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Saturday, March 21, 2009
Military judge denies mistrial in Behenna but recommends 7 year cut in confinement
Here's a link to a news report about yesterday's ruling in 1LT Behenna's court-martial in which the military judge denied a mistrial motion based on an alleged Brady violation but recommended to the convening authority that he reduce the adjudged confinement by seven years.
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161 comments:
Our country cries for Kahlid Shiek Mohammed because he had water poured over his head.
Calley is pardoned after killing 415.
We send a young man to prison because he kills an insurgent who was involved in the roadside bombing that killed two American soldiers in his unit.
Yep, welcome to Obama's America.
Damn those annoying laws...I wish it could be like the old days when we could just kill'em all and let god sort them out!
Jed:
What am I missing, none of those cases were brought in "Obama's America." The Behenna prosecution was started long ago during the GWB administration and long before the election.
Calley, well I am not even sure what you are trying to say there, as he was convicted and then pardoned before I was born (I think). Are you for/against the conviction or for/against the pardon?
As for KSM, I don't know that the Obama administration has said anything about what they will do with KSM, but a court-martial is one of the options being batted around. So, again I am not sure what the point is on the KSM reference? And, would we be in a different situation about the President's position on admissibility of, as you call it, "water [being] poured over his head" had Mr. Obama not been elected? I believe guy that was the other choice has more personal knowledge on the torture issue than any of us, so I'll go with what Mr. McCain said.
While not as haiku as Jed (clever reference "Wolverine"), I do see the point and irony (I think).
Regarding the "annoying laws" as "Captain" Sheldon prefaces it - is overly simplistic - a prosecutor is to seek first and foremost "justice" not just a blind allegiance to laws (otherwise we ticket folks for driving 56 in a 55). I'm pretty sure the Supreme Court talks about the nature of this in that pesky case called Burger.
I believe (guesstimate) that is what the comparison to Calley and KSM is about - a simple query of what is justice and did CPT West Point achieve it in her closing argument when she argued something she knew was not accurate?
What is seriously troublesome on its face is how the West Pointer prosecutor went about her closing argument knowing in good faith it was not at all candid. She (and her office) sat on evidence, and any new trial would have to be based upon her misconduct (now that's just speculating that she was the one that chose not to disclose the evidence - however she would share that responsibility).
Readers - ask yourself this - would the panel give that same sentence knowing that the Government's own expert saying something to the contrary? If not a problem, then why not disclose it to the defense - just as those "pesky laws" say you should?
Can't have that result at the post of the Screamin' Eagles (pity the SJA who would have to explain that SNAFU to the Convening Authority) or how do you explain the time/expense in this case by putting inexperience to prosecute? Maybe one day they'll give some of these kid attorneys some adult supervision. Not only is this a considerable ethical concern (for the Army JAG Corps and that young ring knocker's bar association), but one that she probably has already tried to morally justify when she looks in the mirror.
It just doesn't appear that this was a fair trial knowing that the Government's expert would have testified contrary to what the Government argued in closing argument. I haven't heard of anything to the contrary that the prosecution was in the right - the court still could have denied the new trial by finding the misconduct "harmless." But that doesn't sit well with me as the man on the street (formerly known as "Joe Sixpack" or "Joe the Plumber).
I'm not saying the LT should not be punished for something - but I think the prosecutor's did not try this case honorably in a way that the public should feel that its soldiers, sailors, and airmen are getting equal justice.
"No Man" (by the way - why is that your nom de guerre?) - I don't recall McCain ever saying that he thought that waterboarding equated to torture? Another note: I think it was '74 when Calley was pardoned. Along the lines of Calley - how many convictions after Haditha and those other cases of note? None - why the difference? Maybe those prosecutors turned over all the evidence?
You do know that we waterboard our Naval Pilots during their training don't you?
Heck I think there are a number of folks who would have handled waterboarding easier than what a number of folks went through in football practices (but I'm a bit old school and I know things have gotten "kindler and gentler"), green-hand FFA (e.g. the "cattle prods"), fraternity (ask a Kappa about their brands or any "hell week" - but that's probably all been reduced to something else nowadays), wrestling practices (again - I'm from a different era when "water breaks" were for the weak), etc.
Mr. Hodges, while I disagree with much of what you wrote, let's just set the factual record straight. As widely reported, including in the October 25, 2007 Des Moines Register, following a campaign stop at Dordt College, Senator John McCain said: "Anyone who knows what waterboarding is could not be unsure. It is a horrible torture technique used by Pol Pot and being used on Buddhist monks as we speak. People who have worn the uniform and had the experience know that this is a terrible and odious practice and should never be condoned in the U.S. We are a better nation than that."
And here's a link to a news report of Senator McCain calling waterboarding a "very exquisite torture" that should be outlawed.
http://abcnews.go.com/WNT/Investigation/story?id=1356870
To paraphrase Adam Sandler, you don't mess with the No Man.
Further fact checking -- Nixon didn't pardon Calley. Nor did any other President.
Calley was convicted of offenses including three specs of premeditated murder and received a sentence that included confinement for life. The CA reduced the confinement to 20 years. Now look at Professor's Michal Belknap's outstanding work, The Vietnam War on Trial: The My Lai Massacre and the Court-Martial of Lieutenant Calley (2002). On page 198, Professor Belknap describes President Nixon's 1 April 1971 order that while Calley appealed his court-martial conviction, he was to be subject to arrest in quarters rather than confinement. But that's hardly a pardon.
In February 1973, in any opinion by Judge Wayne Alley, ACMR affirmed the findings and sentence and denied a petition for new trial. United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973). CMA affirmed later that year. United States v. Calley, 22 C.M.A. 534, 48 C.M.R. 19 (C.M.A. 1973). On 4 February 1974, CMA denied reconsideration. On 15 April 1974, Secretary of the Army Callaway remitted confinement in excess of 10 years. Belknap at 245. Professor Belknap's detailed review of the White House's involvement in the case suggests that Secretary Callaway acted independently and not at the behest of President Nixon or his White House staff. Following Secretary Callaway's action, on 3 May 1974, President Nixon executed a document stating: "I have reviewed the record of the case of United States v. Calley and have decided that no further action by me in this matter is necessary or appropriate." Belknap at 246. A U.S. district court judge then ordered Calley released on bail pending his appeal. See generally id. at 246-47. The Fifth Circuit reversed that order. Calley v. Callaway, 496 F.2d 701 (5th Cir. 1974). On 26 June 1974, Lieutenant Calley was transferred to the USDB. Belknap at 248. He was still there, obviously unpardoned, when President Nixon resigned from office on 8 August 1974. So those who contend that President Nixon pardoned Calley are mistaken.
(Calley was paroled on 8 November 1974--after President Nixon had left office. See Belknap at 251. Also following President Nixon's resignation, a federal district court judge granted habeas relief. The Fifth Circuit reversed and reinstated the sentence as modified. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) (en banc). The Supremes then denied Calley's cert petition. Calley v. Hoffman, 425 U.S. 911 (1976).)
I'm not going to take the time to fact check any of the other assertions in this thread, but suffice it to say that you should take them all with a grain of salt and verify anything before accepting it as true.
COL Sullivan - It is striking though on the sentence Calley received (life) and the Convening Authorities reduction of it - "Calley was convicted of offenses including three specs of premeditated murder and received a sentence that included confinement for life. The CA reduced the confinement to 20 years."
Should we hope to see the Convening Authority act as such with this LT and the Non-Com that was with him?
Calley was a part of a slaughter that included women and babies - these guys were involved with known insurgents.
While Calley's arrest "in quarters" may not equate to a pardon, it doesn't exactly equate to the DB either.
You are correct that Calley was convicted on 3 of 4 specifications - but that was for 22 murders, including the murder of a monk and an assault with intent to kill a baby.
I didn't "No Man" was so sensitive and defensive about Obama.
Speculation is a killer. Only the jury was at the trial to process the evidence. That jury "of peers" must have had enough to conclude the LT did something in violation of law and order. What evidence exists that the victim was personally involved in the roadside bombing? I speculate none or the jury would've certainly factored it in. What we do know, from a factual basis, as reported on Phillip's law page, who attended the hearings on several days is:
o The defense had an expert who tried to establish the "self defense" defense; obviously the jury didn't buy it
o The victim was unarmed and defenseless in the control of up to three people
25 years interpreted is that clear and convincing evidence was present that the LT was not defending himself
If our soldiers can do what the LT did then why have rules? Let's just drop another A-Bomb on any group we "think" did us harm and call it a day.
IMHO - Justice was served; probably should have been life; As a veteran, I'm disgraced by his actions
BTW: Isn't it interesting that the Haditha perpetrator (U.S. Soldier) and this perpetrator is from the same city in OK, and both represented by Mr. Z....hmmmm
Anon 1132:
Not sensitive on the Obama issue, relatively indifferent to criticisms of his policies. I am just senstivie to the factual inaccuracy issue, which CAAFlog so ably picked up and carried across the finish line. For the record, however, I am a big fan of John McCain's stance on torture--but I don't think that will come as a surprise to a lot of people.
Anony who was at the hearing:
Correct me if this is not speculation - prosecution had a witness who had same theory as defense. Prosecution did not share those expert findings. Prosecution then argued contrary to what their own expert informed them of and basically told the panel members why they couldn't believe that version.
If the panel didn't "buy it" from the defense expert witness, then shouldn't they heard it from the government witness who made the same findings?
Secondly, shouldn't the prosecutor not have argued something contrary to the evidence she had and failed to disclose?
Can someone who actually KNOWS what happened here please inform us why the judge did not grant the defense's motion for a new trial? Also, someone please post the names of the trial lawyers involved...I'd also like to know the names of the chief of justice and SJA...thanks.
Hamilton,
You are correct...they should've heard it. However, does expert witness trump what the jury ascertained from 99% of the other evidence. We all know there were witnesses and other accounts and most likely photos that can't be disputed.
I side with the MJ who obviously concluded it did not represent enough to change the outcome and still issued an 18 year sentence. Bottom line here is a soldier on a personal (vigilante) mission irrespective of law and rules of engagement. In other words he had zero authority to be where he was with that defenseless individual.
Our military has procedures to handle "suspected" enemies. This is not it, under any circumstances, and constitutes murder however you want to slice it, and should receive appropriate punishment. Our respect as a nation and military force is only enjoyed when we take the higher ground and comply with our own promises to other countries to not abuse our power. Should our country ever experience a foreign enemy/super power on American soil (which is not impossible), I only trust that they at the least would respect human life as being valuable and not be rogue in the exercise of their duty. Again, this LT's actions are a disgrace and inexcusable to me as a veteran.
I am in a position "to know."
The MJ found that the testimony was "favorable" as defined by Brady, and thus, should have been disclosed, especially since there were specific Discovery Demands filed long before trial including one that expressly asked for disclosure of any "experts" who changed their opinion.
And, this was not just any "expert" - it was Dr. Herbert MacDonell, the "father" of blood-spatter interpretation and modern crime scene reconstruction. He trained the Defense's "expert" Tom Bevel, and those facts added to the Defense, certainly COULD HAVE swayed some of the members.
There were two pending motions - one for a mistrial, the second for a new trial based upon "newly discovered evidence." Both were denied.
The basis for the denial was, in the MJ's opinion, there was no probability of a differing verdict. But, that's only half of the equation, it may have affected the sentence and it's just outright speculation on the MJ's part that it wouldn't have any more than the Defense's claims that it would have. That is especially troubling when you factor in the MJ's on the record, recommendation for clemency.
