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.
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