CAAF decided the Army case of United States v. Behenna, No. 12-0030/AR, 71 M.J. 228 (CAAFlog case page) (link to slip op.) on July 5, 2012.

In April 2008, Lieutanant Behenna, U.S. Army, was a Platoon Leader deployed to Bayji, Iraq (north of Baghdad). That month he shot and killed a detainee named Ali Mansur. The shooting occurred during an unauthorized interrogation in a desert culvert, during which LT Behenna stripped Ali Mansur naked and threatened him with a pistol. LT Behenna was charged with murder, and at trial in March 2009 he claimed self-defense, asserting that Ali Mansur had thrown a piece of concrete at him and tried to grab his pistol just before the shooting. LT Behenna was convicted, by members and contrary to his pleas, of unpremeditated murder and assault consummated by a battery, and was sentenced to a dismissal, total forfeitures, and confinement for 25 years (reduced by the convening authority to 20 years, and then by the clemency and parole board to 15 years).

Two trial-level objections were reviewed by the Army CCA (which denied relief), and then by CAAF. The first objection (which was raised at trial and denied) involved part of the military judge’s instructions to the members on self-defense. The second objection involved a defense-friendly opinion held by a government blood-spatter expert (who did not testify) that wasn’t disclosed until after findings were announced, leading to a defense request for a mistrial (that was denied). CAAF granted review to decide:

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.

In a 3-2 split, CAAF affirms the ACCA and denies relief. Judge Stucky writes for the court, with Senior Judge Effron, joined by Judge Erdmann, dissenting. The majority finds that the military judge’s instruction involving escalation of force was erroneous, but that this error was harmless beyond a reasonable doubt. In making this determination, they find that the Appellant, based on his own version of events, lost and did not regain the right to self-defense as a matter of law. For this reason, escalation of force wasn’t in issue and the Appellant wasn’t entitled to an escalation instruction (or a withdrawal instruction), rendering the erroneous instruction harmless.

Additionally, the majority finds that the late disclosure of the expert’s opinion was immaterial because it was only relevant for two issues: premeditation and self-defense. Because the members rejected the government’s theory of premeditation (by convicting the Appellant of the LIO of unpremeditated murder), any error in failing to disclose the expert’s opinion was harmless to the determination of the question of premeditation. Additionally, because the Appellant’s version of events establishes that he lost and did not regain the right to self-defense, and because the majority finds that the expert’s opinion would only have bolstered this version of events, the failure to disclose the opinion was harmless to the determination of the question of self-defense. The majority also notes that the expert’s opinion did not differ greatly from the two defense experts who did testify, giving it little relative evidentiary value.

The dissent, noting the different responsibilities of a military judge and a court-martial panel, finds that the erroneous instruction deprived the Appellant of the right to have the issue of self-defense decided by a properly instructed panel. Additionally, the dissent finds that the expert’s opinion would have provided valuable supplemental testimony supporting the defense’s theory of the case. For these reasons, the dissenters would reverse the ACCA and authorize a rehearing.

Analyzing the self-defense issue, the Army CCA found that “the law does not, under [the facts of this case], allow for self-defense if the members found beyond a reasonable doubt appellant’s actions to be an assault.” Behenna, 70 M.J. 521, 532, slip op. at 18 (Army Ct. Crim. App. 2011). But Judge Stucky frames the issue differently, beginning with “the right to act in self-defense, however, is not absolute. Initial aggressors and those involved in mutual combat lose the right to act in self-defense.” Behenna, __ M.J. __, slip op. at 12 (C.A.A.F. July 5, 2012). Additionally, while he finds two errors in the escalation of force instruction given by the military judge, Judge Stucky notes that “[generally], a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous.” Slip op. at 16 (citations omitted). Applying these principles, he finds that the Appellant was the initial aggressor who lost (and did not regain) the right to act in self-defense as a matter of law, rendering the military judge’s erroneous instruction superfluous and harmless.

