Monday, March 02, 2009

Behenna Gets 25 years at GCM

As our fearless commenter pointed out, 1st Lt Michael Behenna was convicted last week at general court-martial of unpremeditated murder and sentenced to 25 years in jail. See UK reporting here (best coverage I could find). Behenna, for those keeping score, was accused of killing an Iraqi detainee in Tikrit along with SSgt Hal Warner. See prior posts here and here. As we reported last week, SSgt Warner pled guilty to assault, maltreatment of a subordinate and false official statement. He received a 17 month sentence and DD. See AP report here.

Here is the latest reporting on how the incident allegedly coccurred, as taken from the Warner plea
Another soldier, 1st Lt. Michael Behenna of Edmond, Okla., faces trial next week on a murder charge in the death of detainee Ali Mansour Mohammed in May 2008. Prosecutors say Behenna shot Mohammed, then used and incendiary grenade to burn the detainee's body. Warner admitted Wednesday to standing on the detainee's legs while he was defenseless during the assault then days later helping strip Mohammed naked and leaving him in the desert. Prosecutors say Behenna later shot the detainee.
See report here.

The report notes there is a post trial motion pending regarding Brady material, or at least I'll call it that. We'll see what the judge says---post-trial Brady motions don't exactly make me excited unless the defendant's name is Ted Stevens.

H/T Ama Goste, Ama Goste Facebook page (?).

31 comments:

Deuce said...

According to a report - as prosecution expert left, he told defense counsel "too bad they didn't call me, I would have been your best witness" and then left the court to catch a flight. Allegedly this expert witness would have corroborated the defense theory that the deceased lunged at the LT - yet the prosecutors maintained their argument that the Iraqi was sitting when shot. Please note that this is based upon hearsay - I was not present and am basing that on "reports."

If mistrial is declared and due to prosecutorial misconduct - then jeopardy attaches I believe.

Anonymous said...

Coverage here better - also watch video: http://www.koco.com/news/18826737/detail.html

Mike "No Man" Navarre said...

That Anon gal, she is very resourceful. The KOCO report notes that the motion is about a government expert that supposedly would have testified that the victim was standing when shot--which is contrary to the gov't story that he was on the ground and supprots the defense theory that he lunged at the 1st Lt. Not exactly Brady traditional Brady material, but a quick Google search revealed that potentially exculpatory expert reports are Brady material, though we do not know there was a report. See United States v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985) (Brady violation when government failed to disclose ballistics worksheet that showed gun defendant was accused of firing was inoperable), from http://www.pdsdc.org/Resources/SLD/What%20is%20Brady%20Letter.pdf

Dew_Process said...

Brady does not require that material be "exculpatory." That is a common misconception of many Courts and Trial Counsel. It only has to be "favorable" which is a different standard than exculpatory. See RCM 701(a)(6). In fact, the majority opinion in Brady never uses the term "exculpatory," just "favorable."

Assuming that the news reports are 50% accurate - and anyone who knows Jack Zimmermann, knows he's not a BS'er - Trial Counsel may have a problem.

Deuce is correct, constitutional jeopardy [versus Art. 44(b) jeopardy] attached when proof commenced. Retrial would be barred if caused by prosecutorial misconduct. RCM 916(c)(2)(B).

Mike "No Man" Navarre said...

Dew:

I don't think I suggested that Brady was limited to exculpatory material, in fact I even said "potentially exculpatory." The exculpatory language was used by the PD brief that I linked to (though I notice the link did not work), thus I did not want to overstate the lengths of my research, which JO'C can confirm is usually---wait, please don't confirm that.

Whether government expert reports that are favorable to the defense, though not exculpatory (whatever that Venn diagram looks like), qualify as Brady material--well, I will leave that to someone else to research.

Anonymous said...

If this is true, my faith in the UCMJ is shaken to the core...sanctions at least...court-martial at most for this prosecutor!

Anonymous said...

Who are you people, attorneys, law students, or just people with opinions? If a mistrial is declared will there be another trial or is it over and does he walk? My interest is personal. I am related to the SSG that was charged because of this incident. I am interested in this case and in the outcome.

Deuce said...

