On Monday CAAF will hear oral argument in the case of United States v. Behenna, No. 12-0030/AR, which made it into our list as part of #3 in the Top Ten Military Justice Stories of 2011 and all of #5 in the Top Ten Military Justice Stories of 2009. 1LT Behenna was convicted in March 2009 of unpremeditated murder and assault consummated by a battery in connection with the shooting death of a detainee in Iraq, and sentenced to confinement for 25 years (reduced by the convening authority to 20 years, and then by the clemency and parole board to 15 years).

There are two issues before CAAF:

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 constitutional right to a fair trial.

During the trial, a government expert (Dr. MacDonell), who did not testify, told the defense counsel “I would have made a great witness for you.” The expert departed, but the next day, post-findings, he sent trial counsel an email saying that the accused’s testimony was consistent with the forensic evidence, and that had he (the expert) testified, “it would not have been helpful to the prosecution case.” The trial counsel disclosed this email to the defense, which moved for a mistrial. That request was denied. Additionally, the defense objected to the military judge’s proposed instruction to the members regarding the right to self-defense. That objection was also denied.

The issues before CAAF were also considered by the Army CCA, which rejected them and affirmed the findings and sentence in July 2011.

On the first issue, the appellant’s argument is that the military judge’s instruction to the members, that if they found that the appellant committed an assault against the victim then the appellant lost his right to self-defense, was erroneous because it presumed an assault was committed when the government presented no evidence of an assault (the assault conviction involved acts on a different day), and because it was “hopelessly confusing and convoluted.” Appellant’s Br. at 17. The government disputes this, arguing that the members were presented sufficient information and instructions to enable them to determine if the appellant assaulted the victim, especially considering the “context of the facts in evidence.” Gov’t Br. at 20. The government also parses the instruction to show that it was not confusing.

On the second issue, the appellant’s argument is that he did not receive a fair trial because the government failed to disclose that its retained scene reconstruction expert decided that the appellant’s version of the events immediately prior to the shooting were consistent with his own reconstruction. Because the expert did not testify and also refused to disclose his opinion to the defense, the appellant argues that he was unable to present this information to the members and use it to rebut the trial counsel’s closing argument that included characterizing the appellant’s version as “impossible.” Appellant’s Br. at 19-20. The government argues that the expert’s statement at issue was not discoverable, because (as concluded by the trial military judge during a hearing on the issue) the expert’s original opinion contrary to the appellant’s version never changed, and his “revised conclusion would be impermissible testimony because it was based upon his assessment of the appellant’s credibility [while testifying].” Gov’t Br. at 44. The government also argues that even if disclosure was required, it was made to the defense in a timely fashion. Finally, the government argues that the law of the case doctrine should preclude the appellant from his implicit argument that the trial counsel’s closing argument was improper.

In a reply brief, the appellant, inter alia, analogizes this case to cases involving police officers who use deadly force against suspects.

The case attracted two Amicus briefs, one from the Nation Association of Criminal Defense Lawyers (NACDL) and one from the National Institute of Military Justice (NIMJ). Both address the second issue – the government’s alleged disclosure violation – and argue in favor of the appellant.

Case Links:
Blog post: Behenna gets 25 years at GCM
Blog post: TWIMJ – 5 Dec 10 (ACCA hearing)
Blog post: ACCA argument recap
ACCA opinion (CAAFlog link)
Blog post: ACCA opinion analysis
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
NACDL’s amicus brief
NIMJ’s amicus brief
Blog Post: Argument preview

One Response to “Argument Preview: United States v. Behenna, No. 12-0030/AR”

  1. Jack is a lousy softball player says:

    Among other things – this would be a good opportunity for the CAAF to address how such failure to diclose would be also be prejudicial at sentencing. The original sentence of 25 years seems off when looking at other cases.