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UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
MICHAEL C. BEHENNA
BRIEF ON BEHALF OF APPELLANT
Captain, United States Army
Defense Appellate Division
Arlington, VA 2220
JACK B. ZIMMERMANN, Lead
TERRI R. ZIMMERMANN
KYLE R. SAMPSON
901 North Stuart Street, Suite 340
(703) 696-8100 Fax
zf™»"n Appellate defense Counsel Hermann, Lavine, Zin^rmann
& Sampson, p c
(713) 552-0746 Fax
Attorneys for the Appellant
MICHAEL C. BEHENNA
TABLE OF CONTENTS Page
TABLE OF CONTENTS TABLE OF AUTHORITIES
STATEMENT OF THE CASE STATEMENT OF FACTS
The Government Case
The Defense Case
Dr. MacDonell's Departure
The Court-Martial Continued
Instructions 1. Self-Defense
Lesser Included Offenses
ASSIGNMENTS OF ERROR AND ARGUMENT
THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION FOR MISTRIAL, BASED ON THE TRIAL COUNSEL'S FAILURE TO
DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.
THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION FOR NEW TRIAL, BASED ON THE TRIAL COUNSEL'S FAILURE TO
DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.
THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY FAILING TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.
THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY MAKING FALSE ASSERTIONS OF MATERIAL FACT AND INTERJECTING HER PERSONAL OPINION OF THE EVIDENCE IN CLOSING FINAL
THE MILITARY JUDGE REVERSIBLY ERRED BY GIVING AN IMPROPER INSTRUCTION LIMITING 1LT BEHENNA' S RIGHT TO SELF-DEFENSE.
THE EVIDENCE OF UNPREMEDITATED MURDER IS NOT FACTUALLY
THE MILITARY JUDGE REVERSIBLY ERRED BY FAILING TO INSTRUCT THE MEMBERS SUA SPONTE ON THE LESSER INCLUDED
OFFENSE OF VOLUNTARY MANSLAUGHTER.
ARGUMENT PERTINENT TO ERRORS I, II, AND III
Standards of Review
Basic Principles of Law Regarding the Prosecution's Duty to Disclose Favorable Information
Statutory and Procedural Obligation Under
The Obligation of Federal
C. There Was a Brady Violation in This Case and the Violation Was Harmful
Obligation of Government Counsel
Obligation of Defense Counsel
The Information Was Favorable and Material,
and the Government's Failure to Disclose
D. The Military Judge Should Have Granted
1. The Admissibility of the Evidence
is Not Determinative..
The Military Judge Misapplied the Law
The Military Judge Should Have Granted
a New Trial
F. This Honorable Court Should Grant Relief Because the Trial Counsel Failed to Disclose
ARGUMENT PERTINENT TO ERROR IV
(IMPROPER TRIAL COUNSEL ARGUMENT)
A. Standard of Review
It is Prosecutorial Misconduct to Argue Facts One Knows to Be False or Has Very Strong Reason
to Doubt, Which Are Contradicted by Evidence Not Presented to the Jury 47
It is Prosecutorial Misconduct to Interject
Personal Views of the Evidence and Comments
on the Defendant's Credibility or Guilt
ARGUMENT PERTINENT TO ERROR V
Standard of Review A Self-Defense Instruction Was Appropriate
Law with Regard to Losing and Regaining the Right
to Act in Self-Defense
The Instruction Given Was Incomplete and Inadequate
The Instruction Was Confusing and Required
Escalation to Act In Self-Defense
The Erroneous Instruction Lowered the
G. The Military Judge's Limiting Instruction
Constituted an Improper Comment on the
Weight of the Evidence
H. The Error Was Not Harmless Beyond a Reasonable Doubt
ARGUMENT PERTINENT TO ERROR VI
(FACTUAL SUFFICIENCY) A.
Standard of Review
The Government Failed to Disprove Self-Defense Beyond a Reasonable Doubt
ARGUMENT PERTINENT TO ERROR VII
(MANSLAUGHTER INSTRUCTION) A.
Standard of Review
Duty of the Military Judge
The Evidence Supported an Instruction on Voluntary Manslaughter as a Lesser
CERTIFICATE OF FILING AND SERVICE
TABLE OF AUTHORITIES
United States Supreme Court Cases
Anthony v. Louisville & Nashville R.R. Co., 132 U.S. 172 (1889)
Berger v. United States,
295 U.S. 78 (1935)
Brady v. Maryland,
373 U.S. 83 (1963)
Cone v. Bell,
21, 23, 30
, 129 S.Ct. 1769 (2009)
Kyles v. Whitley,
514 U.S. 419 (1995)
Strickler v. Greene,
22, 23, 30, 38, 44
527 U.S. 263 (1999)
United States v. Young,
470 U.S. 1 (1985)
Court of Appeals for the Armed Forces Cases
United States v. Bragg,
66 M.J. 325 (C.A.A.F. 2008)
United States v. Brickey,
16 M.J. 258 (CM.A. 1983)
United States v. Davis,
53 M.J. 202 (C.A.A.F. 2000)
United States v. Dearing,
63 M.J. 478 (C.A.A.F. 2006)
United States v. Diaz,
54, 55, 56
59 M.J. 79 (C.A.A.F. 2003)
United States v. Fletcher,
62 M.J. 175 (C.A.A.F. 2005)
46, 47, 51, 52
United States v. Grostefon,
12 M.J. 431 (CM.A. 1982)
United States v. Gutierrez,
19 65 67
64 M.J. 374 (C.A.A.F. 2007)
United States v. Jackson,
6 M.J. 261
United States v. Johnson,
1 M.J. 137 (CM.A. 1975)
United States v. Knickerbocker,
2 M.J. 128 (CM.A. 1977)
United States v. Leonard,
63 M.J. 398 (C.A.A.F. 2006)
United States v. Lewis,
65 M.J. 85 (C.A.A.F. 2007)
United States v. Mahoney,
53, 54, 55, 56, 65 23, 32
58 M.J. 346 (C.A.A.F. 2003)
United States v. Manuel,
43 M.J. 282 (C.A.A.F. 1995)
United States v. McGraner,
13 M.J. 408 (CM.A. 1982)
United States v. Mustafa,
22 M.J. 165 (C.A.A.F. 1986)
United States v. Ober,
66 M.J. 393 (C.A.A.F. 2008)
United States v. Reynolds,
24 M.J. 261 (CM.A. 1987)
United States v. Roberts,
59 M.J. 323 (C.A.A.F. 2004)
United States v. St. Jean,
20, 21, 24, 25, 43
45 M.J. 435 (C.A.A.F. 1996)
United States v.
25 M.J. 324 (CM.A. 1987)
United States v. Webb,
66 M.J. 89 (C.A.A.F. 2008)
United States v. Wells,
20, 22, 38, 42, 44, 45
52 M.J. 126 (C.A.A.F. 1999)
Courts of Criminal Appeals Cases
United States v. Adens,
56 M.J. 724 (Army Ct. Crim. App. 2002)
United States v. Mott,
No. 200900115, 2009 WL 4048019
(N.M. Ct. Crim. App. 24 Nov. 2009) (unpub.). . . 26, 27, 37
United States v. New,
50 M.J. 729 (Army Ct. Crim. App. 1999)
Circuit Courts of Appeals Cases Bailey v. Rae,
339 F.3d 1107 (9th Cir. 2003)
Benn v. Lambert,
283 F.3d 1040 (9th Cir. 2002)
Hughes v. Hopper,
629 F.2d 1036 (5th Cir. 1980)
Lindsey v. King,
769 F.2d 1034 (5th Cir. 1985)
United States v. Blueford,
312 F.3d 962 (9th Cir 2002)
United States v. Cuffie,
80 F.3d 514 (D.C Cir. 1996)
United States v. Oruche,
484 F.3d 590 (D.C. Cir. 2007)
United States v. Pelullo,
399 F.3d 197 (3rd Cir. 2005)
United States v. Reyes,
577 F.3d 1069 (9th Cir. 2009)
United States v. Shaffer,
47, 48, 49, 50
789 F.2d 682 (9th Cir. 1986)
United States v. Smith,
11 F.3d 511 (D.C. Cir. 1996)
State Courts of Criminal Appeals Cases Ex Parte Mowbray,
943 S.W.2d 461 (Tex. Crim. App. 1996)
State v. Bennett,
37, 41, 42
No. 03C01-9304-CR-00115 1994 WL 53645
(Tenn. Crim. App. Feb. 24, 1994) (unpub.). . 39, 40, 41, 42
Constitutionr Statutes and Rules
U.S. Const, amend. V
U.S. Const, amend. XIV, §1
UCMJ art 36, 10 U.S.C § 836
UCMJ art 39(a), 10 U.S.C. § 839
UCMJ art 46, 10 U.S.C. § 846 UCMJ art 59, 10 U.S.C. § 859
12, 17, 18
24 25 46
UCMJ art 66(c), 10 U.S.C. § 866
UCMJ art 107, 10 U.S.C § 907
UCMJ art 118(2), 10 U.S.C. § 918
UCMJ art 128, 10 U.S.C § 928
Rule for Courts-Martial 701
1, 58, 59
Rule for Courts-Martial 701(a) (2) (B) Rule for Courts-Martial 701(a) (6) Rule for Courts-Martial 802
25 26 12
Rule for Courts-Martial 913(c)(5)
Rule for Courts-Martial 915 17
Rule for Courts-Martial 916(b)(1)
Rule for Courts-Martial 916(e) Rule for Courts-Martial 916(e)(4) Rule for Courts-Martial 920(e)
43, 58, 63
54 54 55 60
Rule for Courts-Martial 920(e)(3) Rule for Courts-Martial 1210(f)(2)
ABA Comm. on Ethics and Prof 1-Responsibility,
Formal Op. 09-454 (July 8, 2009) 29
ABA Standards for Criminal Justice 3-5.8 (a)-(b)
Army Reg. 27-26, Legal Services: Rules of Prof 1
Conduct for Lawyers, R. 3.8 (01 May 1992)
Dep't of Army Pam. 27-9, Legal Services: Military Judges'
Benchbook, Para. 3-43-2 (15 September 2002)
Government's Motion to Set Aside the Verdict and
Dismiss the Indictment with Prejudice in United States v. Stevens, No. 08-231 (D.D.C) dated 1 April 2009
Model Rules of Prof 1 Conduct R. 3.8(d) (2008). ...
