CAAFlog » September 2011 Term » United States v. Behenna

According to this report, Army LT Behenna was granted parole by the Army Clemency and Parole Board effective March 14.

Behenna, who shot and killed a detainee named Ali Mansur in Iraq in April 2008, was convicted at a general court-martial in March 2009, contrary to his pleas of not guilty, 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). Appeals followed, and the findings and sentence were ultimately affirmed by CAAF in United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (link to slip op.) (CAAFlog case page). A subsequent petition for certiorari was featured on SCOTUSblog, but the Court denied review in June 2013.

Thanks to reader “D” for the tip.

Yesterday 1LT Behenna’s counsel filed this reply brief responding to the SG’s brief in opposition in Behenna v. United States, No. 12-802.  And today, SCOTUS scheduled the case for the 30 May conference.

Today the Golden CAAF II was spotted hanging hooves off Waikiki.  Cowabunga!

Cowabunga 2

For those of you who are new to CAAFlog, the Golden CAAF is a trophy that we send to any counsel who gets a cert grant to review a CAAF decision.  The Golden CAAF I was awarded to Code 46 for the Denedo grant.

Will the Golden CAAF II soon be returning to the Mainland, destination DuPont Circle or Palo Alto?  We should know the answer to the former at 1000 EDT a week from today.

Yesterday’s SCOTUSblog petition of the day was Behenna v. United States, No. 12-802.

Here’s an amicus brief filed by 37 retired generals and admirals (including 5 retired 4-stars) supporting certiorari in Behenna v. United States, No. 12-802.

Professor Steve Vladeck, one of the counsel on NACDL’s amicus brief in Behenna, No. 12-802, has posted this comment on the amicus brief.  Professor Vladeck explains that “by virtue of both its own jurisprudence and subsequent legislation, our brief explains why the Supreme Court should do more ‘error-correcting’ in military appeals than in any other category of cases.”

NACDL has filed this amicus brief supporting certioarari in Behenna.

As an alert reader noted, the Supremes today called for the Solicitor General to respond to the cert petition in Behenna v. United States, No. 12-802.  The cert petition, on which noted SCOTUS litigator Jeffrey Fisher of the Stanford Law Supreme Court Litigation Clinic is counsel of record, is available here.  We’ve previously discussed the case here.

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.

Two interesting pieces of news: (1) Counsel for First Lieutenant Michael Behenna have sought an extension of time to file a cert petition in the case, which the Chief Justice granted, resulting in a 3 January 2013 deadline; and (2) counsel for Behenna is Jeffrey Fisher from Stanford Law School of Bullcoming/Melendez-Diaz/Kennedy v. Louisiana/Davis v. Washington/Crawford v. Washington fame

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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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.

Audio of today’s much-anticipated (and packed) oral argument in United States v. Behenna is now available here.

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

Here’s NIMJ’s amicus brief in Behenna.

And here’s NACDL’s amicus brief in Behenna.