Per the rumors - prosecutors (Trial Counsel) claim that disclosure was made when defense counsel (Zimmerman) ran into the exiting Gov't witness. Judge was less-than-thrilled with this position, has ordered both parties to brief for hearing on Thursday, and has instructed defense counsel to be ready for motion for new trial.

My thought is "why defense counsel make this motion?" - If I'm the dc, I don't want a new trial, it is the prosecution that needs it. I'm taking my ball and going home.

If I'm the gov't and I argued in closing contrary to what my own experts have told me (all along), then I have a serious credibility problem with the judge (lack of candor).

Bottom line is that you have some military prosecutors (Captains) who probably don't have that much trigger time in the courtroom (not many 0-3 JAs do) and they are about to walk out with a very big lesson regardless of how this all turns out.

A new trial - some of the charges (false statement) is gone (acquited), you have to fly your witnesses back in, you have jeopardy issues now and later, (maybe even a bar complaint &/or AR 27-26 ethics investigation), and your theory that the deceased wasn't coming toward the defendant is also gone, etc. etc.

If Gov't is smart, they'll cut their losses now and offer up something the defendant can't walk away from - a couple of years capped by the Convening Authority.

If I'm defense, I may consider some of the steps that were taken in the Watada case. This is a whole different case now - I'd be asking for a Resignation In Lieu of Court-Martial.

My question goes back to what led to this incident - why would the command ever turn this detainee (who allegedly was involved with killing some of the LT's soldiers) back over back to the same unit that suffered losses?

Anonymous said...

If you go back and look at the characters in this Shakespearean tragedy (Army Ranger from a family of law enforcement types, loses soldier, then told to let insurgent go free, and allegedly/accidently kills him during an interrogation) - I want these movie rights to this screenplay.

Reminds me of the quote from the movie "A Time to Kill" (I don't recall this being in the Grisham book) by the character played by Donald Sutherland: "If he is convicted, justice is done. If he is acquited then justice is done."
Truly one of the great ironies in the big picture.

Dew_Process said...

No Man, I didn't mean to imply that you were advocating the wrong standard, sorry for the angst. I think the issue is that there was no "expert report," which would have had to have been disclosed IAW RCM 701(a)(2)(B).

Duece - I think that the Defense, under the circumstances of the murder conviction, i.e., that the Accused was found NG of the premeditated murder, pretty much requires them to make the Mistrial Motion. But, the follow-up Motion will be to dismiss based upon Fifth Amendment Double Jeopardy grounds, caused by the alleged government "withholding" of favorable evidence.

The burden is on the prosecution to show that Double Jeopardy isn't being violated.

I would not want to be the SJA, and I wonder if the Trial Counsel will be wise enough to "lawyer up" if they in fact withheld the information from the Defense.

All in all, not a good day for the Military Justice system in general, and the Army JAG Corps in particular.

Anonymous said...

Deuce,
Your "report" is very accurate. Add to that that the CDC immediately went to the TC and asked her if there was any Brady material vis-a-vis the expert, and she said "no." Add to that, the expert had an uneasy feeling, and sent a follow-up email to the TC, wondering if his "conclusions" had been turned over as Brady material - apparently figuring he'd be recalled by the Defense - and only then did the government turn the information over.

There was a hearing on this after conviction, because that's when the information was turned over. The MJ [Ted Dixon], ordered further briefing. Because the government opposed the defense's mistrial motion, they went ahead with sentencing.

The MJ did not adjourn the court, merely recessed it. I think the handwriting's on the government's wall, when was the last time anyone heard of a MJ after an Accused gets a 25 year sentence for unpremed murder, defers confinement?

Anonymous said...

Does this mean a new trial or has jeopardy attached preventing further prosecution?

Anonymous said...

I am the "unknown anon" that asked the questions a few days ago. My interest is because of my relation to the SSG. Deuce you explained things pretty well from the defense and prosecutors point of view. When is the mistrial hearing going to be held? Am I reading this correctly and is the LT not incarcerated? Are you attorneys? Do you know a good appeals attorney? Please keep this blog going so I can continue reading about this case. Thanks.

Trey said...