The point that was argued by the Defense was that THEY were denied the opportunity to use not only the undisclosed evidence - which included a demonstration conducted in private for the Trial Counsel & prosecution "team" by Dr. MacDonell BEFORE he heard the Accused's testimony - that Demonstration turned out to be exactly the way the Accused said that the shooting occured to include the shot sequencing; but also the "stature and expertise" of Dr. MacDonell.
The "factual" issue was that in spite of Dr. MacDonell's ultimate conclusion that the deceased was "standing" with his right arm reaching out towards the Accused, and was shot first in the chest and second in the head, the TC argued that the deceased was sitting on a rock, and was shot in the head, execution-style first and then second, shot in the chest.
Dr. MacDonell's testimony thus also corroborated the Defense's forensic pathologist on the shot sequencing and bullets' trajectories.
And ANON 2334, "Mr. Z" the Civilian Defense Counsel is really COL Z, USMCR (ret)- a former Military Judge himself.
As for the lead Trial Counsel, she is indeed a West Point grad, and has been a JAG for less than 2 years. The irony is that this is not her first legal "claim to fame."
http://www.law.com/jsp/article.jsp?id=1186996021009
If the facts as revealed by major news reports are accurate wouldn't an investigation into the TC's alleged misconduct be, at a minimum, required?
ANON 1835: Army Regulation, 27-26, Rules of Professional Conduct for Lawyers (1992), contains Rule 3.8, Special Responsibilities of a Trial Counsel. Subsection (d) of that rule requires Trial Counsel: "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...."
That was referenced to the Military Judge, coupled with the possibility of a Dereliction of Duty issue under Article 92.
Don't hold your breath - the Army's not going to do anything to someone they've paid to go to West Point and then to Wake Forrest Law School.......
ANON 7:29 -- I wonder if disclosure has been made to the TC's state bar.
Dew Process:
You are correct: Mr. Z is retired military and a former MJ. It would certainly be naive to think no one else on this blog is "in the know"; and some perhaps are more in the know than others.
At absolute most, the experts can approximate sequencing. BUT, does that make all other evidence mutually exclusive? I surmise the answer is no, but only one facet from which a number of possibilities can be derived - reaching out, arms raised, arms behind, etc. In a couple of those sequencing becomes irrelevant; intent supercedes.
You say that "in the MJ's opinion, there was no probability of a differing verdict". That's probably most accurate given the gravity of the sentence issued by the jury.
Are you certain that McDonnell and/or Bevel concluded with an "absolute certainty" that the victim was "standing?" Or,,,were there other possibilities besides a fully standing position?
I posit that it was perhaps the 1% of the total evidence and the other evidence more accurately reflected the events of this tragedy as concluded by the jury and the judge.
ANON 2120: The problem here regarding the shot sequencing, was that the government had no forensic evidence that supported their theory - Dr. MacDonell was to be their rebuttal to the Defense on that and then he "flipped" on the TC.
Here's MacDonell's testimony from the post-verdict hearing:
___________________________
Q. Now, the information that's contained in your email, which we just got this morning, can you tell the judge whether or not you relayed this information to the prosecutors?
A. Well, not before the email--well, yes before the email. I said afterwards that I was leaving. As a matter of fact, at 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 on the shoulder and said that's exactly what I told you yesterday. He was in there. And as I was leaving I told the prosecuting group, I said, "That was just exactly what I told you." And I felt a little uncomfortable that I felt I was leaving with information that would be exculpatory, but I didn't know what to do about it, so I just talked with a judge here and an attorney and was advised, and sent the email.
_____________________________
The 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. I was thinking of something that I have thought of many times, it is credited to Sherlock Holmes, which said that once you have removed all of the things that are impossible whatever remains, regardless of how improbable, must be the truth. And I thought that same thing several times because it has proven out in previous cases, this seems almost impossible and yet it is established that's what happened, but I just thought that was something the jury might want to consider.
_______________________
Dr. Berg was the prosecution's forensic pathologist and he didn't testify on rebuttal either.
There was one "other possibility" - the deceased was lying on the ground and the shooter standing over him, that would have been consistent with the bullets' trajectories - and the sequencing would have been irrelevant. But, that theory was contradicted by the locations of the blood spatter and so had to be ruled out.
Dr. MacDonell's initial report - which was served on the Defense - also contradicted the conclusions of the CID's experts:
______________________
4) I can not agree that there is sufficient definition of directionality to the bloodstains Ms. Liveri used to establish her second area of origin. The bloodstains she used were taken from either an arterial gushing or a cast-off pattern. From their size it could well be either.
5) ... I can not accept her second origin as being accurate. Again, these bloodstains are in an arc-like pattern and are very large. They did not spatter as a result of spatter from an impact but are much more consistent with arterial gushing or being cast off from a swinging object. No mention has been made of a bloody instrument so I feel this pattern most likely resulted from arterial gushing from the victim’s head wound.
_______________
So, there's the Defense's dilemma - they [and the prosecution] know that Dr. MacDonell does not agree with the government "theory" and their crime scene expert and at the time, Dr. MacDonell did not agree with Bevel's conclusions because he had not yet examined the bullet that exited the deceased. It was only after he examined that that he concluded that the deceased had to have been standing reaching for the handgun. And then, his shot sequencing "fit" - only the defense of course wasn't advised of this.
The physical evidence just didn't match up with the government's theory that the deceased was sitting on a rock and shot in the head, execution style. Had that happened, the deceased would have gone backwards off the rock and the body would have been in a different position than where it ended.
Finally, we can agree to disagree, but 25 years is not a "severe" sentence for an intentional, but unpremeditated murder in my opinion. Mind you it's a LONG time, but in the context of intentional murder sentences, it's not.
Mike Nifong -- your thoughts?
Sat anon 2334 hours. I'm confused. What is the significance of the two accuseds being from Edmond and having Jack Zimmerman as their defense attorney?
Dew Process:
Appreciate the discussion (anon 2120)
A question to ponder as being "in the know": Was self defense the original position of the defense?
It sufficeth to say, even reading your most recent statement, that there are a lot of holes to MacDonnell's and Bevel's "forensic" theories and, by the way, neither individual actually visited the scene to arrive a their conclusions. Without going into the details of splatter, or lack thereof, to support/discount the standing position, neither expert concludes with "absolute certainty" and neither concludes that their "opinion" mutually excludes all the other evidence. The truth lies in preceding and post actions to the tragedy.
As you've posted, the experts are not in 100% agreement. (CID, Bevel, McDonnell) Thus, if MacDonnell contradicted Bevel on other possibilities besides fully standing does that lend credibility or certainty to either? I surmise not. At the end of the day what you're left with is 2 experts without eyes on, relegated to third hand visuals of the scene, arriving at a perfect, indisputable, forensic conclusion...not plausible. In the same fashion I would hope a jury would discount these experts and not convict a person, I would hope they would also discount it when considering to convict. It just seems the MJ and jury thought the other evidence still carried indisputable weight on their decisions.
I think you say it best and appreciate your conclusion that we can agree to disagree. For the usual murder conviction, 25 years may not be long, but 25 years for a SM in the midst of a war situation is rather long considering the fog of war and the innumberable options the jury could've chosen to in part justify the murder and issue a much reduced sentence.
http://www.newsmax.com/newsfront/behenna_trial/2009/03/21/194599.html
Dew Process...
I appreciate your thoughts but, I believe much of what you stated about the withheld evidence, experts, and supposed facts presented by the TC creates a tremendous amount of doubt in regards to what really happened in that split second during as you stated "the fog of war!"
Last I heard military justice requires the benefit of this doubt go to the accused! The MJ made a very special point of this at the beginning of the trial. Innocent until proven guilty beyond all reasonable doubt!
To state or believe that the withheld evidence would have not created more reasonable doubt is to be presumptuous at best!
If this withheld testimony, which appears to be intentional by the TC or superiors, carries no weight in regards to creating reasonable doubt or cold hard evidence that corroborates the defense's story, then why in the world did TC not turn it over when requested? In fact, Poirier did the complete opposite when she said they had nothing from McDonnell that would favor the defense despite being given a demonstration of his theory days before that exactly matched the accused story but totally contradicted TC's unsubstantiated theory! Then they argued completely to the contrary in her closing arguments!
Dew, are you aware the TC opened by saying they would prove beyond any doubt that Mansour (a suspected terrorist that killed US soldiers who was listed as such on an intelligence report) was shot sitting down execution style in a premeditated way? If the withheld information doesn't affect anything then TURN IT OVER and allow the one who is presumed innocent to defend himself to the best of his ability as the law clearly demands and in the name of justice! One can only conclude that TC knew exactly the outcome if this information was turned over and none of it good for their case or their personal future! They have a problem with a soldier breaking a rule of interrogation of a published terrorist in an attempt to save more of his soldiers lives "in the fog of war", yet they have no problem breaking a law in the house of law to satisfy an agenda and subsequently affecting the credibility of the UCMJ in general!
They also claimed they had eye witnesses to the shooting! All not true nor did they put forward any cold hard evidence, witness, or expert to prove their theory including eye witnesses who they claimed saw the shooting. Read the transcripts of Harry and Warner and there are more holes in TC's theory and claims than swiss cheese. BTW, according to Warner's testimony, much of what he pleaded to was constructed by Poirier herself and he had never read it. His story is physically and absolutely impossible unless operating under laws of physics that are yet to be discovered! BTW, a Glock doesn't have an external hammer! Was this story written by TC as well as part of the plea? Harry never saw the shooting. He just remembers him sitting at some point. Did I mention it was dark?
More doubt and this time created by the TC.
Let's not forget about the chain of command and their decisions along with SGT Sanchez with his "get out of jail free card" that was promised to all who would do the governments bidding!
This thing stinks to high heaven and let's hope somebody with a feel for true justice finally frees and exonerates this young man for doing our bidding that we don't have the stomach to do in "the fog of war" and instill some faith back into the military justice system!
Anon12:01,
With whom does reasonable "doubt" rest? Is there any cold, hard, fast rubric or is it the judgment of a reasonable, prudent person(s) ---interpreted--- a jury who concluded guilt.
Presumptuous at best? --unlikely; the MJ obviously agreed.
The military justice system is intact and it is that faith in it that guarantees our military access to foreign soil to carry the torch of freedom. Without it, we become rogue, unlawful, and unconscionable in our efforts and lose importance of human life. That faith and importance of human life is the genesis, the bedrock and, the touchstone of a democratic justice system.
Didn't know the military issued "Glocks" --hmmmmm
What are the rules of interrogation? the military rules that is? --hmmmm --hint: ROE; was this an infantry soldier or intelligence guy that committed the offense?
"Doing our Bidding????? Sounds like contract killers ------ Insulted and appalled by such a reference. Our fighting men and women do not do biddings. They are professionals and must always uphold the professional way.
Your passion is a bit misplaced and is probably a better fit in defense of the thousands of fighting men and women who chose to "do the right thing" - The hard right over the easy wrong!! Looks like those with a feel for "true" justice did speak up.
There is much you left out of that transcript you read.
Anon Monday, 0229,
You said:
"The military justice system is intact and it is that faith in it that guarantees our military access to foreign soil to carry the torch of freedom. Without it, we become rogue, unlawful, and unconscionable in our efforts and lose importance of human life. "
I don't necessarily disagree with you, but your apparently straight faced use of such platitudes regarding an actual case is mildly unsettling.
Have you ever deployed to a combat zone, and been outside the wire for any significant period of time? Been up close and personal with the dead and mutiliated?
I just can't believe anyone who has would use the type of language or tone evident in your post.
Maybe it's just me.