Relevant Excerpts from Ch. 9-5.001
28, 29, 30
United States Attorneys' Manual
IN THE UNITED
COURT OF CRIMINAL APPEALS
BRIEF ON BEHALF OF APPELLANT
Docket No. ARMY 20090234
MICHAEL C. BEHENNA
Tried at Fort Campbell, Kentucky, on 8 December 2008, 22 January, 23-28 February, 2 and 20 March 2009, before a
United States Army Appellant
general court-martial convened by the Commander, Fort Campbell Installation, Fort Campbell, Kentucky, Colonel Theodore Dixon, Military Judge, presiding.
TO THE HONORABLE, THE JUDGES OF THE UNITED STATES
ARMY COURT OF CRIMINAL APPEALS
STATEMENT OF THE
First Lieutenant Michael C. Behenna, at Fort Campbell, Kentucky, on
8 December 2008, 2009. He was
22 January, with
23-28 February, violations of
and 2 and 20 March 107 (False
Official Statement), 118 (Premeditated Murder), and 128 (Assault),
Uniform Code of Military Justice [hereinafter UCMJ]
907, 918 and 928. The members acquitted 1LT Behenna of the false
official statement and premeditated murder allegations, but found him guilty of unpremeditated
Behenna to total
approved the sentence, but reduced confinement to twenty years.
STATEMENT OF FACTS
1LT Behenna was
a platoon leader serving in northern Iraq
beginning in September 2007.
On 21 April
platoon encountered an Improvised Explosive Device (IED); two of
his soldiers were killed, and several were severely wounded. (R.
1190-92.) 1LT Behenna discovered that a suspected insurgent in his
area of operations, Ali Mansur, had been involved in this attack,
as well as planning
that 1LT Behenna read stated:
ARAK IS THE LEADER [sic] THE AL-QA'DA IN IRAQ IED CELL. ADIL MAKES
AND EMPLACES IEDS. . . . ALI MANSUR TRANSPORTS EXPLOSIVES AND
INFORM [sic] ADIL ABOUT THE CF [COALITION FORCES]
PRESENCE IN THE
interrogated regarding his background and a weapon found in his
home, then ordered released; on 16 May 2008, 1LT Behenna was
ordered to take Ali Mansur to his home in Albu Toma.
1LT Behenna decided to further interrogate Ali Mansur because he felt that the intelligence personnel had not adequately questioned
Ali Mansur about his knowledge of terrorist activities in the area.
(R. 1214, 1217.) 1LT Behenna directed his unit to divert from the
published to the members during 1LT Behenna's direct testimony.
road into the desert,
where he, his squad leader (Staff Sergeant
Hal Warner), and their interpreter ("Harry"), walked to a tunnel in
a culvert. (R. 1224-25.) There ILT Behenna and SSG Warner cut off
Ali Mansur' s clothes in an attempt to humiliate him and induce him
to answer questions. (R. 1226-27.) During the questioning, SSG
Warner left the tunnel to relieve himself.
standing outside the tunnel translating between ILT Behenna and Ali
Mansur. (R. 806, 1230.) ILT Behenna testified that he heard "a
. . . [then saw]
Ali is getting up with his hands out
toward my weapon. I stepped to the left and fired two shots." (R.
Seven months before trial,
the Defense requested in writing
During the course of the trial,
of its continuing duty to
(R. 528, 555.)
Prior to trial, the Government gave notice to the Defense that
it had retained Dr. Herbert MacDonell as an expert scene
The Government Case.
During its opening statement on Monday, 23 February 2009, the
Government stated ILT Behenna shot and killed Ali Mansur while he
was sitting on a rock.
394.) The Government stated that the
implying an execution-style
first shot was to Ali Mansur's head,
killing. (R. 393.)
Harry testified that ILT Behenna was questioning Ali Mansur as
Ali Mansur was sitting on
He said that he could see ILT Behenna and
distinguish a person, but could not see Ali Mansur's hands or arms. (R. 798.) It was dark. (R. 775.) There were no streetlights,
houses or vehicles with lights on nearby.
During the questioning, Ali Mansur repeatedly stated, "I don't
testified that he turned toward ILT Behenna to translate what Ali
Mansur was saying to ILT Behenna when he heard the first shot, and it surprised him because he did not know or see what happened
immediately prior to the
was standing at
least ten meters away from the tunnel and was at an angle from ILT Behenna and Ali Mansur, not directly in front of them.
Ali Mansur was about one meter into the tunnel. ILT
about one to three meters inside the tunnel.
each man was about one foot from the two
The back of
Testimony established that
about ten feet wide.
(R.732.) Thus, Ali Mansur's and ILT Behenna's
outstretched arms would have been only two or three feet apart.
SSG Warner confirmed the lack of nearby lighting and testified that it was dark enough to use his night vision equipment.
02.) He was wearing full combat gear, including his IBA,
(R. 901helmet, (R.
multiple grenades, 300 rounds of rifle ammunition, and his M-4.
895-97.) It was very heavy. (R. 897.)
SSG Warner was facing away from the culvert, relieving himself
in some bushes to the side of the culvert when he heard the first
He testified at trial that he was 35 meters to
the side of the culvert and could not see into the tunnel.
one week prior to this testimony,
he had told the
military judge under oath during his guilty plea2 that he was 50
meters away. (R. 904-05, 918-19.) He claimed that he was able to
stop in the middle of urinating, with one hand taking care of that
issue and the other carrying his rifle, and In a matter of one
second, run through the sand and rocks to a position where he could
see into the tunnel3 - and that he saw ILT Behenna pointing his
weapon at Ali Mansur before the second shot, which took place three
In exchange for his plea of guilty to lesser charges, his charge of
premeditated murder of Ali Mansur was dismissed, allowing him to avoid a mandatory life sentence. (R. 924-25.) Instead, he received a sentence of only 17
Either 15-20 meters or 30-35 meters,
depending on which sworn
testimony is used.
seconds after the first shot.
exchange took place on cross-examination of SSG Warner:
Q. [Y]ou didn't see the Lieutenant pull the trigger or who pulled the trigger on the first shot?
No, sir, I did not.
And you didn't see who pulled the trigger on the
I did not.
And you don't know why either shot was fired?
No, sir, I do not.
whatever that was before the first
Or whatever activity occurred shot, you didn't see it?
No, sir, I did not.
And you don't know why the trigger was pulled on
Sir, I can't speculate; no, sir.
SSG Warner admitted that he had made prior inconsistent and
false sworn statements. (R. 882, 914-16, 919-23, 938-39.) He
testified pursuant to a pretrial agreement that included a grant of testimonial immunity. (R. 883.) The Government called no witness to
testify that he had good character for truthfulness.
The Defense Case.
25 February 2009, the Defense called Dr. Paul
a forensic pathologist, as a witness. He testified that
based on the autopsy, Ali Mansur was shot first in the right side of the chest while standing, with his right arm not in the bullet
track, and then in the side of his head as he instantly fell to the
(R. 959, 961-62.) The Defense then called Mr. Tom Bevel, a
scene reconstruction expert, who testified that based on the blood stains and other forensic evidence, the best explanation for the
location of the wounds on Ali Mansur and the pattern of the blood
depicted in scene photographs was that Ali Mansur was rising to his feet or standing when shot first in the chest, and that his right
arm was raised because it was not in the flight path of the bullet
that entered the side of his
forensic evidence was
right rib cage.
Government and Mr.
Radelat and Mr. Bevel, the Government implied that there were other
logical explanations of the shooting scenario in this case based on
the forensic evidence. (R. 968-69, 998-1000.)
After the testimony ended on Wednesday, 25 February 2009, the
Government team (including three trial counsel and their experts,
effort to determine what possible shooting scenarios were supported by the forensic evidence. (R. 1463-65.) Dr. MacDonell informed them
[T]he only thing that I can come up with consistent with all of the facts as I know them would be that he probably was shot in the side with his arm up—in the chest or side, and then as he dropped straight down the bullet went through his head because he passed in front of the muzzle at the exact moment, though extremely unlikely that that's happened.
Id. Dr. MacDonell used Sergeant MacCauley, one of the Government
paralegals, to demonstrate the scenario:
I asked if he could stand in front of me and I put a finger in his ribs and said "Bang, now drop." And he went down to his knees and as he went by the finger I said, "Bang." I said, "Now, that seems to me to be the only logical thing. " (R. 1464) (emphasis added) . This was (R. 1475.) the only demonstration he
the following day,
Dr. Pablo Stewart,
expert psychiatrist, testified that ILT Behenna was suffering from Acute Stress Disorder at the time of the killing of Ali Mansur. (R.
1131.) Acute Stress Disorder is the condition that becomes known as
Post-Traumatic Stress Disorder if it persists after 30 days from
the traumatic event.
(R. 1131.) This evidence was not disputed by
The Defense made it clear that mental
responsibility was not being raised.
On Thursday, ILT Behenna testified that based on intelligence
that he gathered in Iraq, as well as multiple threats against ILT
Behenna and his platoon that he had received from Ali Mansur, he
believed Ali Mansur to be involved with terrorist acts, including
participation in attacks using IEDs.
(R. 1184-90, 1249-51.)4 Ali
Mansur had been taken into custody and interrogated,
headquarters had ordered his release.
ILT Behenna felt
Mansur had not been sufficiently questioned regarding his knowledge of insurgent cell operations occurring in ILT Behenna's area of
My intent on May 16th was to question Ali myself. I knew he had information about the April 21st attack. I knew he knew who the cell leaders were in Salaam Village and operating in Salaam Village. Those questions weren't asked during any of the interrogations that were done.
In accordance with this intent to obtain such information, ILT
Behenna made efforts to further question Ali Mansur on the day he
responding, "I don't know" to the questions. ILT Behenna used a series of graduated
(R. 1226, 1230, 1232.) intended to
induce Ali Mansur
cooperating with the
1231-32.) These techniques ranged from verbal threats,
See the testimony of Harry, e.g., that the local Sheik had described
Ali Mansur to ILT Behenna as a "bad guy," which meant, "Yes, he is an involved terrorist, [involved with terrorist] operations, information, everything. He would place explosives. That's what he meant by bad person, terrorist. A bad person who would place explosives, he would kill, he would kidnap." (R. 790); see also the testimony of ILT Brinks who had relayed to ILT Behenna a report that Ali Mansur had placed an IED on the route back to Albu Toma (R. 1043-44), and the testimony of translator "Sam" that Ali Mansur had threatened ILT Behenna on the
phone. (R. 1060, 1062-63.)
off Ali Mansur's clothes to humiliate him,
to pointing his pistol
at Ali Mansur to scare him into providing the relevant information.
(R. 1231-32.) The Lieutenant testified, "My whole intent through
this whole thing was to question Ali and to get the bigger fish, if
you will, in Salaam Village. That was my whole intent." (R. 1225.)
Just prior to the shooting, ILT Behenna had his pistol pointed
at Ali Mansur. ILT Behenna's finger was outside the trigger well.