Unk/Anon: I would imagine that the Commanding General (the Convening Authority) has not finalized the conviction of Warner (he/she is the first "appeal"), thus probably waiting to see what happens in this case. If the 1LT walks, the Convening Authority may toss out the conviction or reduce the sentence on Warner.

I belive that the 1LT is not incarcerated.

If there is a new trial - I will be surprised if the same trial counsel (prosecutor) will be allowed to participate (if this is a discovery &/or inappropriate closing argument issue).

Anonymous said...

Wow! I understand the motion was ruled on as favorable information for the defense (Brady violation) but court was recessed for briefs about the outcome set for a later date.
If this blatant nondisclosure took place, what else might the prosecutors know that they haven't released?

Anonymous said...

Again the unk/anon. Thanks Trey.
Once again, please keep up the dialog. I do not know any of you or your sources, but I do know how limited the SSG's family's sources have been. Do you know how long it usually takes before the review is started, if it is actually reviewed, or if it is just "rubber stamped?" We have gotten several different answers to this question. As always, thanks for your responses. Unk/Anon

Anonymous said...

The 1LT is not incarcerated.

Trial Counsel need to be worried about Artile 92, dereliction of duty; and Obstruction of Justice, under Article 134 imho, especially their affirmative misrepresentations to the Defense that their expert had "no exculpatory information!"

The Government is taking the position that the Defense somehow "waived" the Brady issue, by not litigating [what they didn't know] before findings. Arguing "waiver" by the Defense is not only a stretch, but is almost a tacit admission that they intentionally withheld the information.

Added fact was that the expert was so concerned that the TC was not going to disclose the information to the Defense - he knew it was Brady - that he consulted his own counsel before sending TC an email to that effect. The email wasn't disclosed to the Defense until after Findings, which is what kicked off this whole fiasco.

If I'm the Convening Authority, I'm not going to be a happy camper if I've got to pay to retry this case!

Anonymous said...

It's funny how court cases focus on trivialities instead of justice.

One point not addressed, to my knowledge, in the court is that this "officer" was NOT authorized to conduct interrogations. Second, he was pointing a loaded weapon at a detainee's head during the so-called interrogation. Both of which are illegal acc. to law of land warfare. So he put himself in the position where he held this detainee's life in his hands. Who cares if the detainee was standing when he was shot? It was still a murder by a inf. officer who thought he was some kind of cowboy instead of doing his job.

Why did the command release detainee to fifth platoon? These decisions are usually geographically based, and fifth plt was the one that ran that area. No ulterior motive; the command clearly trusted the officer could be trusted to do his job, and bring the detainee back to his house. This is SOP.

If murder was not on the minds of Behenna and Warner-- why did they have an incendiary grenade in the first place? This is not something you carry around with you. Maybe the prosec. could have made a stronger case, but a mistrial? That would be ridiculous.

Anonymous said...

It's funny how court cases focus on trivialities instead of justice.

One point not addressed, to my knowledge, in the court is that this "officer" was NOT authorized to conduct interrogations. Second, he was pointing a loaded weapon at a detainee's head during the so-called interrogation. Both of which are illegal acc. to law of land warfare. So he put himself in the position where he held this detainee's life in his hands. Who cares if the detainee was standing when he was shot? It was still a murder by a inf. officer who thought he was some kind of cowboy instead of doing his job.

Why did the command release detainee to fifth platoon? These decisions are usually geographically based, and fifth plt was the one that ran that area. No ulterior motive; the command clearly trusted the officer could be trusted to do his job, and bring the detainee back to his house. This is SOP.

If murder was not on the minds of Behenna and Warner-- why did they have an incendiary grenade in the first place? This is not something you carry around with you. Maybe the prosec. could have made a stronger case, but a mistrial? That would be ridiculous.

Anonymous said...

Anon 2042: The detainee had been sitting on a rock. The 1LT turned to talk to his interpreter, and the detainee got up and was going for the LT's sidearm when he got shot. Forensically, it was important.

You make a good point about the apparent violation of the law of land warfare - except for reasons unknown, he was never charged with any of that.

Kingsfield said...

I'm only writing this based on what I've seen in the news and here - but if this is the case as it has been portrayed.