Animal Mother,
Appreciate your opinion. Short answer: Yes; and know personally the terrible post-effects of war on daily living. If I may indulge, I encourage you to find the transcripts and read them. Guess I subscribe to a Higher Power that does not allow my conscience to abuse the fragile law so entrusted to the military profession.
Unsettling? Respectfully hope it causes deeper thought about the global/strategic issue at hand and our higher moral obligation to uphold and abide by the laws that make democracy great.
Platitude?-----As opposed to callous statements devaluing human life?
In short, combat zone/outside the wire/up close and personal with the dead and mutiliated does grant authority or license to administer self-justice.
It is a "precious" charge that our fighting men and women have.
Anon...I'm curious about your interpretation of the "facts" as they were presented by the forensic specialists. Were you in the courtroom during the trial or have access to transcripts of testimony? Or is your insight based strictly on what has been reported in the media? If it is not first-hand, then please respond with sources as I would like to read all that I can about this case.
It is my take, based on the information that I have acquired, that the prosecution's witness agreed with the defense's witnesses and was consistent with the LT's account of the incident. He stated that it was the only logical explanation based on the physical evidence.
Sorry to be so fragmented in my thoughts but this case has me second guessing everything.
Please comment with your thoughts on: If you do something wrong in the field, that might cause
disciplinary action - do you lose your constitutional rights to a fair trial? or
to self-defense?
Here is the story at www.newsmax.com
http://www.newsmax.com/newsfront/behe
nna_trial/2009/03/21/194599.html
(direct link too long so copy and paste each line to see link)
The Trial Counsel is CPT Meghan Poirier, CPT Jason Elbert and CPT Erwin Roberts.
Thanks, I have read that article. But your comments have led me to believe you have other avenues to information about this case that have given you insights not available to the lay person interested in this case. Were you at the trial or have connection with the case. Some of what you have commented on is in contradiction to what Dew Process has stated. Do you know DP's connection with this case?
All, (from Anon230645pm)
I left out an important word ("not") in my summation: "In short, combat zone/outside the wire/up close and personal with the dead and mutiliated does 'NOT' grant authority or license to administer self-justice."
btw: the newsmax story is riddled with errors --MacDonnell even contradicts himself according to this article by changing his mind only after listening to Behenna's testimony ----and he's the "expert"? Should not his conclusions stand on their own? Again, don't use this for your source of knowledge -- you definitely won't get an accurate understanding. Phillip's blog is probably the most accurate and unbiased account on the web as he attended the trial.
I conclude a second time that the military justice system is intact and, here, reflects the spirit of the law of all volunteers who took the oath to abide by it as uniformed men and women.
Thank you for your response but correct me if I am wrong. It is my understanding that the Dr. demonstrated what he thought happened before he heard from the LT. When he told (and demonstrated) the prosecutors his opinion, they dismissed him as a witness because it did not fit their theory. He then stayed at the trial to hear the LT for himself. After the LT's testimony, he become even more confident in his opinion and informed the prosecution that he thought the LT was telling the truth about self-defense and not "self-justice".
I have read the blog from Mr. Phillips and understand that he made several "appearances" at the trial. He was not in attendance for all of the testimony. Also, he has a vested interest in this case with his clients connection with his behavior and testimony.
You have referred to reading the transcript, is is available to the public or do you have special connection to trial participants? I would love to hear the offical account of what was said and done rather than have to rely on blogging accounts.
The newsmax article quotes the LT's counsel, Mr. Zimmermann so I would tend to think that the account in that article is mostly accurate and not "riddled" with mistakes.
I have never faced the circumstances that the LT. faced on that fateful day so I can only guess what flashed through his mind in that split second. I can only be grateful that he is still available to tell his story, given the info. I have been able to gather on Ali Mansur.
Anon1129,
Sorry, but it will require personal research to find it---so sorry. Sure you can understand why.
Newsmax is riddled; I'll leave it at that
Again, Phillip's is your best source in the absence. Take a hard look at it. It is on point.
Military justice system did its job. Time will show it.
I've read most news reports from the beginning of this case, and all of the blogs that I could tolerate. I agree that Phillips is probably most accurate. I must tell you that the "righteous indignation" that some of you have is unreal. Whether you have been military, war zone or not, (civilian police, whatever) if you were not there, you do not know what really happened. Only you who are or have been JAG would know whether or not the military courts are corrupt. Ummm, do you suppose the command would "use" two "good ole boys" from Oklahoma (the SSG is from OK also) to do their "unlawful" bidding?
Sorry, but I tend to believe that forensic evidence backs up the only eyewitness to the events, the LTs. Just because the LT chose to interrogate the detainee, does not mean the he intended to kill him. What was the LT supposed to do when the detainee reached for the gun? Ask him nicely, to return to his seat on the rocks?
From what I have seen and heard, I agree with you that the truth will be revealed in time.
By the way, I just located a video interview with the LT's mother (KOCO.com). She states that all of the forensics supports the LT's account of his actions. Funny, she is a Federal Prosecutor that is dumbfounded that another Govt. Agent would argue against the physical evidence that their own witnesses provided.
Doesn't sound like the LT is a "good ole boy". Have you read his backround as well as his family's?
Whether the command "set this up" is not the issue. The issue is that one of our finest acted to protect himself in a war zone and now is being held to a standard as if he was standing on Main St. when this all happened. Add to this, a prosecution team that was not interested in seeking the truth and reaching a just decision, but just trying to build a resume. In doing so, threw ethics aside.
anon 1149,
I went back and reread the newsmax article do to your reiteration that it is "riddled" with incorrect information. I still failed to notice them. Can you be more specific as to was is contradictory to what was testified to during the trial? The more that I read about this case, the more I believe the LT. The actions of the prosecution team seems to lack ethical responsibility. The "tunnel vision" that they had when investigating and prosecuting this case is suspect. It seems that anything or anyone that did not fit their puzzle was dismissed without regard to reaching truth and justice.
Unfortunately, they are going home to their cozy homes and families every night and this LT has to sit in prison without the comfort of his family. All for what? If we continue to treat our soldiers this way, then we won't have trouble drawing down troop levels. The troops will all be locked up and no one will be stupid enough to volunteer to serve a country that doesn't serve them.
ANON 2232 - Dr. MacDonell changed his opinion the day before the LT testified, only AFTER seeing the bullet that he hadn't seen before. It was at that point that he gave the demonstration to the prosecution team, consistent with the forensic evidence [and for those of you who do criminal trial work, the key word here is "consistent"], that the only factual scenario, however improbable, was that the deceased was standing with his arm towards the LT.
The next day, DURING the LT's testimony when he said that [and mind you, the LT had never given a statement to anyone prior to his testifying], Dr. MacDonell leaned over to the prosecution's forensic pathologist, Dr. Berg, and said, "see, that's exactly what I told you yesterday!"
If you go to Mr. Phillips blog, you'll see this entry:
______________________________
After SSG Warner’s testimony, the government closed. They have presented a strong case, but left several doors open for the defense. One of them being that Ali Mansur’s actions at the time of the shots being fired have not clearly been defined.
_______________________________
That's because, neither "Harry" the interpretter nor SSG Warner, were looking at the deceased when he was shot.
The transcript of the Brady violation hearing is done, and I've read it, but I don't think that they're publically available as they're not yet "authenticated" by the MJ.
FYI, the LT's mother is a federal prosecutor who was part of the team that prosecuted Timothy McVeigh - his father is an FBI agent.
As someone else pointed out, Mr. Phillips has a VERY vested interest in the Behemma case, since his client SSG Warner, was originally also charged with premeditated murder.
But, here's another problem to chew on. The Trial Counsel knew [and made much of] that the crime scene had a) been "contaminated" by relatives of the deceased; and b) botched by the Iraqi police, before CID got involved.
Knowing that, that was their "attack" on the defense forensic experts and they opted to rely on 2 non-eyewitnesses as "proof." Under those circumstances, Dr. MacDonell's testimony corroborating the LT's, took on added importance.
Dew Process,
Sounds like you have this in the cross-hairs. With your obvious knowledge of the case, your analysis points out what is wrong with the way our Govt. is handling our troops.
Reminds me of a bumper sticker that I have seen recently--If you can't stand behind our troops, then please stand in front of them.
Keep fighting for this LT! He fought valiently for us!
Dew Process,
As you and I both have concluded before, we can respectfully and professionally agree to disagree. I certainly appreciate the dialogue.
However, it is obvious the MJ, and jury, concluded a totally different "factual" scenario, based on pre- and post-actions of the LT. From Phillip's blog it seems the Defense changed their position from the opening argument - hmmm
What exactly was the interpreter doing at that time?????????
----------------
Anon0208, to your response "they are going home to their cozy homes and families every night ---without the comfort of his family." As I'm certain there are relatives, perhaps kids and spouse on the victim's side, do you apply your statement equally?????
-----------
Follow the trail from Phillip's blog and I think it probably is the viewpoint of MJ and jury:
[Warner Update] Ali Mansur was order to be released from custody and was to be returned to his home by 5th Platoon
Ali Mansur was a detainee that was scheduled to be released by 1LT Behenna’s platoon on 16 May 2009. Subsequently, Ali Mansur’s burnt naked body was found in the desert.
[Warner Update] He was stripped naked in the desert and shot.
[ 2/25] [defense] --- promises made during opening arguments, which will mean that they will put evidence on that will demonstrate that 1LT Behenna was not thinking clearly at the time of the killing. They will also probably put on evidence showing that Ali Mansur may have been a suspected terrorist.
[2/26] Zimmerman was able to get SSG Seate to say that LT Behenna was changed after the death of his men in April 09. This will later help establish that LT Behenna was very emotionally effected by the loss of his men in the April IED attack.
[2/26] The defense presented two expert witnesses today. The first expert-----tried to establish that Ali Mansur was standing-------The second expert witness also attempted to establish that Ali Mansur was standing at the time he was hit with the first shot. This was important because it would show that the physical evidence contradicts the testimony of SSG Warner and Harry.
[2/26] CPT Erwin Roberts crossed examined both expert witnesses effectively. He was able to call into question their expert opinions by demonstrating that they may not have had enough crime scene date to make a correct opinion that was in direct contravention to the witnesses that testified.
[3/3]--being a “terrorist” and a “bad” man. There was certainly evidence that this is exactly what he was, but there was also evidence that at the time he was shot, he was naked, in the control of LT Behenna and pleading for his life.
[3/3] The tempation for the defense is to say that this is just an Iraqi. Who cares? How many times has an Iraqi been killed in one combat operation or another? ------In this case, the Iraqi was under the care and control of the US forces. ------Soldiers must follow the rules regardless of their personal vendettas. ------there is certainly a requirement that we not lead Iraqi citizens into the desert, strip them naked and then shoot them point blank in the forehead.
[3/22] Most of the experts, who rely on some eyewitness testimony to recreate their crime scenes, had little or not reliable evidence to work with.
Anon 0656,
From my understanding, the defense never made any pre-trial statements regarding the events and opening statements were supported with the LT's testimony and physical evidence.
In Phillips own words, he was not in attendance during the entire trial process. He had time to drop by on a few occassions. Seems to me that Dew Process had more first hand knowledge of the proceedings and fills in the skelton of a story that you post. In my limited knowledge of the case, I am under the impression that Ali Mansur was not just any Iraqi and was capable of violence.
Again, I ask--If you do something wrong in the field, that might cause disciplinary action - do you lose your constitutional rights to a fair trial? or to self-defense?
With the way our Govt. has treated the LT--I'm sure the opposite was true for Ali's family.
ANON 1856: Thanks for not injecting any ad hominem into the dialogue.