ILT Behenna testified that he shot Ali Mansur because he
feared that Ali Mansur was about to try to take the weapon
Behenna had and kill him:
A. As I had my head turned toward the left, I hear a sound of a piece of concrete hitting concrete over my left shoulder. Immediately I turned toward my—to my right. You know, my weapons [sic] like this [demonstrating.] Ali is getting up with his hands out toward my weapon. I stepped to the left and fired two
•k -k ~k
And why did you fire at all?
A. Because when Ali was standing up, reaching toward my weapon, this happened fast. As I turned Ali was reaching up toward my weapon, getting up, I stepped to the left
and fired two shots.
A. I was scared Ali was going to take my weapon and use it on me, but this happened fast. (R. 1233-34.)5
This fear was reasonable - even SSG Warner testified that when he
heard the first shot, he feared that Ali Mansur had "got a hold of the weapon" from ILT Behenna or the interpreter. (R. 903.)
Dr. MacDonell was in the courtroom when ILT Behenna described
for the first time the shooting of Ali Mansur.6 Dr.
described what happened next:
[A]t the very moment that the defendant testified as to the arms being up reaching for the gun and it went bang, bang, and all of that, I tapped Dr. Berg [the Government expert pathologist] on the shoulder and said that's exactly what I told you yesterday.
(R. 1462); see also Military Judge's
Fact dated 20
March 2009, AE XCI (para.
examination but before cross-examination of ILT
Behenna, the military judge heard arguments regarding a legal issue
and recessed to deliberate from 1644 to 1705. (R. 1243.) During
that recess, Dr. MacDonell had a discussion with the trial counsel
and offered to stay another day if they would need his testimony.
Trial counsel told him that would not be necessary and that he could leave to catch his flight home.
leave, and the following took place: I reminded them that although the scenario I had presented to them the day before was unlikely, it still was the only theory I could develop that was consistent
Dr. MacDonell prepared to
with the physical evidence. It was also exactly the way
Lt. Behenna had described the events. Their reaction was
Affidavit of Dr. MacDonell, Attachment to Motion for New Trial, AE
XCIII, attached at Appendix A;
(R. 14 62)
("And as I was leaving I
ILT Behenna had never described the events of the shooting to anyone
but his lawyers prior to his trial testimony.
told the prosecuting group, I said,
*That was just exactly what I
told you.'"). As he left the courthouse, Dr. MacDonell said to the
lead civilian defense counsel, "I would have made a great witness
for you." Appendix A; (R. 1461-62.) When the Defense inquired as to
what his testimony might be, Dr. MacDonell stated that he could not divulge any information to the Defense, as he had been retained by
the Government. Appendix A; (R. 1462.) Defense counsel asked Dr.
MacDonell to remain, but Dr. MacDonell refused to do so. Appendix
A. Dr. MacDonell left during the recess to catch his plane back to
F. The Court-Martial Continued.
After the recess,
the Government proceeded with its cross(R. 1245.) At the conclusion of cross
examination of ILT Behenna.
judge held an
Article 39(a) hearing to determine the admissibility of an exhibit.
(R. 1286-91.) As soon as the members returned, the Defense rested. (R. 1291.) The Government had no rebuttal, but the members recalled
instructions with counsel.
At an Article 39(a)
the military judge advised the
parties of his
intent to give
a limiting instruction regarding
ILT Behenna committed an assault
upon the deceased when
deceased. (See R. 1306.)
Defense counsel objected, stating:
[T]he special instruction which you provided to counsel,
as far as the limitations on self-defense,
doesn't believe that there is evidence of
under the circumstances. The act of pointing a weapon toward any combatant in a war zone, we don't think that gives rise to—by the evidence even to be inference of
the offense of assault; therefore, the members should not
be instructed on that limited limitation as it relates to
the use of deadly force as self-defense.
The next morning, Friday, 27 February 2009, prior to the start
of court, lead civilian defense counsel informed Government counsel
turn over that
information if it
"there was no
proceeded with instructions and argument.
The military judge gave the following instruction regarding self-defense to the members, despite the Defense objection:
Now there exists evidence In this case that the accused
may have been assaulting- All Mansur immediately prior to the shooting by pointing a loaded weapon at him. A person who without provocation or other legal justification or excuse assaults another person is not entitled to self-defense unless the person being assaulted escalates the level of force beyond that which was originally used.
The burden of proof on this issue is on the prosecution. If you are convinced beyond a reasonable doubt that the
accused, without provocation or other legal justification or excuse, assaulted Ali Mansur then you have found that the accused gave up the right to self-defense. However, if you have a reasonable doubt that the accused assaulted Ali Mansur, was provoked by Ali Mansur, or had some other legal justification or excuse, and you are not convinced beyond a reasonable doubt that Ali Mansur did not escalate the level of force, then you must conclude that the accused had the right to self-defense, and then you must determine if the accused actually did act in
the military judge repeated this instruction.
Lesser Included Offenses
The military judge instructed on premeditated murder, and the
lesser included offenses of unpremeditated murder and aggravated assault. (R. 1311-14, 1325.) He did not instruct on any other
lesser included offenses. The Defense objected to the aggravated
H. Final Argument.
Government counsel argued that Ali Mansur had been shot while
he was sitting on a rock in the culvert,
implying that it was an
execution-style killing with the first shot to the head and the
second to the chest. (R. 1328,
4) . The Defense argued that ILT Behenna shot Ali Mansur in
Behenna's weapon. The first shot was to the chest and the second
shot was to the head as Ali Mansur fell to the ground. At the time,
Defense counsel did not know that the argument was consistent with Dr. MacDonell's scenario as the only logical explanation of the shooting. (R. 1383-85.) In her closing final argument, lead trial
counsel ridiculed the Defense theory that Ali Mansur was shot while
standing and reaching for ILT Behenna's drawn pistol. Although the translator had testified that he did not see what happened just prior to the shooting, and could not see Ali Mansur's arms or
hands, the trial counsel argued, "He [Harry] had no doubt that Ali
Mansur did not move." This drew an objection as being outside the
(R. 1406.) With respect to the Defense theory, she argued,
is incredible. That makes no sense whatsoever. It's
unreasonable to expect that to be true." (R. 1407.) Trial counsel continued, "That makes no sense. That story is incredible." (R.
1408.) Attacking ILT Behenna's testimony, she interjected, "It's an
impossible situation." that Ali Mansur was at argued, (R. 1410.) Asserting her personal opinion ILT Behenna, trial counsel
the mercy of
"I think the only interpretation of the facts is that he
took advantage of that and executed him."
With regard to
the unrebutted forensics,
the trial counsel
we didn't offer rebuttal on the forensic testimony
I think the forensics were clear. There is a
whole range of possibilities of what could have happened. It's almost impossible to conclude either that he was sitting or standing. The experts made i t clear. It could mean a whole bunch of things. That's why we didn't bother
to rebut it, because we have eyewitness testimony and even more than that, we have a story that is reasonable versus a story that is incredibly self-interested and
Neither Dr. MacDonell nor Dr. Berg had testified. Referring to ILT Behenna, she concluded, "His story is
incredible, and I ask you to look at all the evidence in deciding
whether or not you actually have a reasonable doubt." (R. 1412-13.) The members returned findings of guilty to unpremeditated
murder and assault late in the day.
Meanwhile, Dr. MacDonell had returned to his home in New York.
Dr. MacDonell was concerned that the Government may not
Brady material to the Defense. (R. 1477.) On
have turned over
Friday, 27 February 2009 (the same day as final arguments and the
findings), Dr. MacDonell sent the lead trial counsel an email
stating his concerns. See Email Chain, AE LXXVI, at Appendix B. At
2307, lead trial counsel forwarded Dr. MacDonell's email to the
Defense, adding the comment, "I am not sure that I believe that Mr. MacDonnell's [sic] new opinion is exculpatory, but I wanted to send
it to you in an abundance of caution." Id.
On Saturday morning,
28 February 2009,
at an Article 39(a)
session prior to the beginning of the sentencing proceedings, the
Defense orally moved for a mistrial under R.C.M. 915 for failure to
disclose exculpatory evidence. (R. 1443.) The military judge stated
he would hear evidence, and not conduct the hearing based on
hearing, during which Dr. MacDonell testified via telephone.
1458-82.) Dr. MacDonell testified that he had, in fact,
courtroom during the trial and at the hearing, that ILT Behenna's
account of the shooting was the most logical explanation based on
the forensic evidence. (R. 1462-65.) He said that he informed them
of that opinion during the demonstration Wednesday night prior to
ILT Behenna's testimony, and then
witness called by either side on the Motion for Mistrial. The only other evidence produced was an oral stipulation between the parties that the lead defense counsel had,
counsels' attention that Dr.
brought to the trial
he would have
been a good defense witness and the trial counsel had told lead
defense counsel that "no exculpatory evidence" existed.
evidence to contradict Dr. MacDonell's testimony.
The military judge ordered both sides to submit written briefs
on the issue by 2 March 2009 and then proceeded with the sentencing
portion of the court-martial. (R. 1484, 1489.) The members
sentenced ILT Behenna to twenty-five years of confinement,
forfeitures, and to be dismissed from the service.
(R. 1595.) The
military judge excused the members and recessed the proceedings
until the Article 39(a)
session to take place on 2 March 2009.
deferred ruling on the Motion for Mistrial. (R. 1631.) The military
judge ordered further briefing from the parties on specific issues
pertaining to the mistrial,
as well as whether a new trial was
(R. 1631.) The parties submitted supplemental briefs
session convened on 20 March 2009. (R.
and another Article 39(a)
1638.) The military judge denied the Motion for Mistrial and stated
that a new trial was not appropriate.
adjourned the court-martial. (R. 1725.)
On 21 April 2009, the defense counsel received an affidavit
from Dr. MacDonell, which stated,
When I testified that I told Dr. Berg, "That is exactly what I told you guys yesterday," and did not remember telling my reaction to any other person, I meant right
there at that moment in the courtroom. There was no one
else but Dr. Berg sitting nearby who had witnessed my demonstration the day before. The prosecutors were at
counsel table then.
However, at the next recess, when I went to get my hat, coat, and briefcase, I specifically told the three
prosecutors in their office in room 13 the same thing I told Dr. Berg. As I testified on February 28, 2009, "And as I was leaving I told the prosecuting group, I said,
"*That was exactly what I told you.
•k -k -k
. . .'"
I know that this affidavit and my telephone testimony differ from what the court heard from the prosecution. I take my oath seriously, and this is the truth. I told the
prosecutors on Thursday that what Lt. Behenna had just described is exactly what I had demonstrated to them
before I knew what Lt. Behenna would say. I told them this before I made my remark to Mr. Zimmermann on my way out of the courthouse. I am quite willing to take a polygraph if anyone thinks it is necessary.