I would be very curious to see if the gov't expert was instructed by the trial counsel to specifically not produce a report to attempt to avoid discovery.

As far as the grenade inquiry - why did not the military prosecution put on the cooperating co-accused to testify as to the "why?" They cut him the deal - obviously they wouldn't have done as much without doing a full debriefing. That's what Kastigar is all about. Again - I don't know those kind of details - just what I read in the press.

I do wonder if "Anonymous 8:42" might be a panel member due to the knowledge of facts that I haven't seen public and the lack of understanding that any case is based only on the elements of the charge - not uncharged speculative allegations.

With all of the acquital/dismissals of the Haditha accused, the acquital of the Green Beret at Bragg on a similar case - I wonder if justice would be best accomplished with a "Resig. In Lieu Of," and then in basic fairness have the Convening Authority toss the co-accused's conviction and do a administrative chapter out of the Army. Both result in a less-than-Honorable discharge.

Why such a result? It's hard to justify anything of this nature post-Calley (pardoned after 514civilian deaths).

Anonymous said...

Posted by anon. 08:42:00 PM EDT

"It's funny how court cases focus on trivialities instead of justice."
cont.....

Give me a break! To propose that the Law, breaking the Law, in the house of the Law, is somehow trivial is rediculous!

These actions by the TC throws the UCMJ in a very bad light!

How can anyone trivialize this on one hand and then demand justice on the other? Hypocricy at its best!

Anonymous said...

Kingsfield,
The Goverment's expert did furnish a written report prior to trial which was inconclusive. He didn't agree with either side at that point, but was "leaning" towards the government theory.

After hearing the Defense's forensic pathologist's testimony about the bullet's trajectory and the defense's blood spatter expert, he reviewed some of the physical evidence mid-trial. That's when he told the TC that he agreed with the defense sequencing of the shots, and conducted an "experiment" for the prosecution team demonstrating it.

The next day, after hearing the Accused's direct, he made it clear that the forensic evidence corroborated the Defense. TC then "released" him to go back to NY.

Check out the other Behenna thread for an update.

Anonymous said...

This is Unk/Anon again. I've understood the things Deuce, Trey, "No Man", amd Dew Process have said, and I understand that these are just comments, and I appreciate the dialog. However, it seems that some of the others may be privy to TC info and/or possibly DC info. Umm, curious. It also seems that one of more of the other "Anonymous's" seem to have an agenda and have "facts" that are not in the news. What may seem to be "trivailities" to some, may be actually be "fact", particularly if you are the accused. If any of you have heard anything regarding the review for the SSG could you post it? Also, have you heard anyting regarding the mistrial hearing for the 1Lt?

Anonymous said...

The hearing for the LT is on Friday, March 20th.

As to the status of the SSG's case, his lawyers will know that information, or at least be able to find it out.

Anonymous said...

It was not my intention to stop the conversation and opinions. It has truly been informative. I understand that it is opinion on the case, and fact only on the military law. Anonymous, I know what the SSG's attorneys say, I identified myself as family in my first comment. I have been asking
quesion's to gain further insight to the order and methods of the military justice system. Unk/Anon

Dew_Process said...

UNK / ANON
I don't think you stopped the conversation - it's probably just that nothing's going to happen until the hearing on the 20th. There haven't been any new "news" reports that I've seen either.

With respect to your SSG, as lawyers it's a very difficult thing to discuss because we do not know what motivated him and his lawyers to seek a plea bargain versus the risks of trial. It's a complex decision making process and each case is different. I understand your concerns about a family member, but his lawyers will be in the best position to answer your specific questions.

Anonymous said...

I have many opinions on this case. I am not related to any of the participants. I do not have a military background. I am just a citizen of the United States who is sick with what is happening to a young man. I think the US government set 1LT Behenna up. I think that after the dead guy (who it was assumed was responsible for the death of several of 5th Platoon's men, irrelevent, but that is what the 1st LT thought) was to be let go, and brought back to his village, it was irresponsible for the US Army to have the same men (members of the 5th Platoon) return the alleged AL Queda member safely. I think the Army intended for him to be killed or they wouldn't have sent these two men to "return" him. I think the Army decided that at least the 'bad guy' would be gotten rid of and they would sacrifice a few of their own, if they had to (if those two, the 1st LT and the SSG took the "bait", for lack of a better term.) I have known many soldiers who have expressed the idea that as a soldier, they are all expendible. I think those in command decided that the 1st LT and the SSG were expendible.