I don't think that the Defense "changed" their position, although I guess we could get into a semantical debate. What I believe you'll find is that the Defense all along intended to provide some expert testimony as to the psychological effects the death of 2 of the LT's soldiers had on him, a week or so before by the IED. So they had to give notice of that to the government.
Because Dr. MacDonell had NOT provided a final report, the Defense was not "tipping it's hand" until they absolutely had to, so they never mentioned the "self-defense" in their opening in the context of the LT's ultimate trial testimony. That's a fairly common defense approach at trial when you're not sure where and how the government is going to get to their claims factually.
The interpretter, "Harry" had turned and had his back to both the LT and the deceased when he heard the 2 shots.
The Gov't attacked the Defense experts in part, as you know, because other than the Accused, a) there were no "eyewitness," thus allegedly diminishing the Defense Expert's "theories," and b) because of the abyssmal state of the crime scene.
As you noted:
____________________________
[2/26] CPT Erwin Roberts crossed examined both expert witnesses effectively. He was able to call into question their expert opinions by demonstrating that they may not have had enough crime scene data to make a correct opinion that was in direct contravention to the witnesses that testified.
__________________________
The "problem" imho, is that Dr. MacDonell, said that from the location of the arterial bleeding from the head wound, the position where the body ended up, the 90 degree "flattening" of the bullet [which more or less disproved the downward, "seated" trajectory theory] and the bullets' trajectories through the body, that while seemingly "improbable" was the only factual scenario where all of those facts fit.
At the Brady "hearing," Dr. MacDonell used the famous Sherlock Holmes quote: "when you have eliminated the impossible, whatever remains, however improbable, must be the truth." [From, "The Sign of the Four"]
Contrary to a number of statements by Mr. Phillips [again, the devil of semantics], e.g.:
____________________________
[Warner Update] He was stripped naked in the desert and shot.
____________________________
The incident happened in a secluded railroad culvert, not in the open desert. Hence, the importance of the bullet and its' 90 degree "flattening." That had nothing to do with the crime scene, but everything to do with Dr. MacDonell's revised opinion - and something factually objective that MIGHT have moved the members, contrary to the prosecution's arguments.
But, the Defense never knew about Dr. MacDonell's bullet examination, much less his conclusion that the deceased had to be standing at the time he was shot.
If the LT is guilty, then he should be convicted if there is proof of such beyond a reasonable doubt. But, do it fair and square, and don't affirmatively mislead the defense. That's probabaly why this thread is so long - what happened just doesn't "sit right" in the context that the prosecution's duty is to seek justice, not a conviction.
The Prosecutors made a conscious and unethical (at best) decision that MacDonnell's testimony would not affect the outcome.
The MJ made the clairvoyant decision this testimony would not affect the outcome of the members original decision and thus it wasn't material.
The only other party in the courtroom who was not allowed to see or make a decision about MacDonnell's testimony and how it could affect the outcome was the Defense!
Who needs Brady? What is justice without it?
Excuse me, let me add the panel members never got to see or act on it either!
Dew Process,
Your timeline seems or is a bit off; No disputing this fact. I think it was way more than a week or so from the IED attack. I believe Phillip's blog show 25 days which is correct, so closer to a month. Granted, an IED attack and death of what could've been my fellow comrade was tragic, unbearable, and rips at the soul. But what official evidence indisputably pinpoints Ali as the trigger puller of sorts. NONE You're familiar with it--what is there?
Anon 0720pm: It would be totally naive to think Dew Process is the only one on this blog who has access to first-hand knowledge of this case.
The interpreter-- I know you did not intentionally insult my intelligence. There was at least one eyewitness. Again, what was the interpreter doing? You have the facts. Your statement that he was turned doesn't match the facts---or common sense.
We are certainly on opposite ends --and that's respectable
In Macdonnell's own words from the Newsmax article, he states he DOES NOT KNOW:
"I do not know where this bullet was recovered but I would expect that after impact to the concrete wall it fell very close to that wall. The other bullet should have been close to the first and there should have been two impact points on the wall."
His statements lack verity, so excluded. Plain and simple. The MJ obviously concludes likewise.
Again, you are correct on semantics of the desert and don't think for a minute that Phillips doesn't know exactly the location, but you conveniently fail to give our readers the pre- and post-events of the location. If you want to be specifically semantic, then provide all the details and path about the location.
And----somewhere I read that perhaps MacDonnell and the federal prosecuter have at least been on the same side of the fence before in years past----hmmm
Correct me if I'm wrong, but is the next step in this is the post-trial appeal to the Convening Authority - which is the Commanding General at Fort Campbell?
If so, can we file our "amicus" concerns directly with him?
Of note - his "legal advisor" (the Staff Judge Advocate) is also the Senior Rater of the military prosecutors who sat on the evidence.
Do you think he will get fair and objective advice from his legal advisor (the SJA)? Seems like there is an inherent conflict of interest since the SJA's people failed to properly turn over evidence.
Telford,
He will and has receive fairness and justice. The MJ is seasoned, wise, and applies law appropriately. That's why America and the World allow our military to police their own through UCMJ.
Anon 1042,
Not naive to think DP is only one with direct connection to case. You have stated that you have access to transcripts but without evidence to support, DP quotes directly from it. Who you like to reveal your connection? Maybe it would help with my understanding as to what is trial fact and speculation.
Please explaing what is "Harry's" account of events as testified in court? What are SSGT Warner's? Please enlighten me. How did they describe what happened? It is my understanding that they did not witness the shooting but were just in the area.
What are you implying about the Dr. and prosecutor? It is my understanding that the prosecution team is the party that hired him.
Correct me if I am wrong, but didn't the LT chose a jury panel of his peers to decide his fate based on all of the evidence instead of the judge alone? Sounds like the prosecutors and judge took it upon themselves to decide what "all of the evidence" included and how it should be interpreted.
Are you sure you are all referring to the same MJ? There is a wide span between what most of you think of him. Keep in mind that there were many who did not think that the SSG or the
1LT could possibly get a fair trial within the 101st.
Anon 1042,
If Ali was not connected to the IED attack on the LT's men, then why did the Army issue a kill order for him (as stated on LT website)? I would assume that there was other documentation that the LT has access to that also identified Ali as the "trigger man" for activities against coalition forces.
Anon 1158,
The excerpts posted from Phillip's blog are accurate. Note that Dew Process does not dispute them other than negligible semantics. I applaud Dew Process for divulging some of the "unpublished". I'm not in a position to do that but tried to shed light on the "published" as this blog started out with such callous statements of ignorance to the case. I do know that, except for Phillip's blog, every news site you read distorts, diminishes, or leads you to believe several things that are just not true:
-the LT's mission was to interrogate-----way off
-the killing occured in a short time after the IED attack-----truth is it was nearly a month later
-it was justified because somebody needed to die to revenge the deaths of our fellow soldiers (do police get a free ticket to take any 'suspect' of their choosing to a remote location(Dew Process), after detectives have cleared the suspect, and kill when they lose a fellow officer?)
-the LT had a legal weapon...hmm
-it's OK to desecrate a body after killing-----why? think about the why?
-the victim at that time was combative----stripped naked with at least 3 coalition personnel
-information indisputably pinpointed victim as trigger puller of sorts
-it was justified because somebody needed to die to revenge the deaths of our fellow soldiers
-the interpreter was looking away----what does an interpreter do or how does he do his job if his back is turned away from the subjects he's assisting(Dew Process owes some truth in lending here)
Anon1212, Read the jury's decision-25 years. They obviously did their job, not the MJ or prosecutors for them
Anon1217, Fair trial at the 101st? The very cohorts to which the LT's actions were supposedly in defense of. His actions killed a 'supposed' insurgent. Why would the professional men and women of the 101st not be fair and probably biased to his efforts----unless he violated their oath of professional ethics. I submit his best shot at favorable outcome was only at the 101st. As far as I know, these were not peers from other posts, but right here serving in the same Screaming Eagles as he.
Anon1223 ---- a kill order??? Sorry, but you apparently do not understand how our forces operate; there was none
Again, there are thousands, hundreds of thousands, of fighting men and women who have repeatedly chosen the higher moral obligation of their oath to not act in a mafia, assassin fashion in the execution of their duty. I salute them and am disgraced by the actions of this one or two.
Right "here" at the home of the Screaming Eagles. Were you on the defense or prosecution team?
The Lt.'s website now has the MacDonell email to TC under Trial Docs. Revealing to say the least!
http://defendmichael.wordpress.com/
Anon 0823,
The judge has ruled that the Dr.'s opinion and testimony was "favorable" to the defense and has recommended a reduced sentence. Do you think this evidence would have had a effect on the panel members as well? They were the ones charged with the finding of guilt or innocence as well as sentencing (Brady). I surmise that it is in the realm of possibilities that this info could have had an effect on their deliberations and they should have had access to the info. Especially since it came from the prosecution's witness and not from the defense.
As for the LT exacting revenge, when in your opinion does self-defense come into play? If the LT actions to interrogate the detainee warranted disciplinary action, then at point does it become self-defense? I would hazard to guess it was when the control of the situation changed when Ali decided to get up from his seated position and reach for the LT's gun.
As the LT's mother has stated in her interview, she has never seen prosecutors continue to argue a theory that was in direct contrast to the physical evidence.
Since you keep referencing Phillips blog and he was not in attendance for the entire trial, then check out the website for the LT, defendmichael.com. I'm sure that the LT's representatives are instrumental in producing its content. It states that the Army issued a kill/capture order. I may not have personal knowledge and understanding on how the military works and if this situation is any indication then I don't think I ever will.
This situation is a horrible example on how to treat our soldiers.
Defense should contact the panel members and see if any are willing to provide letters to the convening authority recommending clemency for the LT.
Does anybody know or have reliable information on how vigorously the prosecutors cross examined the defense experts on the "defense theory" that the "victim" was standing when shot?
ANON 2242:
__________________________
The interpreter-- I know you did not intentionally insult my intelligence. There was at least one eyewitness. Again, what was the interpreter doing? You have the facts. Your statement that he was turned doesn't match the facts---or common sense.
___________________________
What are facts? And, I'm not being facetious. "Facts" are what you can prove, and may or may not approximate the truth. All I know is when push came to shove, "Harry" the interpreter said he had his back to both when he heard the shots. Whether that's truthful testimony or not, is a separate question, as you know.
The "scenario" per the testimony [and admittedly, we'll probably never know who's testimony is or isn't accurate], was that the SSG and Harry were walking away and past the LT - the "premise" if you will was at that point there was no one between the deceased and the LT, and the LT's head was turned to ask a question when he saw the deceased lunge off the rock and apparently trying to grab the handgun. That makes sense, but of course doesn't mean it's true.
And you're right, the IED incident was @ 4 weeks before - I was looking to see just how familiar people were to the actual facts - you had to be REAL familiar to pick up on that [see below].
There were horrific "chain of custody" issues with the crime scene - Dr. MacDonell's remark about not knowing where the bullet came from, was in reference to the fact that there was no verifiable way to know. But, his Brady testimony was limited to the head shot bullet" The "second" bullet was discussed in his email to the Trial Counsel.
____________________________
The flattening of the bullet, which I had not examined, at that point I did not tell you that because I had not seen it, I don’t believe, on Wednesday. I looked at that later Wednesday--on Thursday as you know. The abrasions on what is the backside of the bullet, in the soft lead the way it had flattened out it had to be pretty much 90 degrees. [Brady Hearing, testimony]
_______________________________ Elsewhere he testified that there was no evidence of a ricochet on the bullet.
But, as a matter of evidence law, you don't exclude testimony because you feel they lack "verity." Credibility is a question for the fact-finder, and this testimony should have been exposed and evaluated by the fact-finder.
