CAAFlog » September 2011 Term » United States v. Behenna

Multiple news agencies report that President Trump issued a pardon to former Army Lieutenant Michael Behenna. Fox News quotes White House Press Secretary Sarah Sanders:

White House Press Secretary Sarah Sanders cited “broad support” for Michael Behenna, of Edmond, Okla., “from the military, Oklahoma elected officials, and the public” — including 37 generals and admirals, along with a former Pentagon inspector general — as the reason for Trump’s clemency grant. Sanders also said Behenna had been a “model prisoner” while serving his sentence.

“In light of these facts, Mr. Behenna is entirely deserving of this Grant of Executive Clemency,” Sanders concluded.

In April 2008, Behenna 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 Behenna stripped Mansur naked and threatened him with a pistol. Behenna was charged with murder, and at court-martial in March 2009 he claimed self-defense, asserting that Mansur had thrown a piece of concrete at him and tried to grab his pistol just before the shooting. Nevertheless, members convicted Behenna of unpremeditated murder and assault consummated by a battery, and sentenced him to a dismissal, total forfeitures, and confinement for 25 years., The convening authority later reduced the confinement 20 years, and the clemency and parole board reduced it to 15 years.

CAAF affirmed the convictions in United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (CAAFlog case page), holding that Behenna lost and did not regain the right to self-defense as a matter of law during the encounter, and that the prosecution’s late disclosure of a potentially-exculpatory opinion held by a prosecution expert was harmless. The Supreme Court denied certiorari in 2013. Behenna was subsequently granted parole and released from confinement in 2014, and became a ranch hand.

Behenna’s pardon isn’t President Trump’s first pardon for a former servicemember. The President gave Kristian Saucier a pardon for his conviction of violating 18 U.S.C. § 793(e) for illegally retaining photographs of classified areas of a nuclear submarine.

President Obama also granted clemency, including the commuting the death sentence of Private Loving and commuting the 35-year sentence of Private Manning. Loving murdered two taxicab drivers in Killeen, Texas (near Fort Hood), and attempted to murder a third, on December 12, 1988. Manning stole hundreds of thousands of classified documents and gave them to Wikileaks. Loving’s sentence was commuted to life without the possibility of parole and Manning’s was commuted to confinement until May 17, 2017 (effectively a 7-year term). Both actions were taken on January 17, 2017; three days before the end of Obama’s second term. Loving remains in post-trial confinement, while Manning is newly confined – and has been for the past two months – for contempt of court.

Commutations & Clemency was the #9 Military Justice Story of 2017, and we discussed Presidential pardons for convicted wartime murders last year, in this Scholarship Saturday post.

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.

Cert. denied in Behenna, SCOTUSBlog coverage here and orders list here.  H/t SCOTUSBlog.

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.