I also think that, given the frame of mind the 25 year old 1st LT with no experience with war and it's attrocities, he was not only taken advantage of by his commanders, but also by the SSG,36 or 37 years old, a seasoned veteran of war, on his third tour of duty in Iraq. I certainly wasn't there, but I can only imagine that he and the 1st LT were angry that the terrorist was being set free after they were sure that he was responsible for their comrades deaths (right or not, isn't that most likely what they thought?) I would imagine what the talk between the enlisted staff sergeant and the officer was all about: killing the guy, about how unfair the situation was, "we can't let this guy get away after what he did to their buddies." Again, I wasn't there and maybe I've seen to many movies. I can only imagine the anger, the rage they must have felt. I think that the SSG was more responsible for the terrorist's death then he takes credit for. I'm imagining that he might have 'egged on' the 1st LT, knowing that if they did get caught, he could say that he was following the officer's orders. I think that he was JUST as responsible for the 'bad man's' death. I think he was offered a deal by the prosecutors and he took it. Twenty-five years to life for being found guilty of the original charges, or 17 months to put the onus on the other guy.. the one who "was in charge".

If the young LT intended on killing Mansur from the get go, then WHY WOULD HE BRING AN EYEWITNESS, the translator.

I think that the 1st LT was wrong in trying to interrogate the "bad guy", but I think the ARMY was more wrong in sending that particular individual to bring the "bad guy" back to his village. As I stated in the beginning of my diatribe, I think the commanders of 1st LT knew that Mansur would NOT make it back to his village alive and I think that they would sacrifice a young man if necessary.

My last thought: How irresponsible of the prosecutors to not disclose evidence that would help the 1st LT. Are the prosecutors hoping to make a name for themselves by making an example of 1st LT Behenna? Didn't I read that a bunch of Marines, who opened fired in a a village, killing a bunch of CIVILIANS, were not convicted of anything? At least the dead guy in the 1st LT's case was a known (alleged?) terrorist!

The whole thing reminds me of the movie with Jack Nicklaus and Tom Cruise, A Few Good Men. The guys at the top knew what was going on along and they knew that they would sacrifice one of their guys. In this case it is the 1st LT and the SSG. SAD!

Obviously, I am not an attorney and my thoughts may be naive, but they are that, my thoughts, my opionions. I don't know how or why this particular case caught my attention, but it has, and I have been following it off and on since before Christmas. I'm sure that I don't have all of the information, as all I know, I have gotten from the media and I have noticed a few discrepencies in 'the facts'.

I'm the average citizen and I just had to say something.

PS. I just read that the MILITARY Judge (don't get me started there... Afterall, if my original theory of the 1st LT being set up by his commanders is true, then how fair would it be for the 1st LT to go before one of "them"?) Anyway, the Military Judge decided there was no mistrial. Where does the 1st LT go from here? Is it over for him? Does he spend the next 25 years in prison?

Anonymous said...

Hello friends. I was hoping there would be some discussion on the blog about the mistrial hearing, and the rulings. Did it go somewhat as you expected? Oh, and I AM NOT the last anonymous that posted the very opinionated dialog. It's me, Unk/Anon

Anonymous said...

The judge stated and felt that the witness held back would not have made a difference. LT Behenna started his sentence Friday afternoon. The family was able to spend time with him for about an hour. The judge will suggest a 18 year sentence to the General. The family will appeal!!!

Anonymous said...

This case is an outrage. The prosecution team should be brought up on charges of misconduct. The LT may have ended the life of a terrorist but these prosecutors have committed a crime against one of their own. By knowingly withholding evidence from the defense that is "favorable" and backs up the LT's story, they have "ended" the LTs life with 25 years of incarceration. The prosecution had the benefit of a week-long trial in a secure courtroom to make their decisions and the LT had a split second in a war zone to make his. I would stand behind a man of honor like this LT anytime. His parents, both public servants, have raised an American Hero!