Fess up - you're Jame Phillips, Garner's lawyer, and former 101st JAG:
_____________________________
As a military law attorney, while stationed at Fort Campbell as an Army JAG, James served in Operation Iraqi Freedom with the 101st Airborne Division (AASLT) and spent three years at the Fort Campbell Office of the Staff Judge Advocate. He has proudly served as the”Strike” - Second Brigade Combat Team- Trial Counsel....
And, as for the fact that there are no "Kill/Capture Orders," there are plenty of "Wanted: Dead of Alive" orders out there, starting with OBL!
ANON 2031 asks:
______________________________
Does anybody know or have reliable information on how vigorously the prosecutors cross examined the defense experts on the "defense theory" that the "victim" was standing when shot?
______________________________
Good question, but as you know, what's "vigorous" to you may not be vigorous to me or vice-versa. However, the ATC went after them "aggressively" imho, especially since they hadn't been to the "crime scene" - nor had Dr. MacDonell.
But, in ethical fairness, the cross of the 2 defense experts came BEFORE Dr. MacDonell met with the prosecution team and did his demonstration as to how he concluded the homicide took place, which turned out to be consistent with the Defense experts' opinions, as well as the LT's testimony.
I don't have any problems with an aggressive cross, my problems come with the closing arguments, where they were arguing a scenario that they knew had been refuted by THEIR own expert. But, that's one of the problems of detailing Junior JAGs to these cases, as has been discussed on this blog elsewhere.
One other comment to my prior post here, anyone who has ever worked with Dr. MacDonell, knows that he's as honest as the day is long - he tells you when you retain him, "I call them as I see them."
The fact that he did some work on the Tim McVeigh case, for which the LT's mother was on the prosecution team, has or had zero effect on his conclusions. Dr. MacDonell came out of retirement for the Behenna case in part because it was so complex and the crime scene so badly compromised.
Dew Process,
As I've said I appreciate the discussion, but sorry I'm not Mr. Phillips----not even close. Doesn't make sense ---Phillips has an open blog identifying himself.
You know your account of the scenario and interpreter is not accurate. Perhaps another of your attempts to establish familiarity. You and I both know that isn't accurate and that the interpreter was doing his job----
Credibility/Verity/Fact-finder: Apparently the MJ as fact-finder evaluated the testimony for credibility and arrived at the same conclusion as the jury who evaluated the same hypothesis earlier
You conveniently failed to address all the facts of the "remote" location that you were so intimately familiar with
Read your own "hero's" page of the supposed "kill" order. Can you produce transcripts/evidence that one existed? Surprise me. How do you explain the fact that your "hero's" own webpage corroborates the fact that the victim was ordered to be released. Excuse my sarcasm but I guess now your interpretation is "release" order = "kill" order. I did as you to excuse the sarcasm. Did anyone notice this is the "defenses" page. Everything just must be accurate right???? Most can be substantiated but there are holes---they've gotta raise money so the truth will not help that cause.
What would the victim have attacked him with??? naked means naked. How did he get naked and why????
Let's see:
+Naked = no clothing to i.d. victim
+Glock = not traceable
+Grenade = desecrate to unrecognizable state
+Remote location = no witnesses?
+"Failed to report the incident"(Fact,Behenna's page) = hmmmm, why if self-defense?
+"Army intelligence ordered the release of Mansur and Lt. Behenna was ordered to return the terrorist to his home" (Fact,Behenna's page) = take to remote location and execute?
The greater truth and my sincere disgust is that this is all tragic and was avoidable. It's tragic for the LT. The last thing I take pride in is seeing a fellow veteran's future ruined, especially with so, so much potential. It's tragic that we lost fellow soldiers. Nothing hurts more. I have lost personal friends to this war---even buildings post-humously named after them. It's tragic for the victim's relatives and family if he chose such a career. There are NO WINNERS. But as I have repeated on this blog, we must choose the higher moral obligation of our oath to abide the laws-the bedrock- of our nation, military, and profession.
Anon 9:44 --
Thank you for the imbalanced and biased diatribe.
It's good to know the prosecutors, who purposefully withheld evidence, have at least one supporter out there in blogland.
Without the prosecutors in this case taking the moral high ground (your words -- not mine) imagine how messy this case could have been?
Anon0951,
If you read any post that sounds like mine, you will see I have not once spoke in support of the TCs' actions---only the facts and actions of the LT
Don't think for a minute I am a supporter of their actions. Doesn't warrant my comments.
The facts speak for themselves, diatribe or not.
Where do you get the "facts" and "actions" of the LT from? One source, the prosecution witnesses that were called to testify. Prosecution in this case has shown they can't be trusted. If you can't trust the prosecution how can you trust any evidence they choose to put on at trial? Credibility was shot as soon as they purposefully withheld Brady material.
Respect your "opinion"
Our justice system has always been built on guilt and innocence. The burden is on the prosecution not the defense. The only way the prosecution could even come close was to withhold evidence and then be VERY deceptive about it once it was discovered, which, in my opinion goes to credibility. From my understanding, the LT took the stand and told his story, which he did not have to do. The physical evidence seems to support the LT's version of the events. It seems that the prosecution did not produce any witnesses to refute the LT's version. Doesn't that go to burden of proof? What did the prosecution prove? That they are the dishonorable officers in this situation.
Again, I ask: If you do something wrong in the field, that might cause disciplinary action - do you lose your constitutional rights to a fair trial? or
to self-defense?
Anon1021,
Is your interpretation global? If so, did the victim get his fair trial? Do you conclude zero justice warranted. Death is zero justice.
Take your self-defense position, what or who put him in that position with a 1:3 ratio, possibly more and naked:armed odds. What's the worst harm from a naked person? Obviously no concealed weapons. Out of curiosity, what do you consider appropriate disciplinary action.
To answer directly, no you don't lose your constitutional rights. But if I pull a trigger as a result of my doing something wrong, I have already accepted the fact that others may interpret my actions as unjustified.
http://www.msnbc.msn.com/id/15554530/
At what point does self-defense begin? You have presented yourself as "in the know". Is there not a point that the "control" shifts when Ali moves on the LT's gun? Should he have politely asked him to take his seat back on the rocks. He had a split second to make a decision and by the way, this took place in a war zone with a known enemy combatant. Also, my understanding is that the "eye witnesses" were not in the immediate area, so it looks like it was one-on-one.
Take this situation to the public forum and shift to a police officer that shoots a person who reaches behind their back and "appears to be reaching for a gun", only to find that there was not one. Should the officer be charged with premeditated murder because he put them it that position?
Premeditated murder has to have many prongs including prior planning of the murder. From my understanding, the LT is the only one who would know that and he stated that he wanted info from Ali about attacks on coalition forces and was protecting himself when Ali moved on him. The prosecution did not have any witnesses to refute these statements. Just the opposite, they excused their witness that agreed with the self-defense defense.
As Jack Zimmermann put it, why would you take witnesses to an execution.
You present yourself as "in the know" and have refuted the notion that you are James Phillips. With your strong tone about the just and correct verdict being reached, then there are only two other options. Are you with the prosecution team or a panel member? Maybe if that is disclosed, I could better understand where you are coming from in your analysis of this case. As a lay person who has served as a jurist, not military, I am dumbfounded how this verdict was reached with the information available. Reasonable doubt???? I am full of it.
It's apparent you're not familiar with the facts.
I don't know of any police officer that would feel the need to unlawfully interrogate after ordered to release a prisoner, did not, and then consciously decide to travel to a remote, remote location, strip the "releasee", with a 1:3 ratio of armed peers, verified no weapon as the "releasee" naked, use an untraceable weapon (well maybe), desecrate the body, not report the incident, and only weeks later concoct at self defense.
So much lacking from your understanding of the issues.
Credibility/Verity/Fact-finder: Apparently the MJ as fact-finder evaluated the testimony for credibility and arrived at the same conclusion as the jury who evaluated the same hypothesis earlier.
... I guess you are totally unaware of the fact that the MJ did not consider the supressed testimony "Cumulative and Favorable to the Defense!" Which, in essense means it's new evidence. How in the world does the MJ agree with the members on evidense they have never seen?
Take your self-defense position, what or who put him in that position with a 1:3 ratio, possibly more and naked:armed odds. What's the worst harm from a naked person? Obviously no concealed weapons.
Dark and in close quarters the Lt.'s gun would have been the only weapon the deceased needed. It's exactly what the experts (BOTH OF THEM!) have said is the most logical explanation and matches the Lt.'s testimony. He was shot first with his right arm outstretched and standing, most likely reaching for the gun. Have you not been paying attention?
Anon11:21,
I am neither but have sufficient access as others here have...nuff said. I can't speak for the jury nor the MJ nor the TC but am simply one that can see the ease of how they arrived at their conclusions.
Again, this blog started some very uneducated remarks and kill'em all tirades. I've simply tried to challenge assumptions and call foul on errant statements.
Again, it's tragic for a fellow veteran; very tragic. I wish he didn't have to serve a day. But, in the end, he put himself in this position. Appears he would have been a stellar officer with a remarkable career, except for ----
Some day the transcripts will be released of the continuity of actions. Perhaps you'll have your same position, perhaps not.
I am aware of the facts that are presented. The LT may have created the initial situation with the interrogation. By his testimony, he wanted information and then was going to release him as ordered. What would you have done if someone that you believed was capable of violence, reached for your gun? Again, my understanding is that it was one-on-one. "Harry" said that he was some distance away and not facing the LT and Ali. Who knows where SSGT Warner was at this time? You have access to the transcript, maybe you can enlighten me.
By the way, there have been numerous instances where people have died in police custody while being questioned. Have you heard about the teenager that died from a taser? Just one example, there are many more instances as violent people act out in the presence of groups of officers and the worst happens. Should those officers be charged with premeditated murder because they detained this person and the person attacked them?
Anon1133,
Aaaah, the experts who never visited the crime scene@#!#@#@
And the retired expert#@!@$#
I know that was a rhetorical question
??????????????
It is my understanding the SSGT Warner reached a plea agreement. Didn't he describe what happened in this signed statement? With your access, then please let us know what his version of the events is? Where was he and what did he see/hear? Didn't his plea require that he testify to the same facts during the LT's trial? Does his testimony during the trial match his plea agreement?
Anon1137,
You must know a different set of facts.
Read carefully my previous statements and questions on the interpreter. I've stated it over and over.
From Behenna's page "Army intelligence ordered the release". Who are the experts at interrogations? Him or them?
Again, the transcripts will be released some day showing continuity of actions
As far as I could tell, the prosecution did not visit the scene either. The chain of evidence is in question as well, which only goes to the credibility of the prosecution's theory. If the burden is on them and all we have is the available evidence. Given this evidence, the only logical conclusion is two men standing, facing each other in close quarters, one with his arms outstretched, one steps to the side and fires two shots. Bullet fragments, blood spatter, and autopsy results support most logical scenario--self defense.
Anon1145,
If it exists in the news, I'll comment. If not I won't. I haven't searched much on Warner as to published. But sufficeth to say his testimony is consistent.
anon1155,
Arms outstretched or arms up?
Tell us what you know of the blood splatter. If you know the full story then it'll speak for itself perhaps why that account is not accurate.
I don't have access to the transcripts, you do. You tell me what "Harry" testified to seeing and hearing. It is my understanding that he was a distance away and not facing the LT. I think Dew Process offerred that info up and I think he is "in the know".
If I am not correct on SSGT Warner, then please set me straight. Isn't part of his plea that he testify in the LT case?
I referred to DP's comments with quotes from the Dr.'s testimony. The Dr. talks about how the blood spatter tells a story. With you access to transcripts, you can check it out for yourself. Maybe there is more to it, but I only have what has been posted here and a few other articles and blogs.