Appendix A. Based on this affidavit, the Defense filed a Motion for
New Trial on 21 April 2009. AE XCIII. This motion was denied. AE
ASSIGNMENTS OF ERROR AND ARGUMENT7
THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION
BASED ON THE TRIAL COUNSEL'S
INFORMATION TO THE DEFENSE.
THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION
FOR NEW TRIAL,
BASED ON THE TRIAL COUNSEL'S FAILURE TO
INFORMATION TO THE DEFENSE.
TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY FAILING
TO DISCLOSE FAVORABLE
INFORMATION TO THE DEFENSE.
Issues raised pursuant to United States v. Grostefon, 12 M.J. 431
(CM.A. 1982) are at Appendix C.
OF MATERIAL OF THE
ERROR BY MAKING
INTERJECTING CLOSING HER
FALSE ASSERTIONS PERSONAL
THE MILITARY JUDGE REVERSIBLY ERRED BY GIVING AN IMPROPER
INSTRUCTION LIMITING ILT BEHENNA' S RIGHT TO SELF-DEFENSE.
SPONTE ON THE
OFFENSE OF VOLUNTARY MANSLAUGHTER.
ARGUMENT PERTINENT TO ERRORS I.
Standards of Review.
A reviewing court will apply an abuse of discretion standard to a military judge's ruling on a motion for mistrial or a motion
for a new trial. See United States
United States v.
when the issue
information at issue was subject to disclosure and second, if there
was non-disclosure, the court is to test the effect of that non
disclosure on the trial. United States v. Roberts, 59 M.J. 323, 325
A military judge abuses his discretion in this
context when his findings of fact are clearly erroneous, when he is incorrect about the applicable law, or when he improperly applies the law. Id. at 326. If a specific request for the information had been made, the can appellant show
The ruling of
the military judge
about whether information was subject to disclosure is given no
deference due to the de novo standard of review of questions of
Similarly, the appellate review assessing the impact of Id.
improper disclosure is not deferential.
Basic Principles of Law Regarding the Prosecution's Duty to
Disclose Favorable Information.
the United States
advocates, they have a higher duty to the system and must disclose
favorable information to the defense:
Although the State is obliged to prosecute with earnestness and vigor, it is as much its duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Accordingly, we have held that
when the State withholds from a criminal defendant
evidence that is material to his guilt or punishment, it violates his right to due process of law in violation of
the Fourteenth Amendment.
Cone v. Bell,
, 129 S.Ct. 1769, 1782-1783 (2009) (citing
83, 87 (1963)) (additional internal
cites and quotes omitted). In the military context,
the Court of
Appeals for the Armed Forces has followed Supreme Court precedent
and held that:
The Due Process Clause of the Fifth Amendment guarantees that criminal defendants be afforded a meaningful
opportunity to present a complete defense. That guarantee requires the prosecution to disclose to the defense
evidence favorable to an accused where the evidence is
material either to guilt or to punishment. Webb, 66 M.J. at 92 (internal cites and quotes omitted). To
"material" to guilt or punishment, the Court must evaluate whether "there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
explained: "the question is not whether the defendant would more
evidence, but whether in i t s absence he received a fair trial." Id.
This Court must decide whether,
in the absence of this
fair trial" in
ILT Behenna "received a
other words, whether the failure to disclose "undermines confidence
in the outcome of the trial." Id.} United States v. Oruche, 484
efforts of defense counsel to impeach the witness, thereby calling
80 F.3d 514,
remaining evidence standing alone would have been sufficient to
convict"); United States v. Smith, 11 F.3d 511, 515 (D.C. Cir.
1996) ("As the Court made clear in Kyles, the test for materiality
is not a sufficiency-of-the evidence test")(emphasis in original).
Significantly, "Failing to disclose such evidence is a due
process violation ^irrespective of the good faith or bad faith of the prosecution.'" Id. The
(quoting Brady, duty to
at 87). information
to guilt or
Appeals for the Armed Forces has reaffirmed this principle:
We note at the outset that even if trial counsel did not
know about the letter, it would have become known to him "by the exercise of due diligence." Rule for Courts-Martial 701(a)(2)(B). As the Supreme Court
restated in Strickler v. Greene, [527 U.S. 263 (1999)]
"the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in this case, including police."
the defense counsel
prosecutor's representation that Brady information does not exist
or has been disclosed. See Strickler v. Greene, 527 U.S. at 283 (if
a prosecutor asserts that he complies with Brady through an open
file policy, defense counsel may reasonably rely on that file to
contain all materials the State is constitutionally obligated to
disclose under Brady)} see also United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (quoting Hughes v. Hopper, 629 F.2d 1036,
1039 (5th Cir. is] the 1980)) ("defense counsel's . . . knowledge when a of the
effectively defense into
prosecutor not be
favorable to the defendant"); accord, United States v. Pelullo, 399
213 (3rd Cir. 2005)(same).
Statutory and Procedural Obligations Under Military Law
Article 4 6, UCMJ, establishes an accused servicemember's right
The Court of Appeals
Armed Forces has confirmed that Rule 701 of the Rules
Martial implements this right, and has described the application of these authorities
The duty to disclose is focused on access to evidence to aid
in the preparation of the defense, and not on evidence known to be admissible at trial. Id. The possible use of such evidence in trial
is not the determinative factor.
Id. at 326. The Court of Appeals
held that the military judge erred as a matter of law in denying
discovery, in part by improperly limiting the scope of discovery by
focusing on the admissibility of impeachment evidence to be used in
the defense case, the case. rather than on its value to the preparation of
Id. The military judge in the case at bar erred for the
2009, AE XCI
Military Judge's Conclusions of Law dated 20 March
This Court has held that a statutory analysis of discovery issues is appropriate, separate from and independent of the
constitutional intended to
specifically required in
Federal practice." United States v. Adens, 56 M.J.
Ct. Crim. App. 2002).
The standard to apply under the statutory analysis is whether the evidence was "material to the preparation of the defense" under R.C.M. 701(a)(2)(A). Id. Significantly, this Court held:
Under this standard, it is irrelevant whether the government intends to offer the evidence in its case-in-chief, in rebuttal, or not at all. It still must be disclosed if it is "material to the preparation of the defense." Furthermore, when a trial counsel fails to disclose information pursuant to a specific request or when prosecutorial misconduct is present, the evidence is
considered material unless the government can show that failure to disclose was harmless beyond a reasonable
In the instant case, we respectfully submit that the failure
to disclose violated ILT Behenna's constitutional rights. "In most factual situations, a material violation of an accused's statutory
right to disclosure under Article 46, UCMJ,
would also undermine
However, even if this Court finds no constitutional violation, the
withheld evidence would have been material to the preparation of
thereby meeting the test for a statutory violation
established in Adens.
Appeals, reversed an attempted murder case just over one month ago
because of very similar reasoning to that of this Court in Adens.
United States v. Mott, No. 200900115, 2009 WL 4048019 (N.M. Ct.
Crim. App. 24 Nov. 2009) (unpub.).9 Finding that the oral statement
made to trial counsel by a government non-testifying expert was
discoverable under R.C.M. 701(a)(6) and that the Government was
required to disclose the existence of evidence known to the trial
counsel which reasonably the tends of to the "[n]egate the guilt of the the
punishment," the court held that the failure to disclose was error.
Id. at *4.
In the case at bar, the Government took the position that Dr. MacDonell's testimony added nothing to the testimony of Mr. Bevel and Dr. Radelat.
Addressing that type of argument,
the court in
"We have no doubt that knowledge of the existence of
8 This Court found no constitutional violation in Adens because the withheld evidence helped the Government prove its case, and was not helpful to the Defense. Id. at 732. However, this Court set aside the findings and the sentence based on the statutory violation. Id. at 735.
Attached at Appendix D.
favorable to the appellant and material to an assessment of his
guilt and/or punishment."
(emphasis added) . Addressing the
harmless because their
Government's argument that the error was
expert "would accomplish nothing beyond duplicating the testimony
already offered" by the Defense expert, the court stated, "While we
will not speculate on what [Government expert] might have provided
the defense, the burden is solidly on the Government to prove
would not have aided in the defense case. They have failed to meet
that burden." Id. at *5-6.
The military justice system often affords greater protection
to those accused of crime than its civilian counterparts:
The administration of military justice is rooted in inherent fair play and justice that prevail under the Anglo-American system. "[I]n defining the rights of military personnel, Congress was not limited to the minimum requirements established by the Constitution, and in many instances, it has provided safeguards unparalleled in the civilian sector." United States v. Manuel, 43 M.J. 282, 286 (C.A.A.F. 1995)
United States v. McGraner, 13 M.J. 408, 414 (CM.A.
concerned not trials, but
military courts have a long history of being
servicemembers that the actually public is receiving aware fair a
only with in
citizen can receive a fair trial by court-martial; in other words,
that trials in the military justice system are fair, and appear to
be fair. See United States v. Bragg, 66 M.J. 325, 326 (C.A.A.F.
justice system" in the context of
United States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006)
(regarding "[p]ublic confidence in the integrity and impartiality
of a judge").
3. Ethical Obligation
Prosecutors in general, are subject to additional
and Army prosecutors in particular, guidelines regarding disclosure of
favorable information to the Defense. For example, Rule 3.8 of the
Responsibilities of a Trial Counsel," provides that
A trial counsel shall:
•k -k ie
(d) make timely disclosure to the defense of all evidence or information known to the lawyer that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the lawyer, except when the lawyer is relieved of this responsibility by a protective order or regulation.
Army Reg. 27-26, Legal Services: Rules of Prof'1 Conduct for
Lawyers, R. 3.8 (01 May 1992) (emphasis added). This regulation is
almost identical to Rule 3.8 of the Model Rules of Professional
The American Bar Association
opinion analyzing this Model Rule, and that opinion is relevant to
the instant case. Significantly, the ABA found that this ethical obligation to disclose evidence does not extend only to "material"
evidence, as is required under the constitutional obligation. ABA
Comm. on Ethics and Prof'l Responsibility, Formal Op. 09-454 (July 8, 2009), attached at Appendix E. Instead, "The rule requires
prosecutors to disclose favorable evidence so that the defense can
decide on its utility."10 Id.