Judge Stucky’s analysis of the self-defense issue begins “by noting that Appellant was not in an active battlefield situation, that Mansur was not then actively engaged in hostile action against the United States or its allies, and that there were no other military exigencies in play.” Slip op. at 17. He continues, noting that “Appellant’s own testimony about the events that transpired in the culvert demonstrate that he was the initial aggressor…

Appellant deviated from his assigned duty to return Mansur to his home, without authority, to take him to a remote culvert in the desert, far from any active hostilities for further unauthorized interrogation. More importantly, Appellant then stripped the detainee naked and forced him to sit on a rock while Appellant, in full combat attire with a loaded pistol, interrogated him. Appellant also told Mansur, as he had on other occasions that day, that he was going to die unless he provided specific information.

Slip op. at 18. An so, Judge Stucky finds that “there is no evidence on which a rational member could rely to conclude that Appellant was not the initial aggressor.” Slip op. at 19. As the initial aggressor, he lost the right to self-defense.

Judge Stucky then turns to the questions of whether Ali Mansur could have escalated the level of force, or whether the Appellant attempted to withdraw from the conflict, causing the Appellant to regain the right to self-defense. Finding first that Appellant introduced deadly force into the situation, thereby eliminating the ability of further escalation, citing United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012) (petition for cert. filed), he then assumes that Mansur could have escalated the level of force and

conclude[s] that a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at an initial aggressor in full battle attire, armed with a loaded pistol, and lunges for the pistol. This is especially so when the initial aggressor had every opportunity to withdraw from the confrontation and there was no evidence he either attempted or was unable to do so.

Slip op. at 20 (citations omitted). Judge Stucky also notes the CCA’s finding that “there was no evidence that Mansur made contact with Appellant’s weapon, that Appellant indicated a desire to withdraw, or that Appellant made a goodfaith effort to withdraw.” Slip op. at 21 (citation omitted). Because of this, he finds that “no rational member could have found either that Mansur escalated the situation or that Appellant withdrew in good faith.” Slip op. at 21. He concludes his analysis of the first issue with a summary:

Ultimately, even if we assume that Mansur lunged for Appellant’s pistol and Appellant feared that Mansur would use the pistol if he was able to seize it, because Appellant was the initial aggressor, and because there was no evidence to support a finding of escalation or withdrawal, a rational member could have come to no other conclusion than that Appellant lost the right to act in self-defense and did not regain it. As such, withdrawal was not in issue and the erroneous instruction on escalation was superfluous.

Slip op. at 22 (citation omitted).

Turning to the discovery issue, Judge Stucky does not determine if the late disclosure of the expert’s opinion was error, because even assuming it was error, he finds that any failure to disclose was harmless because the evidence was immaterial. “[The expert]’s testimony, at most, would have made Appellant’s version of events more likely, that is, that Appellant shot Mansur as he stood and reached for Appellant’s pistol.” Slip op. at 27. In turn, this was only material to the questions of premeditation and of self-defense. The premeditation issue was mooted by the conviction of unpremeditated murder. The self-defense issue was mooted because, “assuming the truth of Appellant’s version of what transpired in the culvert, he had lost the right to act in self-defense as a matter of law.” Slip op. at 27-28.

Judge Stucky also finds that “the difference between [the expert]’s opinion and the other experts’ [who actually testified] opinions was negligible.” Slip op. at 28. Accordingly, “[the expert]’s testimony ultimately would not have added much to Appellant’s case, other than the novelty that it came from a nontestifying expert witness associated with the Government’s case.” Slip op. at 29.

Judge Stucky addresses the impact on sentencing in a footnote, highlighting the fact that the defense “did not ask for a continuance or take any steps to produce [the expert] on sentencing or otherwise make his testimony available at sentencing.” Slip op. at 29, N.10. “For these reasons, our confidence in the results of trial – both for findings and sentencing – is not undermined by the Government’s failure to disclose [the expert]’s testimony.” Slip op. at 29-30.