Brady Violation has been established, specific defense discovery requests went unanswered and ignored by the elite team of prosecutors, prosecution argues a theory that was based on a Disney fantasy land that was not even supported by the prosecutors expert.
And we are supposed to believe a stipulation of fact that was signed/used by the same member of the prosecution who was detailed in SSG Warner's case?
Anon1200,
The interpreter was doing his job! He can't do that with his back turned. Notice Dew Process has not disputed my challenge on this----only negligible semantics. I've called him on this issue at least 3 times
You are correct on Warner plea
Anon1205, Understood---I think his testimony only addresses ground splatter...hmmm
The prosecution team should be brought up on charges of misconduct instead of having a chance to pad their resumes. Who knows what other evidence they are hiding from the defense and what they have influenced witnesses to say. 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!
Anon1228,
You say a split second, some may say 11 days, or at least 12 hours
Is there any other splatter? If he was shot sitting down-execution style, then there should be physical evidence all over the rocks, shouldn't there?
Who are the "some"? What witnesses testified that this was planned?
Obviously the MJ is one of the some.
Rocks and other places sitting or standing
Correct me if I am wrong, the MJ was not the "jury" in this case. The LT chose a jury verdict. The job of the jury is to reach a verdict based on all presented evidence and not preconceived notions. Were there any witnesses that testified that the LT planned this? or any evidence to support such a plan? If so, then please share because I have not found that info as of yet.
I for one cannot assume to know what the LT was thinking so how can anyone else? If all we have to go on is the LT's testimony, then the burden of proof has not been met by the prosecution.
"The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional to how they perceived veterans of earlier wars were treated and appreciated by our nation." George Washington
Oh I forgot, the little physical evidence available seems to fit with the LT's testimony. The more I look at this, the more I see the truth....We just need to print the LT's words when the transcript is available....I look forward to following this case through the appeal so that justice can truly be reached when this LT can return home as the Hero he really is!!
Anon 1249,
WELL SAID!
anon1248,
As all the blogs show, the jury decided from all the presented evidence and they reached a verdict. Debate is on presented evidence, but by TC's witness
Evidence of a plan---plenty as the verdict of MJ and jury indicates
As with all trials, the accused is not the only one who provides testimony---some in support, some against----thus way more than just LT's testimony.
They convicted on UNpremeditated murder indicating NO previous plan of 12 hours or even 12 seconds as would be an indication of PREmeditated murder!
Are you a dim bulb or what?
As with all trials, the accused is not the only one who provides testimony---some in support, some against----thus way more than just LT's testimony.
....You left out and some that has been unlawfully withheld!
In my knowledge of the case, there is no testimony from the prosecution side that disputes anything that the LT testified to. The LT had the right not to testify but to my understanding he wanted to tell his version of the events. I feel safer knowing that soldiers like the LT volunteer for service and serve with honor, pride, and dignity. This LT upholds the Army code: Duty, Honor, & Country...Hoo Ah!!!
It is now our country's turn to return the favor!
I rest easier knowing that men like 1LT Michael Behenna are on the front lines protecting us (that includes you) and people like you are sitting behind your computer screen sitting as judge, jury, and executioner.
Anon 0105,
You are the best witness for the LT. Here we sit in the comfort of our homes/offices having a discussion and you lash out and hurl insults.
Now flash to a warzone--is it so hard (unreasonable) to believe that a man with known terrorist ties would lash out and reach for the LT's weapon during an interrogation?
It is if my only intent is to provoke and stage an excuse for a crime. Totally unreasonable!!!
ANON 2144: I have no agenda other than to insure those facing criminal accusations by the government get due process and a fair trial. I don't know where you're coming from, except to be a supporter of the 101st SJA's office - most likely a member of it.
You didn't read my post carefully enough. I do not "know" what the interpreter was doing or whether his testimony was truthful or not - I wasn't present at the scene. All I know is what "Harry" testified to, i.e., he was walking away and had his back to the deceased when he heard the shots. But, an interpreter does not have to be facing anyone - he just has to be able to hear.
But, no one at trial suggested that Harry was "interpreting" at the time of the shots, so what's your point?
LT Behenna is NOT my "hero" by any standard. His superiors made a dumb decision to have him "escort" Mr. Mansur home, and he made a very stupid, and compromising decision to interrogate him.
There are two reasons why he was naked - but, so what? Clothed or naked, how is that relevant to the issues of murder versus self-defense? But, the how and why was addressed at trial.
As to kill orders, again, you're not reading what I wrote carefully. I never claimed that there was a specific "kill/capture" order with respect to Mr. Mansur - only that they certainly do exist and have existed for some time, e.g. Saddam himself was subject to one.
During the Art. 39(a), session on Saturday 28 FEB 09, why did Trial Counsel STIPULATE that when Mr. Zimmermann asked point-blank if Dr. MacDonell had Brady material, they agreed that they told him that "Dr. MacDonell had no exculpatory material?"
Someone else made a great point - after the LT testified, and the defense rested [and Dr. MacDonell had returned to NY], the prosecution COULD have presented rebuttal testimony to the LT's, e.g., SSG Warner [in the absence of such rebuttal testimony, we can presume he had no rebuttal "facts;"] or more importantly, Dr. Berg, the Government's forensic pathologist [who Dr. MacDonell had discussed his final opinion with].
The MJ was simply wrong when he concluded that there was "no reasonable possibility ... of a more favorable result...." [MJ's Findings of Fact/Conclusions of Law].
Consider this scenario:
_______________________________
Q: Dr. MacDonell, you were retained and paid by the Government in this case?
A: Yes.
Q: You were not called as a prosecution witness in this case, were you?
A: No.
Q: Do you know why your expert opinion was not produced for the edification of the members by the Trial Counsel?
A: I told the prosecutors that the forensic facts, in my expert opinion, corroborated the LT's testimony.
Q: Is it your opinion that the deceased was standing at the time that he was shot?
A: Yes.
Q: Is it your opinion that the deceased had his arm outstretched at the time that he was shot?
A: Yes.
Q: Is it your opinion that the deceased was shot first in the chest and then in the head?
A: Yes.
Q: Would you please state the basis for those opinions?
__________________________________
If you consider that had the Defense ended their case on that note - calling the Government's expert - and that the Government had zero rebuttal to that, how could that NOT have had some impact on the members?
That's my point, pure and simple. If we have a "jury system" [or members in the military justice system] it is for them, not a judge to determine, what if any, impact particular evidence / testimony will have.
Dew Process,
As I've appreciate the discussion, It matters not who I am. Not once have I insinuated, asked, or attempted to discover which of the Murderer's factions you're with. Only concerned with the intelligent discussion and opposing views of the facts.
Show the transcript of interpreter's testimony! FACT:It is not what you say---he was doing his job!
"-----no one at trial suggested that Harry was "interpreting" at the time of the shots, so what's your point?"--------Totally contrary to testimony! If you're in a position to show the transcript, show it. It will be exactly as I say.
Nothing MacDonnell says is different from the combination of the 2 defense experts who didn't totally agree themselves.
OPINION: a view, judgment, or appraisal formed in the mind about a particular matteR; implies a conclusion thought out yet open to dispute
Arms out or Arms up?????
Naked = untraceable clothing = undentifiable = murder. BTW: Where are the clothes????
Grenade = desecration = unidentifiable = murder
Let's see:
+Naked = no clothing to i.d. victim
+Glock = not traceable
+Grenade = desecrate to unrecognizable state
+Remote location = no witnesses?
+"Failed to report the incident"(Fact,Behenna's page) = hmmmm, why if self-defense?
+"Army intelligence ordered the release of Mansur and Lt. Behenna was ordered to return the terrorist to his home" (Fact,Behenna's page) = take to remote location and execute?
You and I have both agreed to disagree on certain things and that is OK. We stand on opposing viewpoints. We both agree, however, that it was tragic and that we both wish it had never happened to this officer who seemingly had a decent career ahead of him.
Anon0105 said: They convicted [the LT] on UNpremeditated murder indicating NO previous plan of 12 hours or even 12 seconds as would be an indication of PREmeditated murder!
circa 1994 – Anon0105 said: They acquitted O.J. on UNpremeditated and PREmeditated murder indicating NO previous plan of 12 hours or even 12 seconds as would be an indication!
Guess we know who side you were on? I dimly see now...hmmm
Anon 0648,
What I think happened and what the evidence shows are two different things. The burden is on the prosecution to prove guilt and in the jury's opinion they failed to do so in reference to OJ. From my recollection, there weren't any Brady violations in that case so it is like comparing apples and oranges.
I am for coming to a conclusion based on all available evidence that is presented. To beat a dead horse, the Brady material should have been heard. If it had and the result was the same, then so be it. Unfortunately, the prosecution chose not to disclose and then lie about having it in their possession. Whether intentional or unintentional is not the issue but that it happened and that classifies this case and its result as unfair and unjust.
OK Anon 0644,
Let's take them one at a time:
1) Naked - yes, mistake by Behenna, but Behenna had another set of clothes in his pocket to give to Mansur when the interrogation was over.
2) Glock - Very traceable, and the shell casings were left at the scene - an act of murder or panic? In fact the Glock belonged to the Prosecution's star witness Sgt Sanchez(who referred to himself as a liar on the stand). Sanchez gave the Glock to Behenna
3) Grenade - Put on Mansur by Warner - Without being instructed to do so by Behenna (as testified to by Behenna and Harry)
4)Remote location - Behenna testified that he took Harry to interpret for him, and Warner came along of his own volition. Behenna testified he did not want his soldiers involved in the interrogation.There were witnesses to the interrogation, just not at the moment of the shooting. I think Warner was relieving himself in the bushes some 50 meters away - Concern on his part?
5) Failed to report the incident - A mistake by Behenna, but can you also understand what Behenna was going through at that moment when he was questioning a known terrorist who was involved with killing Behenna's troops(the intelligence reports were shown to the jury concerning Mansur and his involvement in 4/21)to elict information, and was forced to defend himself. According to the Pyschiatrist who testified, Behenna was operating under Acute Stress Disorder from the loss of his soldiers. He reacted to the threat of Mansur standing up and reaching out, and he shot. He was operating under severe stress and made a bad decision not to report the incident. Does that make him a murderer?
6) Where are the clothes? Ask Warner. He picked them up and disposed of them according to his own testimony.
Is this your strongest argument for murder? Is there reasonable doubt?
You refuse to acknowledge that the trajectories of both bullets entered the right side of the body and head (under the arm) and exited the left (same for the head) - and LATERAL (not downward). How do those wound tracts occur if two people are facing, and the person firing the gun is standing above the person who is shot? Is that reasonable doubt?
Has there ever been a homicide trial where the Prosecutors don't put on the scene evidence either through a detective or expert, and the defense does? I don't know of any.
The panel did find Murder, but consider this:
Because the prosecutors did not introduce the evidence, it forced the panel to decide between LT Behenna's story backed up by the evidence, and a contrary argument made by the Prosecutors who simply made bold accusations that Mansur was sitting on a rock when shot (NO EVIDENCE). The Prosecutors even sent their expert home with the potential testimony that Behenna was telling the truth.
Isn't as simple as: To exonerate Behenna, the panel would have had to come to the conclusion that the prosecutors were lying, which is a huge obstacle to overcome - and why would 3 Prosecutors lie?
Well they did - just read the email by Dr. MacDonell, and the statement the Prosecutors made to Chief Defense Counsel that they had NO EXCULPATORY EVIDENCE ON MACDONELL!