Significantly, the opinion discusses the duty to disclose not only information that tends to negate guilt, but also that which
would "mitigate the offense." Id. The opinion gives the following
example of such evidence that is particularly relevant to the
instant case:11 "evidence that the defendant in a
homicide case was
provoked by the victim might mitigate the offense by supporting an
guilty of manslaughter
Very recently the United States Supreme Court reaffirmed the ethical obligation of prosecutors in this regard and specifically
referenced the Rules of Professional Conduct:
Although the Amendment, as
Due Process Clause of the Fourteenth interpreted by Brady, only mandates the
This is consistent with the manner in which courts have construed
this issue - the prosecutor should avoid error by disclosing the exculpatory information, whether the prosecutor thinks it is credible or not. "It was for the jury, not the prosecutor, to decide whether the contents of an official police
record were credible, especially where - as here - they were in the nature of an admission against the state's interest in prosecuting [the defendant]." Lindsey v. King, 769 F.2d 1034, 1040 (5th Cir. 1985).
See Error VII,
disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor's ethical or statutory obligations. See Kyles, 514 U.S. at 437 ("[T]he rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice
Prosecution Function and Defense Function 3-3.11(a) (3d ed.1993)"). See also ABA Model Rule of Professional
3.8(d) (2008) [quoted]. As we have often observed, the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of
Cone v. Bell,
, 129 S.Ct. at 1783 n.15.
The Obligation of Federal Civilian Prosecutors
It is noteworthy that the Government's obligation to disclose
favorable information is at the forefront of civilian jurisprudence
today. Although not binding on Army trial counsel, the U.S.
which governs the conduct of federal civilian
prosecutors, specifically addresses the issue and states that the
purpose of such disclosure is to "ensure that trials are fair."
United States Attorneys' Manual, Ch. 9-5.001A.12 Interestingly, the
Manual explicitly states that, prosecutors, "It is the obligation of federal to seek all exculpatory and
in preparing for trial,
impeachment information from all the members of the prosecution
team." Id. at 9-5.001B.2 (emphasis added). The obligation to
discover and disclose applies "regardless of whether the prosecutor
believes such information will make the difference between
conviction and acquittal of the defendant." Id. at 9.5001C.1.
Attached at Appendix F.
The current Attorney General of the United States recently
moved to set aside a guilty verdict and dismiss the indictment
against former Senator Ted Stevens after a new set of prosecutors
determined that the original prosecutors on the case had failed to
Stevens case at Appendix G.13 While not controlling law,
precedents are consistent with Article 36 of the UCMJ that courtmartial procedures shall, so far as practicable, "apply the
principles of law...generally recognized in the trial of criminal
cases C. in the United States district courts...."
There Was a Bradv Violation in This Case and the Violation Was
A Brady violation occurred in the instant case because there
was a general request for exculpatory information made seven months
before trial, and a specific request on 27 February 2009 inquiring
as to what exculpatory information Dr. MacDonell had, yet the
Government failed to disclose the expert opinion of Dr. MacDonell
until after findings of guilty were returned.
In evaluating this
issue it is important to analyze the obligations incumbent upon
Obligation of Government Counsel
MacDonell was clear that he told the trial counsel and
This case prompted the judge to recommend a change to the federal
discovery rules. See Sullivan Letter at Appendix H.
trajectories and blood stains was that the deceased was shot first
in the ribs while standing and second in the head as he dropped
down. (R. 1462-65.) Thus, the trial counsel had personal knowledge
They had a duty
Defense on Wednesday evening after his demonstration,
or as soon
thereafter as practicable - but unquestionably before releasing Dr. MacDonell to leave Kentucky and return to New York the next day.
Furthermore, in addition to Dr. MacDonell, another Government
expert, Dr. Berg, was aware of the favorable information because he
was present for the demonstration on Wednesday, and on Thursday,
Dr. MacDonell told him in the courtroom during trial immediately
after ILT Behenna described the shooting that the scenario was
had described and
Government trial team with SGT MacCauley the day before.
MacDonell and Berg were members of the prosecution team, and agents
of the prosecutors; their knowledge was imputed to the prosecutors.
Mahoney, 58 M.J. at 34 8.
that trial counsel did not realize
their duty to disclose on Wednesday, when they heard ILT Behenna's account of the shooting on Thursday, they were on notice that ILT
Behenna's account was consistent with the account Dr. MacDonell had
informed them the day before was the only logical explanation of
the shooting based on the forensic evidence. This undoubtedly
opinion, as Dr. MacDonell would have corroborated ILT Behenna and
cast doubt on the "eyewitness" testimony upon which the Government
inquire further once they were put MacDonell was
on specific notice that Dr. Friday
in possession of favorable information on
morning. Lead defense counsel advised them of his conversation with
Dr. MacDonell, including the fact that Dr. MacDonell had refused to
reveal that information to defense counsel and had told him to ask
counsel that Dr.
MacDonell had no favorable information.14
never disclosed the favorable information
until a member of their team - Dr. MacDonell - specifically asked
them to do so. This was after a verdict had been returned.
Obligation of Defense Counsel
without any request from the Defense. However, a written discovery request was made on 28 August 2008 in this case, and a specific
oral request for the content of Dr. MacDonell's opinion was made at
a time prior to
the members being instructed on the law before
14 Even after trial counsel received Dr. MacDonell's email, she still was unwilling to concede that his information was exculpatory: "I am not sure that I believe that Mr. MacDonnell's [sic] new opinion is exculpatory, but I wanted to send it to you in an abundance of caution." AE LXXVI; Appendix B.
final argument on the merits. Defense counsel did all that the law
requires, and all The that reasonably judge could be expected found under that the the
defense counsel acted at "the first reasonable opportunity under
the circumstances to address the matter with the Government," and
that his actions were "both understandable and reasonable under the
circumstances." Military Judge's Findings of Fact dated 20 March 2009, AE XCI (para. 18); Military Judge's Conclusions of Law dated
20 March 2009, AE XCI (para. 2) . The Defense cannot waive the
Government's duty to disclose.
3. The Information Was Favorable and Material,
Government's Failure to Disclose Was
This was a hotly contested case. The Government presented the
testimony of two witnesses trial counsel characterized as
sitting when ILT Behenna began interrogating him.
Based on this testimony, trial counsel argued that Ali Mansur was
sitting at the time ILT Behenna shot him,
despite the fact that (R. 773,
neither witness actually observed the shooting itself.
873.) On the other hand, ILT Behenna did take the stand and testify
as to the events that led to the shooting. His account was
only by the
forensic evidence as
analyzed by the
experts the Defense called, but also by one of the premier experts
in this field Dr. MacDonell.
Dr. MacDonell's expert opinion that the deceased was standing
when the first shot struck him in the ribs and then the second shot
struck him in the head as
dropped to the ground is material
because it cast doubt on ILT Behenna's guilt.
corroborated ILT Behenna's testimony, wholly supported Mr. Bevel's and Dr. Radelat's testimony, and impeached the inference from the
testimony of SSG Warner and Harry, the two alleged "eyewitnesses,"
that because Ali Mansur was sitting when the interrogation began, he was sitting when he was shot.
Had the Government timely disclosed Dr. MacDonell's opinion Wednesday night or Thursday morning, prior to ILT Behenna's
testimony, or even at the conclusion of ILT Behenna's testimony,
the Defense could and would have called Dr. MacDonell as a witness
regarding the forensic evidence and performed the demonstration he
had done with SGT McCauley the night before. Had the Government
disclosed Dr. MacDonell's opinion in response to the lead civilian
defense counsel's specific request after the close of evidence but
before instructions on findings, the Defense could have and would
have moved to reopen the case pursuant to R.C.M.
called Dr. MacDonell as a witness to testify
demonstration. Given the close state of the then-existing evidence,
and the exculpatory nature of this withheld evidence, it would have
been prejudicial error had the military judge not granted a motion
The impact Dr. MacDonell's testimony confirming the defense
evidence and impeaching the prosecution witnesses could have had on
the members cannot be understated. When considering the impeachment
value of Dr. MacDonell's testimony as it relates to key Government
witnesses SSG Warner and Harry about Ali Mansur being last seen sitting on a rock, it is important to note that the Court of
Military Appeals stated the following: "The fact that court-martial members believe a witness despite circumstances A and B, which tend to impair his credibility, does not mean they will continue to
believe him if impeaching circumstance C is added." United States
16 M.J. 258, 265-66 (CM.A. 1983).
even if the
members believed SSG Warner and Harry despite the testimony of Dr. Radelat and Mr. Bevel, that does not mean they would have continued to believe SSG Warner and Harry if Dr. MacDonell's testimony were
added to the case.
Furthermore, the courts have long recognized that the opinion
of a neutral, independent expert carries more weight than one
called by the Defense. See Bailey v. Rae,
339 F.3d 1107, 1116 (9th
("Cumulative evidence is one thing. Unique and relevant
evidence offered by a disinterested expert is quite another.").
This is especially true in the instant case, considering that Dr.
MacDonell was a Government witness,15 and the military judge,
sponte, gave a limiting instruction on the weight to be given to
opinion would have "wholly supported the opinion of the defense
expert [s]" and thus was both favorable and material. Mott, 2009 WL
4048019 at *4. It is significant that Dr. MacDonell has been
described as "THE expert or THE granddaddy of blood spatter." Ex
(emphasis in original);17 see United States v.
435, 445 (C.A.A.F. 1996) (no harm from
expert because Dr. MacDonell "provided excellent testimony" that
convinced the members and the Air Force Court of Criminal Appeals
that the Government expert was wrong); United States v. Mustafa, 22
M.J. 165, 166 (C.A.A.F. 1986) (Dr. MacDonell is "the preeminent
practitioner in the field [of blood-flight analysis]").
The military testimony was not judge specifically found cumulative. (R. that Dr. MacDonell's Judge's
Findings of Fact dated 20 March 2009, AE XCI
17). Had the
The Government obviously had confidence in Dr. MacDonell's abilities,
or else trial counsel would not have requested that the Convening Authority authorize his employment as a Government consulting expert and possibly a
This drew a Defense objection, which was overruled. Attached at Appendix I.
significantly strengthened the
substantial doubt on, and
evidence. Kyles, Also, had
514 U.S. at 429. the Government made the Defense aware of this
the Defense in final argument would have
been able to drive home the fact that the Government's own expert contradicted the "eyewitnesses" and then could have been able to
unreasonable and impossible. Clearly, this evidence was material.
Because the Government failed to disclose favorable
information that the Defense specifically asked the Government to
disclose, the Government has the burden to prove that the failure
Webb, 66 M.J. at 93. The
was harmless beyond a reasonable doubt. Government cannot make such a showing.
comply with the constitutional, statutory, procedural, and ethical
requirements relating to disclosure of favorable information. The
members were deprived of crucial evidence.
should find that the Government's lack of
confidence in the outcome of the trial.
Two murder cases where Brady violations resulted in new trials
are illustrative, and have very similar fact patterns to the case
at bar. In the first case, the Tennessee Court of Criminal Appeals
Bennett, No. 03C01-9304-CR-00115, 1994 WL 53645 (Tenn. Crim. App.
