MacDonell testified that Dr. Radelet’s (defense forensic pathologist) testimony caused him to rethink the scenario, causing him to look at some of the physical evidence again.  It was at that point on Wednesday evening that he came to his conclusion that the deceased had to have been standing when shot, and the second shot, not the first, hit the deceased in the head.  Hence his now famous “demonstration.”

    6)  The TC had advised the defense at some time prior to this that they were going to use Dr. MacDonell as a rebuttal witness.  The defense had in fact interviewed Dr. MacDonell prior to trial, but at the time he did not have a firm opinion on just what had happened and in what sequence.  Remember, that the court-martial was on-going and the Accused was still on the stand when the defense learned that Dr. MacDonell was leaving to return home and as he was going out of the court-house, is when he made his statement about being a “great witness” to CDC.  At that point, the recess was over and court called back into session.

    7)  But in response to Publius, CDC did attempt to get Dr. MacDonell to explain what he meant by his remark and Dr. MacDonell believed (erroneously or not) that he could not discuss his “confidential” opinions to the TC to the defense if he was not being called as a witness.  Under the “work-product” rule, he may have been correct – the issue being does Brady trump that.  The defense was not “inactive” after the remark – they specifically asked Dr. MacDonell to explain himself, he declined.  And prior to court starting the next morning is when CDC asked TC whether or not Dr. MacDonell had any Brady information or “favorable” information.

    8)  Here’s the crux of the problem imho – the TC’s response, repeated in the Goverment’s Brief at ACCA was that “they had turned over all exculpatory evidence.”  Brady applies to “favorable” evidence which is broader than “exculpatory” evidence.

    9)  To be sure (and to be fair) Dr. MacDonell also admitted that there could be other scenarios, but because of the scene degradation [SSG Warner had tossed a thermite grenade on the body before leaving] that “anything was possible” to include the government’s theory.  The problem here is that the Government called no witnesses to rebut either the defense forensic pathologist nor the defense scene-reconstructionist [ironically who had been trained by Dr. MacDonell], nor the LT’s testimony.

    10)  ZS:  Two comments.  First, Dr. MacDonell was no just “some guy” “with a theory.”  He was the government’s retained expert on scene-reconstruction.  Second, I think the key here is not the generalization does the government have to turn over “whacky theories” [leave that to another day], but here there’s an added element.  Dr. MacDonell’s expert opinion — even if “whacky” or “improbable” was consistent with the defense experts’ opinions and the accused’s testimony — that is what I think made it material to the defense in this case.

    Finally, in the context of “ethics” issues, in the context of prosecutor’s Brady obligations there is an intertwined ethical issue that cannot be ignored.  See ABA Formal Opn. 09-454, available here:
    http://federalism.typepad.com/files/prosecutors-duty-to-disclose-evidence-and-information-favorable-to-the-defense.pdf 

    Whether or not it’s the tail that wags the dog or whether it is just a component of the “Due Process” Brady commands, is something that CAAF no doubt will be interested in.

  41. Dwight Sullivan says:

    Follwoing up on my previous response to Publius, the facts that I mentioned from Don’s synopsis are consistent with the military judge’s findings of fact as adopted by ACCA (here’s a link:  http://www.caaflog.com/wp-content/uploads/US-v-Behenna.pdf).

    [all alterations made by ACCA]

    At approximately 1700 on Thursday, while the [c]ourt was closed to deliberate on an issue concerning [Military Rule of Evidence [hereinafter Mil. R. Evid.]] 301, and just prior to Dr. MacDonnell leaving the coutroom, Dr. MacDonnell informed [civilian defense counsel] that, “I would have made a great witness for you” our words to that effect.  When [civilian defense counsel] asked what his testimony might be, Dr. MacDonnell informed the [d]efense that he could not divulge any information to the [d]efense, as he had been retained by the [g]overnment.

    Slip op. at 9.  So it’s not true that the civilian defense counsel did nothing following the comments from Dr. MacDonnell.  Nor is it true that nothing prevented the defense from reinterviewing him.  The defense tried but Dr. MacDonnell refused.

    Then, just as Don indicated, the defense brought up the matter the following morning with the trial counsel.  Again from the ACCA opinion’s adoption of the military judge’s findings:

    On Friday, 27 February 2009, prior to the start of the court that morning, [civilian defense counsel] informed [g]overnment counsel about Dr. MacDonnell[‘s] statement and asked what he meant by it.  Government counsel responded that they did not know, and taht they were unaware of any exculpatory information.

    Slip op. at 10.  The military judge and ACCA found that this response was honest and sincere “albeit inaccurrate.” Given that Dr. MacDonnell had presented a scenario almost identical to that presented by the accused’s testimony during a meeting with the prosecution team on Wednesday night, one might reasonably conclude that the trial counsel knew, or at least should have known, that Dr. MacDonnell could have presented evidence helpful to the defense.