What would the jury think of the prosecutors now?
Anon 0648,
The only difference between premeditated and unpremeditated murder is that in premeditated murder the Government must prove that, "at the time of the killing, the accused had a premeditated design to kill", which the prosecution argued happened in this case. While in unpremeditated murder the Government need only prove that, "at the time of the killing, the accused had the intent to kill or inflict great bodily harm." Again, the only testimony is that of the LT, who states that was not his intent.
The LT was charged and the prosecution argued pre-med without any evidence to prove he planned this event. The lesser charge was not proved either. The only testimony about what the LT intended to accomplish was from the LT. He wanted information before releasing the detainee. To my knowledge, not one witness testified that the LT planned, either in advance or during the moment, to kill the detainee.
What was proved, with physical evidence, was self-defense. Which states that the use of force was justified when a person reasonably believes that it is necessary for the defense of oneself or another. As I believe the LT testified, Ali was reaching for his gun and he was afraid that Ali would use it on him.
Force likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm. In the LT's mind, Ali was capable of violence. By the way, the LT was in a war zone, one-on-one with an enemy combatant who is reaching for his gun.
You stated that you were a veteran, were you a infantry soldier that served in a war zone? I haven't and I would have responded to the threat the same way.
Anon 0906,
This case gets more unsettling as details emerge. I wonder what the panel members will think when they hear what happened without their knowledge. Do they have any recourse to appeal to the convening authority?
I reason that I ask is that they are Army officers that have been lied to by fellow officers. Do false statement rules apply?
Anon0823,
From Anon0648 - Well stated and respected dialogue with intelligence and not emotion.
I'm battered for my position, but I retain it, Brady material or not, because it appears the Brady material did not produce any new conclusions that had not already been vigorously argued, and yet the MJ and jury concluded alike. Hence, my conclusion looking from their eyes for a moment is that the comprehensive set of actions by the LT before, during, and after left NO DOUBT for the MJ and jury.
As you know, the MJ and jury are free to assess the validity or truthfulness of any statement by any witness. I posit they did not find any expert uniquely believable in light of the length of the sentence. In other words they are not bound by law to believe any expert or any account. MacDonnel's words in his transcript is less convincing than the other experts. This is often the case when a 4th-hand assessment of 12 seconds of action is so absolute, despite 12 days, and especially 12 hours of actions to the contrary.
In my opinion, the Dr.'s testimony would have carried greater weight than the defense experts. Most panels think of defense witnesses as "hired employees" of the defense and say what the defense wants them to say. When a witness for the prosecution enters the discussion with opinions that side with the defense, the panel would take note. This opinion was not influenced or coerced by the defense as hence would have a tremendous impact on their deliberations.
Unfortnately, this was not the case so the only remedy should have been the granting of a mistrial or a new trial. Let both sides play on a level playing field with the same information.
Hopefully, the appeals process will correct this situation.
This is incorrect!
"I'm battered for my position, but I retain it, Brady material or not, because it appears the Brady material did not produce any new conclusions that had not already been vigorously argued, and yet the MJ and jury concluded alike. Hence, my conclusion looking from their eyes for a moment is that the comprehensive set of actions by the LT before, during, and after left NO DOUBT for the MJ and jury."
.... The MJ ruled the withheld evidence was favorable to the defense and was NOT CUMULATIVE and could indeed have potential to force a mistrial or retrial! By this ruling he too believed this new information was very important at the point of discovery. That's why he called for a recess for further briefs on retrial after sentencing was complete.
Why he ruled as he did almost a month later is anyone's guess as he didn't provide much of an explanation for his decision.
Anon0906,
Naked - You mean he put the removed clothes in his pocket after killing him. Read the transcript---uses the words "give back"
Glock - What or whose hand receipt was it on? Why not use his govt issued M-4 he was carrying? Only came to light after the botched desecration job and victim was identifiable as....guess who...the person the LT was supposed to release.
Grenade - Without being instructed = prepared plan----sort of SOP---.
You're right there were witnesses---transcript (testimony) says at the time shots fired
Remote Location - "Did not want soldiers involved?" Was this a secure location: a. What is SOP for a convoy stop in, as so many of you have stated, a "war zone"? You seem to know what the transcript says, what does it say the LT ordered the troops? b. If not following SOP to pull security and instead back in vehicles, then no one can hear the shots can they?
Failed to report --- to elicit information? Read the transcript: did not the victim voluntarily offer the supposed information before, without threat? Self-defense is honorable and understandable. Murder isn't. Why not report? Intimately familiar with ASD/PTSD - does not prevent thinking as a reasonable, prudent person. After all, the LT functioned fully, fully successful post 4/21 incident. No linkage to ASD and decision not to report. Who else did not report it---that knew of it?
Clothes - Read the transcript----your account isn't true
Strongest argument - No, add to it all actions on 5/16. You seem closely aware, lay it out.
I acknowledge the trajectories in conjunction "all" the blood splatter, or lack thereof. Was there a height difference between murderer and victim? a significant one?
Under the arm? Again, you and other refuse to address Arms out or Arms up. If interrogating, don't most who do it illegally hunch or squat closer to their victim? Seems like I saw that in Rendition and Bourne.
Aaaah MacDonell again; the retired expert, with 4th hand assessment and "opinions" and statements like "I don't know" and "should have", and with previous contact to the federal prosecutor. Guess you see I'm not impressed by him. Do excuse my sarcasm--i confess
I give him credit for leadership and willing to be the fall guy, errant as it may be----now's time to stand up to the plate and take the licking.
Again, I salute the hundreds of thousands who chose the hard right over the easy wrong. Gotta love the NCO ethic.
Anon1041,
Explanation for his decision is apparent: He believed the LT was guilty of murder
Anon0913,
You state: "While in unpremeditated murder the Government need only prove that, "at the time of the killing, the accused had the intent to kill or inflict great bodily harm." Again, the only testimony is that of the LT, who states that was not his intent."
Was not the LT convicted of previously "inflicting great bodily harm" to the victim? How was this time to be any different?
I have been reading this blog on the Behenna material and all other related blogs and articles. I find this one interesting with the various opinions. I am related to the SSG and attended all of his hearings and family members attended part of the 1LT's trial. I want to tell you that without James Phillips, and left with just military defense counsel the SSG, well I'll just say that civilian counsel was needed and not be derogatory. I can tell you also that until the SSG "found his own way" home from Iraq he was assigned three attorney's. However, one was actually a prosecutor and thought and acted as one. Of course, I am speaking from a knowledge of civilian behavior, not military. From what I saw it is good that the 1LT had Mr. Zimmerman. I have met him on more than one occasion, and I know that he is a very competant and confident attorney.
anon 1101,
When was the LT convicted of previously "inflicting great bodily harm" to the victim? Check his website, his evaluation is posted and he looks like a model officer to me.
As for as I can tell, the MJ sent mixed signals. He ruled that the Dr.'s information was not cumulative and was favorable but did not grant a mistrial or new trial. He contends that it would not have made a difference in the outcome. However, in the next breath, he recommends a lower sentence for the LT. Brady covers not only the conviction but the sentence. Maybe the MJ needs to change his last name from Dixon to Contradixon.
Anon 1054,
WOW, are you reading the transcript of the same trial, because you already said you did not attend. The transcript says nothing about giving Mansur the cut off clothes. Behenna had separate clothes given to him at the detention facility that were in his coat pocket. I know your transcript did not leave that out - you just failed to mention it.
Why do you keep making reference to reading the transcript - it is obvious you are not.
You say Warner placed the grenade because there was a previous plan for him to do that - SOP? When did he testify to that, or are you saying he still is not telling the truth?
Finally - you continue to say the transcript says there was an eyewitness to the shooting and Mansur was sitting on the rock when he was shot. Please read where in the transcript it says Harry saw any of the shooting.
You state "I acknowledge the trajectories in conjunction "all" the blood splatter, or lack thereof. Was there a height difference between murderer and victim? a significant one?"
Don't know the height of the LT, but check out family picture. If you go on average heights, then he looks to be about 6'1" or 2". Most iraqis are not that tall, however, don't know exact height of Ali. If he was sitting and the LT was standing, then Ali must have been a giant to get the trajectories to be horizontal. The LT squatting in from of Ali? Come on...would you kneel in front of a person in close quarters with a history of violence? Now that is a stretch...
You state "Under the arm? Again, you and other refuse to address Arms out or Arms up."
I believe that the LT testified that the arms were outstretched. Check out video interview with LT's mother as she describes his account of events. Which would explain how the shot entered the right side of body under the arm.
Anon (Prosecutor? Paralegal? James Phillips, Dr. Berg?...)
Why don't you come clean as to how you know about this case? You keep saying that you are "in the know" but never reveal anything in the way of proof. You retype half-truths and speculations which are contradicted by DP and an another anon. poster with actual transcript testimony. Either come clean and let us know that you are just reciting pieces of news articles that you have read or prove that you have access to information that the rest of do not. It seems to me that DP and one of the Anon posters are truely "in the know". If they are, then the LT has the best evidence on his side---THE TRUTH.
Anon1158,
I see you obviously believe the LT who was convicted of murder by the way. If he was so believable we would not be having this discussion.
Three sides to every story: His side, opponents side, and the truth. Well one for sure we can't ask---and why?---oh he was murdered. Thus, for random probability sake, let's discount 50% of the murderer's story---sort of flip a coin on each statement he makes. Which 50% do you think I take with all the other evidence?
So, the truth (the third side) we get from the MJ and jury. That's justice
Anon1211,
Just call me --------------- Anon ----- UUUUHH, like you!
Just because I have a differing opinion makes me not in the know?
Cite the "other" news reports where you find information on the following:
Naked - You mean he put the removed clothes in his pocket after killing him. Read the transcript---uses the words "give back"
Glock - What or whose HAND RECEIPT was it on? WHY NOT USE HIS M-4 HE WAS CARRYING? ONLY CAME TO LIGHT AFTER THE BOTCHED DESECRATION JOB desecration job and victim was identifiable as....guess who...THE PERSON THE LT WAS SUPPOSED TO RELEASE [PRIOR TO REMOTE LOCATION].
Grenade - Without being instructed = prepared plan----sort of SOP---.
You're right there were witnesses---transcript (testimony) says AT TIME SHOTS FIRED
Remote Location - "Did not want soldiers involved?" Was this a secure location: a. What is SOP for a convoy stop in, as so many of you have stated, a "war zone"? You seem to know what the transcript says, WHAT DOES IT SAY THE LT ORDERED THE TROOPS? b. If not following SOP to pull security and instead back in vehicles, then no one can hear the shots can they?
Failed to report --- to elicit information? Read the transcript: did not the VICTIM VOLUNTARILY OFFERED the supposed information before, without threat? Self-defense is honorable and understandable. Murder isn't. Why not report? Intimately familiar with ASD/PTSD - does not prevent thinking as a reasonable, prudent person. After all, THE LT FUNCTIONED FULLY, FULLY SUCCESSFUL POST 4/21 INCIDENT. No linkage to ASD and decision not to report. WHO ELSE DID NOT REPORT IT---that knew of it?
Anon1150/1158,
My point exactly. If you were so intimately aware, you would know the exact height of the victim and murderer, not just from a web pic.
Transcript says exactly "give back". Coat pocket or cargo pocket? Check that. But I guess you would selectively overlook where it says the murderer threatened "you will die today"?
Check that.
Warner? - Still not telling the truth
Interpreter: "I started to translate, but---". Check that
And Mom certainly has the 411 right? Oh, the fourth side of every story
Thanks all. The opposition rests. It's been nice and lively discussion. I will be monitoring from this point and perhaps interject from time to time if the facts are so far off.