(unpub.).18 The prosecution theory was that the
deceased was unarmed, and thus there was no need for the defendant
to shoot him.
After the evidence of both parties had closed,
defense saw a photograph on the prosecutor's table indicating that
the deceased had two knives in his pocket when he was killed. Id.
at *5. The Tennessee Court of Criminal Appeals stated that this was
evidence favorable to the defendant, and could have been used to
more strenuously emphasize the threat the deceased posed, or at the
very least, as a valuable impeachment tool. Id. at *6. In the case
at bar, Dr. MacDonell's expert opinion that the most logical
standing with his right arm outstretched when he was shot first in
the chest and then in the head was material for exactly the same
reasons: to show that at the time of the shooting he was perceived
as a threat to ILT Behenna, and to impeach the "eyewitnesses,"
Harry and SSG Warner.
In Bennett, the prosecution claimed Bennett waived the error
by failing to move for a mistrial or to reopen.
Given the short
time allowed defense counsel to move to reopen (five minutes), the
Court of Criminal Appeals found no waiver, even though at that time
defense counsel knew of the photograph but elected not to reopen.
Attached as Appendix J.
Id. at *7. In the case at bar, defense counsel moved for a mistrial
verdict already had been announced in open court.
In a holding that is very instructive for the instant case,
the Bennett court stated that even if it were inclined to find
photograph would prohibit it. Id. The prosecutor there argued to
the jury that the deceased was unarmed and the self-defense theory
was invalid. In reversing the conviction, the court wrote: "Thus,
the state knowingly advanced an inappropriate theory to the jury in an attempt to capitalize on an error of its own making. Were we to
allow this situation to go unremedied, we would neglect our
obligation to grant relief when errors result in prejudice to the judicial process." Id.; see Benn v. Lambert, 283 F.3d 1040, 1060
(9th Cir. 2002) (finding Brady violation where prosecution
suppressed expert report that concluded fire was accidental and
stressed importance of arson theory to jury). In the case at bar, the Government did exactly the same thing.
Behenna's testimony (which was "just exactly what I [Dr. MacDonell]
had told you yesterday") , the trial counsel argued to the members
that ILT Behenna's self-defense theory was incredible and
sitting on a rock.
The trial counsel specifically addressed the
forensic evidence in a manner that was completely contrary to Dr.
MacDonell's exculpatory expert opinion. Just as in the Bennett and Benn cases, the trial counsel advanced an inappropriate theory to
prejudiced the judicial process.19
The second murder case with a fact pattern very close to that
in the case at bar is a Texas opinion granting habeas corpus relief
- a new trial. Ex Parte Mowbray, 943 S.W.2d at 466. The Texas Court
prosecutor did not timely disclose a report that was favorable to
the defendant from a state's bloodstain analysis expert who did not
testify. Coincidentally, the state's bloodstain analysis expert who
did not testify in Mowbray was Dr. Herbert Leon MacDonell - the
coincidentally, the defense in Mowbray called an expert to testify during its case in chief - the very same Tom Bevel who testified on ILT Behenna's even behalf. though Significantly, the state had the court found Dr. a Brady
favorable report to the defense "ten days to two weeks prior to trial." Id. at 464 (emphasis added).
See Error IV, infra.
evidence during trial (Bennett), and even before trial
it is clear that reversible error occurred in the case at bar.
Defense did not discover the favorable evidence until after
members had returned their guilty findings.
D. The Military Judge Should Have Granted a Mistrial.
The military judge was aware of the relevant facts regarding this issue. He had authority to take remedial action. Webb, 66 M.J.
at 92. R.C.M. 915 states that a military judge may "declare a
mistrial when such action is manifestly necessary in the interest
of justice because of circumstances arising during the proceedings
which cast substantial doubt on the fairness of the proceedings."
R.C.M. 915. He should have declared a mistrial and set aside the
findings and the sentence.
Instead, the military judge misapplied the law and erroneously
determined that the Government's failure to timely disclose Dr.
MacDonell's opinion was harmless. He based his conclusion on two
grounds: that Dr. MacDonell's testimony would not have been
admissible, when he
and that ILT Behenna lost his right of self-defense the shooting. Military
"assaulted" Ali Mansur prior to
Judge's Conclusions of Law dated 20 March 2009, AE XCI
The Admissibility of the Evidence is Not Determinative
The military judge abused his discretion when he determined
that Dr. MacDonell's testimony would have been merely a comment on
witness credibility rather than evidence that would have weakened
the Government's case and strengthened the Defense case.
Furthermore, the admissibility of the evidence specifically is not the focus of the Brady analysis. Roberts,
The Military Judge Misapplied the Law
defense beyond a reasonable doubt,20 produced no evidence that ILT
Behenna's use of his weapon on this occasion was unlawful.21 (See
Error V, infra, for further discussion of the self-defense issue.)
law that any evidence
irrelevant based on his determination that ILT Behenna committed an
assault and therefore lost his right to self-defense. His incorrect conclusion, to be reviewed de novo by this Court, was based on a
clearly erroneous finding of fact.
ILT Behenna did not testify he
Bad judgment and violation of standard operating procedures, to which
ILT Behenna admitted, do not equate to a violation of the criminal law. See United States v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000). The Government produced no witness, document, or other evidence regarding the lawfulness or unlawfulness of an Army officer pointing a weapon at a suspected terrorist in a combat zone.
Mansur,22 he merely stated it was a "bad decision" and not an
interrogation technique authorized by standard operating procedures
the military judge applied an incorrect legal He conducted a sufficiency of the evidence
analysis to the case.
analysis, rather than an evaluation of whether ILT Behenna received
a fair trial.
(citing Kyles v.
The Military Judge Should Have Granted a New Trial.
In the alternative, the military judge should have granted the
Motion for New Trial. One ground upon which a military judge may
grant a new trial is the discovery of new evidence that:
discovered after the trial;
2) could not have been discovered at
the time of trial in the exercise of due diligence; and 3)
light of all other pertinent evidence, would probably produce a
substantially more favorable result for the accused. R.C.M.
1210(f) (2). Dr. MacDonell's undisclosed opinion meets all of these
criteria. It was discovered after the members had returned their
The military judge found that lead defense
counsel acted reasonably and as soon as was practicable under the circumstances. Military Judge's Findings of Fact dated 20 March
2009, AE XCI (para. 18). Therefore, lead defense counsel exercised
Military Judge's Conclusions of Law dated 20 March 2009, AE XCI
due diligence. Finally, the military judge specifically found that the new evidence would not have been cumulative. Military Judge's
Findings of Fact dated 20 March 2009, AE XCI (para. 17) . This
evidence not only would have impeached the evidence upon which the
Government relied for its theory, but also would have strengthened the Defense case (including final argument) and altered trial
counsel's argument to the members. Contrary to the military judge's
conclusion of law that the Government's failure to timely disclose
the information was harmless beyond a reasonable doubt,23 it is
clear that this evidence could and would have made a difference.
judge had not
abused her discretion in ordering a new trial when the Government
failed to disclose the fact that a key witness (the observer in a
had received nonjudicial punishment;
found that, "it was probable that had the prosecution provided the
nonjudicial punishment to the defense, it would have produced a
substantially more favorable result for Appellee - in other words,
it undermined confidence in the outcome of the trial." Webb, 66
undermines confidence in the outcome of ILT Behenna's trial.
Military Judge's Conclusions of Law dated 20 March 2009, AE XCI
Counsel Failed to Disclose Favorable
actions, he reversibly erred. The harm to ILT Behenna is clear. Had the Government complied with its obligation to disclose Dr.
MacDonell's opinion, the Defense would have had additional strong
evidence supporting its
case and contradicting the Government's
case. It is likely that the fact that this evidence was withheld
resulted in a conviction and a lengthy sentence. The harm is not de minimus. The adversarial process did not function properly, and the risk of a false conviction and an excessive sentence was multiplied
exponentially. See ABA Opinion at Appendix E.
Therefore, this Honorable Court should set aside the findings
and the sentence.
ARGUMENT PERTINENT TO ERROR IV (IMPROPER TRIAL COUNSEL ARGUMENT)
A. Standard of Review.
trial counsel where there was an objection for prejudicial error
under Article 59, UCMJ, and those for which there was no objection
(C.A.A.F. 2005) ,24
It should be noted that the first basis for relief set out below was
not known to any defense counsel at the time the comments were argued, and it would be an extremely onerous burden to place on defense counsel to require an objection when this basis was not known at the time of the error.
It is Prosecutorial Misconduct to Argue Facts One Knows to Be
False or Has Very Strong Reason to Doubt, Which Contradicted by Evidence Not Presented to the Jury.
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Fletcher, 62 M.J. at 179 (quoting Berger v. United States, 295 U.S.
78, 88 (1935)).
"In representing the United States, a federal prosecutor has
a special duty not to impede the truth." United States v. Reyes,
577 F.3d 1069, 1077 (9th Cir. 2009). A "prosecutor's opinion
carries with it the imprimatur of the Government and may induce the
jury to trust the Government's judgment rather than its own view of
the evidence." United States v. Young, 470 U.S. 1, 18-19 (1985).
documented backdated options
issue at trial was whether Reyes had a criminal intent to deceive
when he signed off on the financial statements that the finance
prepared. well aware
higher-level finance employees gave statements to the FBI stating
statements. However, only a lower-level finance employee testified
at trial, and she testified she and others did not know of the
back-dating. Although the defense counsel argued to the jury that
the higher-level employees knew about the backdating (even though
such witnesses had not testified) , the prosecutor argued that they
did not: "finance did not know anything." "Our theory is that those
The court found
Because "The prosecutor asserted as fact a
proposition that he knew was contradicted by evidence not presented to the jury," the court found error. Id. at 1076.
Moreover, the court found the error harmful, in part, because
the prosecutor's false statements occurred during final argument
and went to the main issue in the case - the defendant's criminal
"The record demonstrates that the prosecution argued to
the jury material facts that the prosecution knew were false, or at the very least had strong reason to doubt." Id.
the trial counsel's arguments in the instant case
went to the heart of the case - whether ILT Behenna perceived an
imminent threat from Ali Mansur and acted in self-defense. The
Government argued at the hearing on a motion for mistrial that they
did not know for sure what their expert witness would say, and that
is why they sent him home without testifying and did not inform the Defense of his demonstration or opinion. First of all, knowing what they did, they had an obligation to seek and clerify his opinion.
affidavit - to support that argument. No one - none of the three
trial counsel, neither of their two other experts (pathologist and
psychiatrist) , nor the sergeant in the demonstration,
under oath denying that Dr. MacDonell did in fact demonstrate his theory or that he told them both on Wednesday and Thursday that it was the only logical explanation of the evidence.