  42. publius says:

    Regarding whether DC’s follow up to the expert’s remark was sufficient, it seems that reasonable minds can differ.  So too, at this point anyway, whether Brady trumps the work-product privilege.

  43. Phil Cave says:

    1.  In the ABA article Don alludes to is this comment.
    Over the course of more than 45 years following  Brady, the Supreme Court and lower courts issued many decisions regarding the scope of prosecutors’ disclosure obligations under the Due Process Clause.  The decisions establish a constitutional minimum but do not purport to preclude jurisdictions from adopting more demanding disclosure obligations by statute, rule of procedure, or rule of professional conduct.

    2.  CAAF say:

     Discovery practice under Article 46 and R.C.M. 701 “promotes full discovery . . . eliminates ‘gamesmanship’ from the discovery process” and is “quite liberal . . . . Providing broad discovery at an early stage reduces pretrial motions practice and surprise and delay at trial.” Manual for Courts-Martial, United States (2002 ed.), Analysis of Rules for Courts-Martial A21-32. The military rules pertaining to discovery focus on equal access to evidence to aid the preparation of the defense and enhance the orderly administration of military justice. To this end, the discovery practice is not focused solely upon evidence known to be admissible at trial. See United States v. Stone, 40 M.J. 420, 422 (C.M.A. 1994)(citing United States v. Lloyd, 301 U.S. App. D.C. 186, 992 F.2d 348, 351 (D.C. Cir. 1993)). The parties to a court-martial should evaluate pretrial discovery and disclosure issues in light of this liberal mandate.
    See United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).

    IMHO that is consistent with a broader approach under Brady as well as all discovery rules.

    3.  CAAF further quotes, “The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor[.]” Kyles v. Whitley, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).

    That is sufficient to require the disclosure, whacky or not.  And there is this piece in Don’s ABA piece
     In particular, Rule 3.8(d) is more demanding than the constitutional case law, in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome.  The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.
     I can’t find the quote, but there is a case or two where the courts opine that the defense counsel is best placed to judge the usefulness of any discovery materials.  That thought goes hand in hand with disclosure as the default mode.
    3.  The TC who learns of statement(s) contradictory to prior written statements, investigator interview notes, or Article 32 testimony, who then relies on the defense ferreting out that same information during their own investigation is violating Brady and Kyles IMHO.  It’s not whether the defense can (and hopefully will) find out the same information through their own investigation that triggers Brady or Kyles.

    4.  The idea that Dr. Macdonald would not be a credible witness is incredible and whacky.  He is one of the founding fathers of crime scene reconstruction.  As Don notes many of the best in the country have studied with him.  His status and stature in the forensic crime reconstruction community is the exact reason his testimony would be compelling in any case he were called to testify in.  And to paraphrase Don, are people arguing that the government picked an expert who wasn’t among the best and would not be a credible witness?  To quote a judge I had a while back, that dog don’t hunt.

  44. Dwight Sullivan says:

    Publius, it looks like you are moving the goal posts.  You previously wrote of “defense counsel’s inaction after the expert’s remark about potentially helping the defense.”  You also wrote of “two enormous red flags, neither of which defense counsel followed up on.”  Now you write that reasonable minds can differ as to “whether DC’s follow up to the expert’s remark was sufficient,”  Your previous assertions didn’t challenge the sufficiency of the defense’s follow-up.  Rather, you asserted (wrongly) that there was no follow up.

  45. publius says:

    I plead guilty to rhetoric re “no follow up”.

    Generally, I’m in agreement with Zach.  This one seems to me to be in a very gray area, and litigators ought to get the benefit of the doubt in gray areas.   There’s a live ethics accusation against TC for making a judgment call about the nature of the statement the expert had made during trial prep.  If DC had been a bit more zealous regarding the expert’s subsequent remark to DC, this ethics issue may not be alive at all.  It wouldn’t do to assert that defense counsel created its own issue here, so I won’t.

  46. Zachary Spilman says:

    In light of the excellent debate above, I restate my initial point:

    It’s hard to say that the trial counsel’s actions were “particularly egregious,” or to imply malfeasance and flippantly implicate the harsh consequences of professional discipline (a disturbing pastime for some, I’ve found), where there seems to be legitimate questions of fact in the underlying claim.

    During my day job, I often address errors committed by others, both lawyers and non-lawyers. I call these errors as I see them in as matter-of-fact a manner as possible. However, I’m loathe to project malicious intent, or even dereliction, on the actions that created the error. After all, people make mistakes.

    When a military judge commits error, we do not rush to cry “judicial misconduct.” The same professionalism and objectivity should apply when reviewing the actions of counsel (on both sides of the bar).