Senior Judge Effron’s dissent highlights the two different narratives presented at trial: the government’s story that the Appellant took Ali Mansur into the culvert in order to kill him, and the Appellant’s story that he was merely employing unauthorized interrogation techniques to obtain information. Diss. op at 10-11. He notes that the government did not ask the trial military judge to find, as a matter of law, that the Appellant’s actions amounted to any offense, or that they “constituted the use of deadly force for purposes of precluding Appellant from asserting the right of self-defense.” Diss. op. at 11. He also implies that the majority is answering the wrong question:

[T]he granted issue does not call upon us to decide whether Appellant is, in fact, guilty of the act of murder. The granted issue requires us to determine whether the court-martial panel received instructions from the military judge on the issue of self-defense that properly informed the members as to the determinations they would need to make during the panel’s deliberations on the issue of guilt or innocence.

Diss. op. at 12-13. Senior Judge Effron then analyzes the instruction at issue, and like the majority he finds errors. But, returning to the narratives, he disagrees with the way the majority found no prejudice:

The majority opinion holds that any error was not prejudicial because no reasonable court-martial panel could have concluded that Appellant acted in self-defense. Under the majority view, Appellant did not have the right to defend himself, notwithstanding evidence that a person suspected of supporting the enemy rose up and reached for Appellant’s weapon during an interrogation. The majority takes the position that Appellant, by virtue of conducting an unauthorized interrogation that used improper techniques, including pointing a pistol at the suspect and using threatening words, did not have the right to defend himself when his life was threatened.

Diss. op. at 15-16 (citations omitted). Instead, Senior Judge Effron would have found prejudice in the erroneous instruction because the Appellant has “the right to have the panel decide whether, as a matter of fact, the circumstances justified the use of force to save the [Appellant’s] life from an attack by a person suspected of supporting the enemy.” Diss. op. at 17.

On the discovery issue, Senior Judge Effron frames the problem as a question of timing: did “disclosure to the defense on Friday night, after the return of findings, constitute[] timely disclosure in view of the prosecution’s awareness of [the expert]’s views prior to the return of findings.” Diss. op. at 22. He finds that, irrespective of prior knowledge of the opinion, “when the defense counsel approached the trial counsel and questioned her about [the expert]’s startling statement that he would have made a good defense witness, the trial counsel at that point had a duty to contact [the expert], to inquire promptly into the meaning of that statement, and to disclose the information to the defense team as soon as possible.” Diss. op. at 23.

Senior Judge Effron then finds prejudice in this failure to inquire and disclose:

The record demonstrates that [the expert]’s potential testimony setting forth his expert views was not confined to a mere belief in the credibility of Appellant’s testimony. He would have provided the court-martial panel with detailed, expert testimony, supplementing the information that had been provided by the two defense experts, from the perspective of a Government-employed consultant of considerable reputation.

Had [the expert] been called to testify by the defense, it is reasonably foreseeable that he would have added further information from an important perspective, beyond the testimony of the defense experts, based upon his expertise in blood spatter analysis.

Diss. op. at 24-25 (citation omitted). Because of these prejudicial errors, Senior Judge Effron would set-aside the findings and authorize a rehearing.

The case presents cautionary tales for prosecutors working with expert witnesses or consultants, especially where those experts are permitted to view the testimony of other witnesses, and for defense counsel trying to create a narrative that supports an assertion of self-defense. We’re already watching the certiorari petition in Stanley v. United States (which was cited by Judge Stucky in support of the principle that Ali Mansur couldn’t have escalated the force in this case). That petition asks:

Whether an individual who brandishes a firearm loses his entitlement to lawfully defend himself and third parties against the subsequent use of deadly force by those on whom the weapon was brandished?

Now we’ll keep our eyes our for a similar petition  in Behenna v. United States.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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