Behenna cert petition filed
Counsel for Army First Lieutenant Michael C. Behenna today filed this cert petition seeking review of CAAF’s decision. United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012).
Here’s the QP:
Whether a servicemember in a combat zone categorically forfeits the right to self-defense as a matter of law by pointing a firearm without authorization at a suspected enemy.
The petitioner’s counsel of record is famed SCOTUS litigator Jeffrey L. Fisher of Stanford Law School. Among Professor Fisher’s co-counsel is famed military justice litigator Donald G. Rehkopf.
Perhaps the Golden CAAF will be making a trek to Palo Alto.
When I read the petition, I was very offended by the Gov’t's cavalier attitude to its duties under Brady v Maryland. Brady aside, it appears the unrebutted scientific evidence supports the defense case. So, what gives?
This petition is well done. Best of luck.
I find it interesting that the Behenna majority finds that his case didn’t arise in an “active battlefield situation,” so ordinary civilian concepts of self-defense should apply, but held in Ali that the accused’s presence in Iraq allowed for the exercise of court-martial jurisdiction over a civilian pursuant to the Constitution’s war powers.
Not saying it should be, but it will be denied. SCOTUS is not a court of error – Chief Justice John Roberts.
That’s probably why a Brady argument was not made.