  47. Dwight Sullivan says:

    To me, the important issue is not whether any of the counsel committed a professional responsibility infraction, but rather whether the accused received a fair trial.  I’m sure that will be CAAF’s focus when it reviews the case.

  48. stewie says:

    Zach, not even Brady issue or PR issue involves “malfeasance” or “malicious intent.” In fact, most probably don’t. I think that’s a red herring that distracts from the issues here. Yes, people make mistakes, but sometimes, those mistakes have consequences, like the guy who mistakenly thinks he’s ok to drive when he’s had one too many.
     

  49. stewie says:

    every, not even
     

  50. Phil Cave says:

    Apply Hanlon’s Razor by all means.

    And then read United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).  I believe this is the case My Liege DHS was thinking of, that and Smith v. Phillips, 455 U.S. 209 (1982), cited in Thompkins.  I usually find myself citing to Thompkins when the TC claims inexperience, the MJ says fair enough, but then doesn’t take the next one or two steps necessary to address the error, caused by inexperience or not.   

  51. Dew_Process says:

    Don’t forget Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (an accused demonstrates a Brady violation by “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”).

  52. Rob M says:

    To me, the important issue is not whether any of the counsel committed a professional responsibility infraction, but rather whether the accused received a fair trial. I’m sure that will be CAAF’s focus when it reviews the case.

     Agreed- it seems like that gets lost in this debate every time it comes up.   The conduct of the prosector usually eclipses the debate about whether it was legally self-defense or not (the heart of the prejudice issue).

  53. Scott Behenna says:

    Zachary Spilman wrote:Zachary Spilman(Quote)
    “In light of the excellent debate above, I restate my initial point:
    It’s hard to say that the trial counsel’s actions were “particularly egregious,” or to imply malfeasance and flippantly implicate the harsh consequences of professional discipline (a disturbing pastime for some, I’ve found), where there seems to be legitimate questions of fact in the underlying claim.
    During my day job, I often address errors committed by others, both lawyers and non-lawyers. I call these errors as I see them in as matter-of-fact a manner as possible. However, I’m loathe to project malicious intent, or even dereliction, on the actions that created the error. After all, people make mistakes.
    When a military judge commits error, we do not rush to cry “judicial misconduct.” The same professionalism and objectivity should apply when reviewing the actions of counsel (on both sides of the bar).”
    ZS and Rob M,
    I do agree with you that mistakes are made by lawyers in the courtroom and all cannot be labeled malicious, but the prosecutors actions or inactions can cause harm. I know that would not be a popular view on this web site, but let me explain.  The prosecutors have all their experience to draw on, comfortable surroundings, all the time they need to deliberate, consult with others, and research materials to make their decisions. But the consequences of their “mistakes” can land a Soldier in prison for many years. How does the falsely accused and imprisoned Soldier later recover those lost years in prison caused by the lawyers mistakes?
     
    However, the soldier deployed in a war zone who makes mistakes under severe stress and matter of seconds, and in fear for their lives or others soldier’s lives are quickly prosecuted, imprisoned, and second-guessed for years. Many times as in Michael’s case, there are not only legitimate questions of fact for the panel, but what facts the prosecutors and CID dealt with before it went to trial. In this case they ignored the obvious facts of self-defense that did not align with the theory of execution, including only providing parts of the evidence to their heralded expert who did not learn of ALL the known evidence until he arrived at trial. Had they given all the known evidence to him prior to trial, maybe the trial about executing the terrorist could have been avoided, as he most likely would have come to his now famous conclusion ahead of time that the terrorist was most likely coming towards Michael. What excuse could you have for not turning over all the evidence to your forensic expert for which you hired for a forensic opinion? Please keep in mind that the MJ asked all three prosecutors twice each if they wished to be sworn to testify about MacDonell’s damning statements impugning their credibility and integrity. If MacDonell were making false allegations of you as an officer of the court, wouldn’t you defend yourself either through testimony or at least a sworn affidavit? At no time did these lawyers ever take the stand in their own defense, nor offer anything that disputed what MacDonell said about them. Remember, the only evidence in the court record about what MacDonell told the prosecutors about their private meetings on several occasions is the testimony of MacDonell.
    If this trial were about loss of self-defense instead of execution, I suspect it would have been conducted much differently from both sides.
     
    If the Army believes in the theory that prison punishment is for the “good order and discipline” of the accused, and to serve as an example so others don’t make those mistakes, and officers should be held to higher standard, then perhaps military lawyers in the same organization should be held to that same standard and punished similarly with prison when their “mistakes” cause harm to others. Maybe that sounds a little farfetched, but I would argue that Michael is not being held in prison because he is a deviant, but because of the reasons stated above. So similarly, would prison sentences also make prosecutors look at these cases more closely before moving forward on specific crimes, or not disclosing evidence to the defense.  I would argue that Michael is no more of a threat to society at this point than any of the prosecutors involved in his case, and Michael’s actions would never be duplicated in the civilian world.
    If the CAAF finds the prosecutors did nothing wrong in Michael’s case then so be it. However, if the prosecutors actions or inactions caused this case to go awry, then possibly the Army should consider their “good order and discipline” theory of punishment for a prosecutor to prevent mistakes or violations the UCMJ code that harm our soldier’s futures.