Thus, a key concept in Reyes applies directly to this case: "it is improper for the government to present to the jury
statements or inferences it knows to be false or has very strong
reason to doubt." Id.
312 F.3d 962, 968
(citing United States v.
In the instant
hearing the sworn testimony of Dr. Radelat,
Behenna, combined with the undisclosed opinion rendered by its own
forensic scene reconstruction expert, clearly the trial counsel
knew her statements were false, or without question had very strong
reason to doubt that they were true. Given the evidence, how could
she give the imprimatur of the United States
Government to the
"impossible"? It must be
emphasized that no
lodged on the
knew to be
contradicted by evidence not presented to the members because no
defense counsel knew of Dr. MacDonell's evidence until after the
verdict on findings. In reversing the Reyes conviction, the Ninth Circuit stated:
Deliberate false statements by those privileged to represent the United States harm the trial process and the integrity of our prosecutorial system. We do not lightly tolerate a prosecutor asserting as a fact to the jury something known to be untrue or, at the very least, that the prosecution had very strong reason to doubt.
Reyes, 577 F.3d at 1078.
contradicted by evidence not presented to the members: "if s almost
impossible to conclude either that he [Ali Mansur] was sitting or
standing," knowing that her own expert described the exact same
scenario that Ali Mansur was standing when first shot as "the only logical explanation" of the forensic
evidence that anyone had told her
conclude" that issue.
Trial counsel was disingenuous when she asserted she did not
"bother to rebut" the defense forensic evidence "because we have
before the first shot) , "and even more than that, we have a story
interested and unreasonable." (R. 1411.) She stated this as fact to
the members, all the while knowing that the demonstration by Dr.
MacDonell on Wednesday of the "only logical explanation" of the
forensic evidence matched exactly the testimony by ILT Behenna on
If there could be doubt that reversal is required, the final
plea to the members
doubt: "[h]is story is incredible, and I ask you to look at all of the evidence in deciding whether or not you actually have a
reasonable doubt." (R. 1412-13)
(emphasis added). Counsel for ILT
Behenna ask the judges on this Honorable Court to consider that the Government did not present all of the evidence, nor did it inform
the Defense of the undisclosed evidence so it could present that evidence to the members so they could look at all of the evidence.
C. It is Prosecutorial Misconduct to Interject Personal Views of the Evidence and Comments
on the Defendant's
In Fletcher, the Court of Appeals for the Armed Forces found
plain error in a prosecutor's description of Fletcher's defense as
"nonsense," "fiction," "unbelievable," "ridiculous," and "phony."
defense as "incredible," "makes no sense whatsoever," "we have a
story that is reasonable versus a story that is incredibly selfinterested and unreasonable," and "impossible." This error, among others, led the Court of Appeals for the Armed Forces to find
material prejudice to Fletcher's substantial rights,
his conviction. Fletcher, 62 M.J. at 185.
the Court of Military Appeals reversed a conviction without objection, the
because the trial counsel had described,
accused's testimony as a "fairy tale," "incredible at
least," "foolishness," and "beyond the grounds of
reasonable I know about," and had argued,
doubt whatsoever that [the accused]
"in my mind there is no
was in fact involved in this
matter as a principal." United States v. Knickerbocker, 2 M.J. 128, 129 (CM.A. 1977) . How do plus the the previously set out following plea: "I statements by the only
interpretation of the facts is that [ILT Behenna] took advantage of
that and executed him" differ from the statements in Knickerbocker?
(emphasis added). The concurring opinion referenced the
ABA standard, "The Prosecution Function," as guidance for the law
in the court-martial process. Knickerbocker, 2 M.J. at 130. The ABA
standard that exists today describes in relevant part:
Argument to the jury
In closing argument to the jury, the prosecutor may argue
all reasonable inferences from evidence in the record.
The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may
The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
ABA Standards for Criminal Justice 3-5.8(a)-(b).
Because the trial counsel during closing final argument
asserted facts to the members she knew to be false, or based on her
knowing her assertions were contradicted by evidence not presented
to the jury, and 2) interjected her personal view of the evidence
and the credibility of the accused on a crucial issue, this
Honorable Court should set aside the findings and the sentence.
ARGUMENT PERTINENT TO ERROR V (SELF-DEFENSE INSTRUCTION)
Standard of Review.
instruction the military judge gave to the members de novo.
States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)
omitted) . If the Court finds error, the Government must show that
the error was harmless beyond a reasonable doubt.
harmless beyond a reasonable doubt is whether, beyond a reasonable
doubt, the error did not contribute to the defendant's conviction
at 87. (citations omitted).
or sentence." Id.
Self-Defense Instruction Was Appropriate.
provide necessary guideposts for an informed deliberation on the guilt or innocence of the accused." United States v. Bearing, M.J. 478, 479 (C.A.A.F. 2006)
Louisville & Nashville R.R.
object of the instructions was to impart such information as would
conclusion in their verdict.")).
Self-defense is a special defense to murder. The Defense presented evidence that ILT Behenna
defense. (R. 959, 961-62, 980-83, 1233-34.) Therefore, the military
judge was required to instruct the members regarding the issue.
Law with Regard to Losing and Regaining the Right to Act in
Servicemembers can lose their right to act in self-defense in several ways;
regain the right under certain
Loss of right to self-defense. The right to self-defense
is lost and the defenses described in subsections (e) (1),
(2), and (3) of this rule shall not apply if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to the apprehension, unless the accused had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred.
Controlling case law supplements this rule by providing two
more ways in which one can regain the right to self-defense:
escalation and inability to withdraw. The Court of Appeals for the Armed Forces has stated that, "an initial aggressor is still
entitled to use deadly force in his own defense,
just as he would
be if he withdrew completely from combat and was then attacked by his opponent, in instances where the adversary escalates the level
of conflict." Dearing,
63 M.J. at 483. The Court also held,
physically impossible for him to withdraw, even if he had wanted
to, is, as noted above, not addressed in R.C.M. 916(e)(4). We do
not believe that the President, in promulgating this Rule, intended
the absurd result of requiring a mutual combatant or even an
initial aggressor, to withdraw when he is physically incapable of
doing so." Lewis, 65 M.J. at 89. instruct the members as to all of at
The military judge must
these issues when raised by the evidence. Id.; Dearing, 63 M.J.
The Instruction Given Was Incomplete and Inadequate.
The challenged limiting instruction given over objection began
with this definition of assault: Now there exists evidence in this case that the accused
may have been assaulting Ali Mansur immediately prior to
the shooting by pointing a loaded weapon at him. A person
who without provocation or other legal justification or excuse assaults another person is not entitled to
self-defense unless the person being assaulted escalates the level of force beyond that which was originally used.
The military judge did not instruct the members as to all of the ways that ILT Behenna could recover his right to self-defense
i f he had lost it. The Court of Appeals for the Armed Forces has
held that the members must be given this information.
M.J. at 89; Dearing, The
63 M.J. at 483. issue
assault, he regained his right to self-defense if, as in Lewis, he
was "unable to withdraw in good faith." Lewis,
at 89. ILT
Behenna testified that the reason he fired his weapon is that Ali
Mansur threw a piece of concrete at him, stood up, and reached for
his weapon - and that all of this "happened fast." (R. 1234.) members should have been permitted to find that even if The they
determined that ILT Behenna had committed an assault, he regained his right to to self-defense withdraw in either good because faith or he did not Ali have an
escalated the conflict, or both. The instruction given did not even
mention the opportunity to withdraw, nor did it explain escalation; therefore, it was incomplete and erroneous.
justification or exuse.
The Instruction Was Confusing and Required Escalation to Act
The application portion of the instruction attempted to inform
the members that ILT Behenna could exercise his right to self-
defense if the Government had not proven beyond a reasonable doubt
ILT Behenna assaulted Ali Mansur;
Ali Mansur did not provoke ILT Behenna; or
ILT Behenna did not have some other legal justification
instruction on regaining the right, such as via withdrawal or the inability to withdraw), an additional error in this paragraph is the fact that after the military judge listed the three
he linked them to the issue of escalation by
stating that if they found the Government had not proven one of
those three things, ^and" they found escalation, only then did ILT
erroneous. The instruction was defective in this regard because it
should have used the word "or" instead of "and, " to make escalation
the fourth potential scenario that would have left ILT Behenna's
to self-defense intact
(the instruction also should have
included inability to withdraw as a fifth potential). ILT Behenna could have retained or regained his right to act
in self-defense even if Ali Mansur had not escalated the conflict,
or that ILT
escalation necessary for the right to self-defense to exist. The confusion this instruction caused is apparent - of the
three questions the members asked about the instructions prior to closing for deliberations, one requested a written copy of the
instructions and another sought clarification of this instruction:
"Explain how an assault with a weapon nullifies
argument." (R. 1425-27); AE LXXV.
F. The Erroneous Instruction Lowered the Government's Burden.
The Government had the burden to disprove, beyond a reasonable
the justification of
theory underlying the military judge's instruction was that ILT Behenna lost his right to self-defense because he
an "assault," the
among other elements,
the element of unlawfulness.26 The
military judge did not instruct the members as to the elements of
an offer type assault. Furthermore, the Government did not present
any evidence at all that ILT Behenna's pointing his weapon on this
occasion was unlawful. The Defense argued during final argument
that certainly such pointing could not be unlawful, or else every
"An *offer' type assault is an unlawful demonstration of violence.
servicemember who uses a weapon in the context of a combat zone -
in clearing a house - would be violating the UCMJ
place in a
It is important to emphasize that this
combat zone, where ILT Behenna was
pointing a weapon at a suspected enemy insurgent outside the wire;
this is a far cry from a man pointing a weapon at a fellow patron
in a bar in a peace-time environment. There was no evidence or even
argument to the contrary.
The legal effect of this additional, uncharged liability was
that rather than instructing the members on the elements of an
offer-type assault under Article
instructed the members that such use of the weapon stripped ILT
Behenna of his right to self-defense. This relieved the Government of its burden of disproving self-defense beyond a reasonable doubt, because they did not have to prove all of the elements of assault
in order to show that ILT Behenna lost his right to self-defense by
committing such an assault. All the Government had to show was that
ILT Behenna pointed his weapon at Ali Mansur.
This shortcut was insufficient and improper, because it failed
to hold the Government to its burden of disproving self-defense
beyond a reasonable doubt.
military judge, in effect,
By so instructing the
instructed them that ILT Behenna had
lost the right to self-defense and was guilty of murder.
