Opinion here. Judge Stucky writes for a majority in a 3-2 split, affirming ACCA (denying relief):

We granted review in this case to determine whether the military judge provided complete and accurate self-defense instructions, and whether the Government failed to disclose favorable and material information to Appellant’s prejudice. We hold that, although the military judge’s instruction on escalation was erroneous, it was harmless beyond a reasonable doubt because escalation was not in issue. Moreover, contrary to Appellant’s arguments, withdrawal also was not in issue. We further hold that, even assuming that the information Appellant asserts the Government failed to disclose was favorable, it was immaterial in regard to findings and sentencing because the evidence substantially overlapped with other evidence presented by other defense experts, Appellant was not entitled to an escalation instruction, and the members clearly rejected the Government’s theory of premeditated murder. We, therefore, affirm the judgment of the United States Army Court of Criminal Appeals (CCA).

Senior Judge Effron, joined by Judge Erdmann, dissents:

A death occurred in the theater of operations. A soldier has been convicted of murder. Was it murder or self-defense? By law, the responsibility for making that factual determination rested with the court-martial panel, not with this Court. The ambiguous, confusing, and incorrect instructions from military judge deprived Appellant of the right to have a panel of officers make that decision. The military judge compounded that error by failing to take corrective action with respect to the Government’s failure to provide timely disclosure of exculpatory evidence. This Court should reverse the decision of the Court of Criminal Appeals and authorize a rehearing.

It’s a long opinion. Analysis to follow.

5 Responses to “CAAF affirms Behenna”

  1. Cap'n Crunch says:

    Travesty of justice.  Should have gotten a retrial.  Maybe SCOTUS takes it, but I doubt it.  This decision leaves a pit in my stomach.

  2. Rob M says:

    This is the case that first brought me to CAAFLOG several years ago.  I’ve been waiting to see how this ends for a number of reasons.  I’m looking forward to reading the opinion, though (as people who’ve read my comments could probably guess) I’m not surprised how it turned out.  

    I’ll admit, at one point I had been convinced by a number of commenters that the trial court got it wrong, until I read the appellate briefs and learned, contrary to my previous assumption, that the members did get the usual benchbook instruction on self-defense, in addition to the “initial agressor/escalation” one.   I’ll see what CAAF has to say. 

  3. truthwillsethimfree says:

    How can we continue to celebrate our freedom when the soldiers that put their lives on the line are denied that same freedom?  1LT Michael Behenna deserves a fair trial with all of the evidence heard!  Hopefully, SCOTUS will take this case and allow truth and justice to prevail!

  4. k fischer says:

    I’m sure my friends in the MI branch will be happy to hear that Military Intelligence is not the only oxymoron.  I would have at least given him a new trial based on the Brady violation.

  5. Dew_Process says:

    Even the instructional issue is a tad bit hard to swallow under the facts – the government’s theory — both at opening and closing — was that this was a premeditated execution.  The defense of course was “self-defense.”  The problem (and the prejudice) is that the members rejected the government’s theory and more-or-less “split the baby” by finding Behenna guilty of unpremeditated murder which, imho, ups the ante with respect to the supplemental self-defense instructional issue, which the CAAF admitted was erroneous.

    In Humphries, http://www.armfor.uscourts.gov/newcaaf/opinions/2011SepTerm/10-5004.pdf  a different 3 judge majority reversed a conviction where the panel had rejected the higher charges and convicted the Accused of consensul LIO’s which created a Fosler problem.  The CAAF majority reversed on Fifth and Sixth Amendment “notice” considerations.  While admittedly, not entirely analogous here, as in Humphries, the issue didn’t surface until instructions and in both cases, the government argued for the greater, charged offenses.  Thus, on one level it is difficult to reconcile Humphries with Behenna.

    With respect to the Brady violation issue, the dissent sums it up very well with one caveat.  Dr. MacDonell’s information was not cumulative in this context (assuming for purposes of argument that it otherwise was, which I don’t agree with) — had the Defense known of MacDonell’s opinion (and demonstration), they could have then objected to the closing argument of the Trial Counsel as being improper – improper in the context that they were asserting a position (premeditated execution while sitting on a rock) that their own expert had just rejected.  Without that information, the Defense did not have a good faith basis to claim the argument was improper, hence Brady prejudice that was not cumulative.

    Thus, the majority’s holding is incongruous in the context that they found error in the supplemental instruction, error in the failure to disclose MacDonell’s opinion as Brady, the two key issues on appeal, yet denying all relief.

    While there is a small chance that SCOTUS could be interested in this for certiorari purposes since the matter was litigated and preserved from the trial level forward, as it would give them an opportunity to clarify (a) when, if ever, is the withholding of specifically requested Brady material harmless beyond a reasonable doubt; and (b) what is the proper scope of the definition of “cumulative” in the context of Brady violations?  I suspect that SCOTUS won’t, but will rather let Behenna slug it out in a habeas corpus proceeding.

    DISCLAIMER:   I was involved in Behemma‘s post-trial litigation of the Brady issues.