  54. Lieber says:

    Part of the problem with the self-defense theory is that the victim appears to have been an innocent man. There is no evidence linking him to the insurgency other than a local apparently fingering him to settle scores. 

  55. Why_can't_Bob_Stoops_clap_normally? says:

    It seems I heard that the DC was also never given a copy of the 15-6 investigation as well. 

    Any truth to that?

    DR’s position that the expert did not form the opinion until trial may not be correct.  I believe he may have proposed the same scenario prior to trial and when he heard the accused’s testimony is when it became relevant.

  56. Cap'n Crunch says:

    Can someone explain to me what the status of the “victim” in this matter, prior to the incident, was or was not?  My point is this… let’s assume that the detainee who was killed was 100% innocent and should not have been detained or mistreated.  Lets further assume, then, we should not have been holding him.

    But then, notwithstanding the status of the “victim” prior to that point in time, our “victim” charges at LT, who is armed, and who reasonably perceives that the “victim” is attempting to seize his firearm.  I think, at that point, under RCM 916, you have reasonable apprehension of death or grievous bodily harm that is about to be inflicted and a belief that lethal force is necessary to prevent same.  I am unaware of any rule or tenet of law that provides that the wrongful capture or incorrect holding of a detainee authorizes that detainee to use deadly force or to threaten same.

    RCM 916
    (A) Apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and
    (B) Believed that the force the accused used was necessary for protection against death or grievous bodily harm

    So I am back to this… IF the LT’s version of the facts (now bolstered by the expert witness opinion that the government failed to turn over) are correct, then it seems to me that he was entitled to the instruction on self-defense and there was a Brady violation.

  57. stewie says:

    The victim has the right self-defense yes? The problem here is that he was to be released, and that he was deemed not a terrorist by the folks above the accused. In effect, he basically ignored that and held him without authority, for all intents and purposes, kidnapped him. If true, and I realize I am greatly simplifying the facts of the case, then no, he doesnt have the right to self-defense when his captive tries to overpower him to escape. He lost it through the illegal acts he did prior. Simply charging him or making a move in his direction does not justify shooting because just maybe  he might get your gun, not when there are others in the area and more importantly not when you aren’t supposed to detaining him at all.
     

  58. SGT_Hulka's_Big_Toe says:

    For self defense to exist, the accused must have had a reasonable apprehension that death or grievous bodily harm or some lesser degree of harm was about to be inflicted on himself, and he must have actually believed that the force he used was necessary to prevent death or harm to himself….

    So whether or not “higher” thought Mansur was a terrorist is really irrelevant.  Would it not be the accused’s Point of View. 

    Next question, is if this is a “mutual fight.”  If yes, then the court says something like….

    “The accused, under the pressure of a fast moving situation or immediate attack, is not required to pause at his peril to evaluate the degree of danger or the amount of force necessary to protect himself. In deciding the issue of self defense, you must give careful consideration to the violence and the rapidity, if any, involved in the incident.

    There exists evidence in this case that the accused may have been a person who voluntarily engaged in mutual fighting. A person who voluntarily engaged in mutual fighting, is not entitled to self defense unless he previously withdrew in good faith. The burden of proof on this issue is on the prosecution. If you are convinced beyond a reasonable doubt that the accused voluntarily engaged in the mutual fighting, then you have found that the accused gave up the right to self defense; however, if you have a reasonable doubt that the accused voluntarily engaged in the mutual combat, then you must conclude that the accused retained the right to self defense and then you must determine if the accused actually did act in self defense.”

  59. stewie says:

    Actually the evidence is that the accused illegally detained, and held unlawfully the victim, at gunpoint. Yes, it does matter that higher thought him not a terrorist, because it was that determination that preceded the order to release him that the accused ignored.
    Once you are effectively holding someone hostage, you can’t possibly use the defense of self-defense, particularly when you are armed, and he is not. If he’d released him, and then the victim came after him after freed, then it might be different.
     

  60. Zachary Spilman says:

    Article 3

    In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

    1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

    To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

        (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

        (b) Taking of hostages;

        (c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

        (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

    2. The wounded and sick shall be collected and cared for.

    An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

    The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

    The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

  61. Phil Cave says:

    Understand the U.S. may be violating common article 3 at Gitmo, but shouldn’t everything just follow the KIS principle.  Why import foreign law?