Improper Comment on the Weight of the Evidence. The self-defense instruction given was an improper comment on the weight of right the to evidence, and impermissibly The military restricted judge told ILT the
members in effect that if ILT Behenna pointed his pistol at Ali
Mansur, he committed assault on the deceased, and lost his right to
self-defense. (R. 1317.)
The military judge may decide,
instruction is appropriate:
sua sponte, that a particular
The military judge may summarize and comment upon evidence in the case in instructions. In doing so, the military judge should present an accurate, fair, and dispassionate statement of what the evidence shows; not depart from an impartial role; not assume as true the
existence or nonexistence of a fact in issue when the
evidence is conflicting or disputed, or when there is no evidence to support the matter; and make clear that the members must exercise their independent judgment as to
see United States v.
appropriate for the military judge's instructions to summarize and
commentary must be accurate, fair, dispassionate, and accomplished without partiality."). The military judge went beyond an accurate, fair, impartial
recitation of the facts with regard to self-defense. The fact that
ILT Behenna pointed his weapon at Ali Mansur was not disputed; but
the military judge applied that
theory of legal liability upon ILT Behenna that even the Government
counsel had not proposed27 or proved officer pointing a
zone, without more,
that a U.S. Army infantry
in a combat
was unlawful and therefore an assault.
The military judge drew a legal conclusion from the evidence
vice summarizing the evidence for the members. This was an improper
comment on the evidence and constituted reversible error.
The Error Was Not Harmless Beyond a Reasonable Doubt. The Government cannot show that this error was harmless beyond
a reasonable doubt. The unrebutted forensic evidence supported ILT
Behenna's account of the shooting, corroborating his testimony.28
ILT Behenna was the only witness at trial who was in a position to
testify as to what happened immediately prior to the
is highly likely that the members could have:
1) believed ILT Behenna's testimony as to Ali Mansur throwing concrete and reaching for the weapon, resulting in ILT
Behenna's fear for his l i f e ;
27 Trial counsels' opening statement and final arguments are completely devoid of any allegation or legal conclusion that ILT Behenna committed an
assault as the military judge instructed the members.
28 Clearly this point would have been stronger but for the Government's failure to disclose Dr. MacDonell's opinion concurring in the relative positions of ILT Behenna and Ali Mansur immediately prior to the shooting. See Errors I, II, and III supra.
2) felt that based on the military judge's instruction, they must find him guilty, since he admitted to pointing the weapon at Ali Mansur and thus lost the right to defend himself.
The military judge simply gave the members no choice - they
must find ILT Behenna guilty of murder if they found that he
pointed his weapon at Ali Mansur. This Honorable Court should have
a reasonable doubt as to whether this incomplete and erroneous
instruction affected the findings or the sentence. The military judge's erroneous view of the law also affected
the case when he denied the motions for mistrial and a new trial
based on his conclusion of law that ILT Behenna had lost his right
to self-defense.29 Military Judge's
Conclusions of Law dated 20
March 2009 and 15 May 2009. AE XCI, AE XCV. It is apparent that he
reached that incorrect conclusion of law based on his clearly
erroneous finding of fact that ILT Behenna had admitted that he had
no legal justification or excuse for pointing his weapon at Ali
Mansur. See Military Judge's Conclusions of Law dated 20 March
2009, AE XCI (para. 4b) . As stated earlier, careful review of ILT Behenna's trial testimony reveals no such admission. He merely
stated it was a "bad decision" and not an interrogation technique
authorized by standard operating procedures (R. 1231-32.)
Therefore, this Honorable Court should set aside the finding
of guilty of unpremeditated murder and the sentence.
29 The military judge determined as a matter of law that ILT Behenna had no right to self-defense, yet he instructed the members regarding the defense.
ARGUMENT PERTINENT TO ERROR VI
A. Standard of Review.
This Honorable Court must review the record to assess factual
sufficiency of the evidence. United States v.
(CM.A. 1987); Article 66(c), UCMJ, 10 U.S.C.
Turner, 25 M.J. 324
§ 866. The test for
factual sufficiency is "whether, after weighing the evidence in the
record of trial and making allowances for not having personally
observed the witnesses, the members of [this Honorable Court] are
themselves convinced of the accused's guilt beyond a reasonable
to Disprove Self-Defense Beyond a
The Government had the "burden of proving beyond a reasonable
doubt that the defense did not exist." R.C.M. 916(b) (1). There was
only one witness who testified who was in a position to actually
see what happened immediately prior to ILT Behenna firing the first
shot at Ali Mansur ILT Behenna. His testimony was the only
credible eyewitness evidence as to the circumstances surrounding
The lighting conditions, distances, and angles involved were
such that neither Harry nor SSG Warner, the two Government
"eyewitnesses," was able to see whether Ali Mansur threw the piece
of concrete at ILT Behenna and stood up to reach for ILT Behenna's
weapon prior to the first shot.
On the other hand,
ILT Behenna was in the best position to
tell the members what happened and why he took the actions he took.
Multiple witnesses took an oath and testified that he is, in fact, a truthful person. (R. 1079-80, 1084, 1088-91, 1106.) The
truthfulness or his credibility. acquitted him of the
It is telling that the members of making a false official
statement.30 (R. 1438.) Significantly, the uncontroverted forensic
evidence corroborated ILT Behenna's account of the
rebutted theory. the Government's "executed while sitting
on a rock"
There simply is an insufficient basis to convict ILT Behenna
of unpremeditated murder. ILT Behenna submits that the evidence is
insufficient for the members of this Honorable Court to be
self-defense beyond a reasonable doubt. Therefore, this Honorable Court should set aside the finding
of guilty of unpremeditated murder and the sentence,
that charge for factual insufficiency.
As argued in Error V, supra, the erroneous instruction limiting ILT
Behenna's right to self-defense explains why the members could have believed ILT Behenna yet found him guilty of murder - they had no choice. Since he admitted pointing his weapon at Ali Mansur and the military judge instructed them that constituted an assault which forfeited the right to self-defense, i t was reasonable for them to conclude that ILT Behenna lost his right to act in selfdefense. Therefore, there is no basis to conclude that because the members found
ILT Behenna testimony.
ARGUMENT PERTINENT TO ERROR VII
A. Standard of Review.
This Honorable Court will review required instruction error de
novo. Lewis, 65 M.J. at 87.
Duty of the Military Judge.
It is undisputed that the military judge has a sua sponte duty
to fashion appropriate instructions for the members. United States
v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). This is true even in the
absence of a requested instruction or objection from the parties.
United States v. Gutierrez, 64 M.J. 374, 377 (C.A.A.F. 2007). In
required to instruct on a lesser included offense if the evidence
United States v.
Manslaughter as a
Lesser Included Offense.
The following instruction is to be given when the evidence
raises the issue of voluntary manslaughter as a lesser included
offense of murder:
The lesser offense of voluntary manslaughter is included in the crime of unpremeditated murder. Voluntary manslaughter is the unlawful killing of a human being, with an intent to kill or inflict great bodily harm, done In the heat of sudden passion caused by adequate provocation. Acts of the accused which might otherwise
amount to murder constitute only the lesser offense of voluntary manslaughter if those acts were done in the
heat of sudden passion caused by adequate provocation. Passion means a degree of anger, rage, pain, or fear
which prevents cool reflection. The law recognizes that a person may be provoked to such an extent that in the heat of sudden passion caused by adequate provocation, he
strikes a fatal blow before he has had time to control
himself. A person who kills because of passion caused by adequate provocation is not guilty of murder. Provocation is adequate if it would cause uncontrollable passion in the mind of a reasonable person. The provocation must not be sought or induced as an excuse for killing or doing
If you are not satisfied beyond a reasonable doubt that the accused is guilty of murder but you are satisfied beyond a reasonable doubt that the killing, although done in the heat of sudden passion caused by adequate provocation, was done with the intent to kill or inflict great bodily harm, you may still find him guilty of voluntary manslaughter. Dep't of Army, PAM 27-9, Legal Services: Military Judges' Benchbook
para. 3-43-2 (15 September 2002) (emphasis added).
In the case at bar, the evidence supported the instruction on
this lesser included offense. There is no dispute that Ali Mansur is dead, and that ILT Behenna shot him with a pistol. However, if
the members found that self-defense did not apply, or followed the
military judge's incorrect limiting instruction that stripped this officer of his right to self-defense because he pointed a pistol
outside the wire at a man he believed to be an enemy insurgent,31
then they should have been instructed to consider whether ILT
throwing a piece of
concrete and reaching
for the Lieutenant's
See Error V,
Given that ILT Behenna was aware of the intelligence reports
linking Ali Mansur to the IED attack on his platoon, resulting in
the death of two of his soldiers and others, his fear of Ali Mansur
clearly raised this issue. In addition, given his undisputed mental condition of acute stress disorder, resulting from several serious childhood stressors plus the then-recent IED attack, the issue of
his anger and rage at Ali Mansur was raised. There was sufficient
evidence to raise the lesser included offense of voluntary
manslaughter if the members concluded the complete defense of self-
instruction) or had been disproved beyond a reasonable doubt by the Government. There is clear controlling precedent that self-defense instructions in a premeditated murder case do not render harmless
a failure to instruct on voluntary manslaughter.
Wells, 52 M.J.
United States v.
(citing United States v.
(no waiver by defense
objection to instruction on any form of manslaughter), and United
States v. Jackson, 6 M.J. 261, 263 n.4 (CM.A. 1979)).
This Honorable Court should set aside the finding of guilty of
unpremeditated murder and the sentence.
The independent and cumulative effect of the errors discussed above deprived ILT Behenna of his right to a fair trial. WHEREFORE, the Appellant, ILT Michael C Behenna, prays that and
the Court set aside the findings of guilty and the sentence,
dismiss Charge II and its specification (unpremeditated murder) for
factual insufficiency; or in the alternative, without waiving the
foregoing, set aside the findings of guilty and the sentence.
B./ ZIMMERMANN, Lead
TERRI R. ^IjtfMERMANN
^vili^n^Appellate Defense Counsel
Civilian Appellate Defense Counsel
Zimmermann,& Sampson, P.C.
770 South Post Oak Lane,
Houston, Texas 77056 (713) 552-0300 (713) 552-0746 Fax
Zimmermann, & Sampson, P.C.
770 South Post Oak Lane,
Houston, Texas 77056 (713) 552-0300
PAMELA PERILLO, CAPTAIN, Judge Advocate Appellate Defense Counsel 901 North Stuart Street, Suite 340 Arlington, VA 222 03
(703) (703) 588-5291 696-8100 Fax
.lian Appellate Defense Counsel Zimmermann, Lavine,
Zimmermann, & Sampson, P.C.
770 South Post Oak Lane,
Houston, Texas 77056 (713) 552-0300 (713) 552-0746 Fax
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