Monday, March 09, 2009

Does anyone have a Behenna update?

Can anyone update us about the Behenna case? Did the military judge rule on the defense's mistrial motion today?


Anonymous said...

The MJ's deadline for responsive pleadings is 17 MAR 09. In addition to the Brady issue, there's the RCM 701(a)(6), issue as to the "timing" of the belated [post-verdict] disclosure. There is also the "problem" of after the Government's expert departed Fort Campbell, DC specifically (again) asked the TC, something to the effect, "if you're not calling Dr. X, is there any Brady material?" The response was "no" which is of course the other problem here, was that an affirmative misrepresentation?

Ugly, ugly, ugly!!

Phil Cave said...

This should go with the comments to the bit about the Supremes.

Anonymous said...

As noted, the MJ set COB 17 MAR 09, for both sides to file supplemental Memoranda on the mistrial issue. He as also asked them to address the issue of if the matter does not rise to the level of a mistrial, does it nevertheless justify converting the motion to one for a new trial?

The distinction may be more than academic in the context of double jeopardy.

The MJ has scheduled an Art. 39(a), session for Friday, 20 MAR 09, for further arguments.

Dew_Process said...

If there is a Constitutional, due process "duty" and regulatory duty [AR 27-26] to disclose Brady material, then why isn't this a Dereliction of Duty issue? I mean, is the MJ going to have to advise Trial Counsel of her Article 31 rights?

That could be an interesting Art. 39(a) session!

Anonymous said...

Just an opinion from NAT(not an attorney), but someone needs to advise the TC of her rights. However, it has been clear to the SSG's family (I can't speak for the 1LT's family)from the beginning of this fiasco that either she has a personal agenda, or someone else is driving her train. This mess should have been cleared up months ago, and furthermore the alleged crime should never have happened. Someone has a lot to answer for and a lot of explaining to do. Just who is your best guess?

Quads said...

Does anyone have copies of the motions filed? It should be a public disclosure as well - did the prosecutor instruct the government expert to not prepare reports?

Can copies of the motions be sent to this blog for posting???

Anonymous said...

The motion was orally made. What's due tomorrow by COB are supplemental Memoranda of Law. I suspect that at least some will "go public" shortly.

The Trial Counsel did NOT instruct the expert to not make a supplemental report. He did make a preliminary report, but after hearing the 2 defense experts, re-examined some of the physical evidence and then after hearing the Accused's description of where the parties were, etc., told the prosecution team that the defense position was the only one consistent with the "facts." That's when he got sent home.

Anonymous said...

The MJ "found" that the withheld material from the Defense was "favorable" and should have been disclosed, but denied both the mistrial and new trial motions earlier today, ruling that they "would not have affected the outcome" of the trial.

Behenna was taken into custody.

But, the MJ probably committed reversible error because Brady applies to both evidence pertaining to guilt or innocence OR relevant to punishment.

The MJ took the unusual step of "recommending" clemency to the Convening Authority based in part on the withheld evidence.

Recall that this was charged and the gov't argued that this was a premeditated "execution-style" murder, but that the members acquitted him of premeditated murder and convicted him of unpremeditated murder. The MJ gave no rationale for his conclusion that the withheld Brady material would not have affected the members verdict OR sentence.

Stay tuned, as they say.

Anonymous said...

PS - The MJ rejected the governments "waiver" argument.