Dew Process: My pleasure. Thanks for the intellectual discussion and legal dialogue. May we all represent the legal profession with excellence, passion, and knowledge-----and yes of course commitment to disclose all legally relevant material.
Again, this is tragic and NO WINNERS emerged. God Speed
Anon,
You state "Just because I have a differing opinion makes me not in the know?"
It is not the different opinion but you do not provide any concrete transcript testimony that backs what you profess to know
You state "Naked - You mean he put the removed clothes in his pocket after killing him. Read the transcript---uses the words "give back""
I believe the Anon poster stated that the transcript says that there was another set of clothes that the LT had carried on his person. These clothes were given to him when he got the detainee.
You state "Glock - What or whose HAND RECEIPT was it on? WHY NOT USE HIS M-4 HE WAS CARRYING? ONLY CAME TO LIGHT AFTER THE BOTCHED DESECRATION JOB desecration job and victim was identifiable as....guess who...THE PERSON THE LT WAS SUPPOSED TO RELEASE [PRIOR TO REMOTE LOCATION]."
Again, the other Anon. poster states testimony was given that the glock was obtained by sgt. sanchez. Never saw a report that LT carried an M-4, do you have information that LT was carrying another gun? First that I have heard that one. Again, you are offerring up info. without backup.
The LT does not deny shooting the detainee and to my understanding has never denied it. As for not reporting it, it is my understanding that is correct but does that mean murder? Again, transcript has SSGT Warner putting grenade under body not LT. My understanding that testimony supports LT's story that he never said to/ordered/watched as SSGT Warner burned the body.
You state "You're right there were witnesses---transcript (testimony) says AT TIME SHOTS FIRED"
Harry testified that he was not facing LT when shots fired. Is that an eye witness? Anon. posted that SSGT Warner was 50 yards/meters away. Don't think he could have seen anything clearly from that vantage point.
You state "Failed to report --- to elicit information? Read the transcript: did not the VICTIM VOLUNTARILY OFFERED the supposed information before, without threat?
Where in the transcript is that information? It is my understanding that Ali was not cooperative in giving information.
You state "Intimately familiar with ASD/PTSD - does not prevent thinking as a reasonable, prudent person."
Does the following seem reasonable and prudent to you....
A subjective sense of numbing, detachment, or absence of emotional responsiveness
A reduction in awareness of his or her surroundings (e.g., "being in a daze")
Derealization
Depersonalization
These are some of the symptoms of Acute Stress Disorder as I have researched. There are more but to be diagnosed only three have to apply.
Anon,
Checked his officer review posted online and did have to rely on picture (although I was close). The LT was 6'. Now do you want to comment on the horizontal trajectory?
"WHO ELSE DID NOT REPORT IT---that knew of it?"
You have never once used this logic in conjunction with the prosecutors unethical behavior.
Once again...
"The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional to how they perceived veterans of earlier wars were treated and appreciated by our nation."
George Washington
It is widely known in the forensic field that forensic/physical evidence speaks for the dead, it is unbiased and unapologetic. It is clear that the prosecution did not want to listen and tried to fit a square peg in a round hole. Unfortunately, they got away with it for the time being but the TRUTH will set the LT free.
OK Anon0112,
ASD - In the words of the Defense's own Psych witness, "ASD is not prolonged---Behenna never lacked mental responsibility"
Ask Dew Process about previous voluntarily offered info by the victim at a previous unlawful interrogation by LT.
Interpreter did not testify to facing away but rather attempted reasoning with victim. Check the record.
Glock & M-4? Dew Process should know, if he has the transcripts
Clothes? Correct, two sets, but LT stated "give back" removed clothes. Again, where is either set? What happened to them? No clothes = no identification of body or linkage to Am forces = cover up = murder = intent
Don't know what other concrete transcript I can provide. Are you assuming just because I don't put everything in quotes? Bad assumption.
Pretty much the only other transcript quotes on here from DP and other anon is---oh yes---the posted testimony of----oh yes---the retired expert. Why does the LT's link page not link to Phillip's blog? It links to everything else-------could Phillip's blog be a mostly accurate reflection of truth; or---oh no----the defense would never refer to a link of the co-conspirator; that's plausible
Believe what or who you want. I'm not looking to win a popularity contest----hence, the moniker "anon". But I know of, at the very least, 8 others who had intimate knowledge of the facts and concluded the same------1 MJ and 7 peers. Make that 11 if you believe the TCs, but don't think I can sell anyone on here with that.
You have a way with words by ommitting just the right things when quoting transcripts. You stop just short of answering your own questions, i.e. where clothes were/are and what was the final disposition of them. Keep reading the LT's testimony and you will answer your own questions.
My belief of why there is no link to Phillips blog---just check the SSGT testimony during the LT's trial. Would you link yourself to that? If you have access to his testimony, then you know what I mean!!! The cross was very telling!
Anon0153,
Those would be---- "rhetorical"---- questions; meant to jar thinking. I know the answer. The point being to bring those questions to the unlearned so they explore the options, the why, and decisions made. Again, news reports I've found have it so sanitized that it's easy to conclude this guy a hero. When obviously, by the sentence, he apparently is not.
Finally signing off.
regards
The Flock is gathering......
http://www.screamingeagle326.com/index2.htm
So I am not sure if this was already addressed but who was the dipshit that released the terrorist in the first place? And who was the even dumber dipshit that asked 1LT Behenna's platoon to take him home?
Anon who is monitoring discussion and has signed off,
famous Sherlock Holmes quote:
"when you have eliminated the impossible, whatever remains, however improbable, must be the truth."
Dr. Berg, I presume???
Anon 0516,
The LT was given the order from his superior officer.
For the Record - I do not have all of the trial transcripts. I was involved extensively in one of the pretrial motion issues, and again extensively with the Dr. MacDonell scenario, and have spoken at length with 2 of the LT's defense attorneys.
I know the Defense's forensic pathologist, from another court-martial, who btw is a retired 0-6, military pathologist.
Rather than get further bogged down in the minutiae of the case any more, I pose 2 rhetorical questions:
1) For any West Point [or other Service Academy] graduates - would a Cadet be subject to a Honor Code violation, for misleading the Defense Counsel about Dr. MacDonell's expert opinion or "quibbling" that it wasn't exculpatory?
2) In general, isn't the core issue that we've all been debating here, this: Can one have "confidence" in the verdict and sentence based upon the failure to disclose Dr. MacDonell's testimony, or is there that nagging, "but, what if" thought?
In the end, would it have made more sense for the MJ to have re-called the Members [he "recessed" rather than "adjourned" the court], and individually questioned them to the extent of:
"We have just discovered that a prosecution expert witness rendered an opinion that corroborated the Accused's testimony in the context of how the shooting occurred. Unfortunately, that information did not get provided to the Defense until after a verdict had been rendered and announced. In your mind, without saying why or how, would your having heard that evidence, affected either your verdict or your sentence, yes or no?"
Unorthodox, for sure - but, if a majority said "no," then the MJ's ruling was probably correct. But if a majority said "yes" then the New Trial motion should be granted.
Now, and for the years that the appellate process will take, we're left with rank speculation, unless the Members "reach out" to the Convening Authority and recommend either a new trial or further clemency.
For those of you who practice in the civilian sector, this would be an ideal case for bail on appeal. Technically the CA could defer confinement, but that's not about to happen.
5 out of 7 was needed to convict. We don't know how many voted to convict and how many didn't but we know it was at least 5 out of 7.
If it was in fact, 5 out of 7, then it would only take 1 more member to flip and the 1Lt. would be back on duty!
I don't get the whole majority thing in your unusual solution.
Furthermore, the flagrant nature at which this material was withheld can and should beg the question; If they are willing to lie about this, what else might they have withheld?
Logical conclusion; mistrial.
Dew Process,
Thanks for the input. Can the panel members act upon this situation now that they have been excused? Any prescedence (in military court) for letting the LT out pending appeal?
ANON 1859 - I totally agree, the proper remedy should be a mistrial/new trial. And your observation is very cogent - let me try again.
Indeed at least 5 of the 7 members had to be convinced beyond a reasonable doubt of the LT's guilt on the unpremeditated charge. But, not looking at the guilty verdict per se, had the MJ sought the Members input on simply whether or not the withheld information MAY HAVE influenced the verdict, I think a simple majority [here 4 of 7] saying yes, should lead to the conclusion that a mistrial was appropriate. That's all that I was suggesting in the context of removing the speculativeness of the MJ's conclusions to the contrary.
As this thread aptly demonstrates, reasonable minds can (and obviously do) differ, and if we're going to have a system of justice that supposedly gives the Accused the benefit of the doubt, then in the admittedly out of the ordinary scenario this case provides, play it safe and retry the LT with all of the cards on the table.
ANON 1901 - The Court Members are indeed "free" to make recommendations to the Convening Authority - they can't be compelled to however. On rare occasions I have had Members do so.
As to your other question, the law specifically allows the Convening Authority to "defer" the imposition of a sentence, to include confinement. In fact that happened here while the MJ was considering the Mistrial Motion after the sentence - the LT was allowed to remain "out" pending the MJ's decision.
There is simply no provision for bail, but the accused could seek Habeas Corpus relief on the grounds that the "conviction" and thus sentence, was obtained in violation of his constitutional right to Due Process.
I'll round this puppy off with the 140th posting.
BLUF: I've been a trial lawyer for a long time, have taught lawyer ethics and trial advocacy in law school. Caveat: I am not infallible.
The prosecutors did mess up when they didn't turn over the opinion of their expert. All "maybe" harmless in guilt/innocence - however it clearly could impact sentence and that's one big reason this case will be back.
Where it becomes real bad and reversible is when she argued that the accused's version of events were not believable (when she knew her evidence was to the contrary). That one may very well be reversible conduct.
She should have remembered that little voice of "duty, honor, country."
The battle doesn't equate to the whole war.
September 15th, 2008 3:05 pm
Iraqi translator tells US soldier's hearing of gruesome murder
AFP
An Iraqi translator told a US soldier's pre-trial hearing on Sunday of the gruesome murder of a detainee who was shot and later had his face disfigured by an incendiary grenade.
The translator, whose name was withheld for security reasons, told the hearing that Mohammed was first shot and later had his face disfigured by a thermite grenade.
The murder was allegedly committed on May 16 under a bridge in the northern oil refinery town of Baiji, after the two soldiers left their base with Mohammed to set him free at a checkpoint.
Behenna and Warner started taking off Ali Mansur's clothes with their knives. They then cut his handcuffs."
Behenna ordered the detainee to sit, the translator said, adding that Behenna seemed to be keen to get information from the detainee regarding an attack on US troops in April.
"Ali Mansur said I will talk to you but Lieutenant Behenna pulled trigger and killed him," the translator said speaking in English, adding that Behenna had told him that the detainee was linked to an attack on US forces on April 21 near Baiji.
"Before we started the patrol, Lieutenant Behenna told to Ali Mansur 'I will kill you'. I thought Lieutenant Behenna was trying to scare him. I did not think he would go through (with it)," the translator added.
"I was standing 10 metres (yards) back during the shooting -- I could see everything even if it was getting dark -- and Sergeant Warner was next to me.
Warner then "took the grenade from his pocket, pulled the safety ring, walked around and put the grenade under Ali Mansur's head," the witness added.
"Then they hid his clothes, and Behenna and Warner went back."
Corporal Cody Atkinson said that Behenna and Warner, armed with a grenade, took Mohammed out of the vehicle and under the bridge.
Mohammed was initially believed to have been freed along with another detainee at a checkpoint, but his naked and badly burnt body was found under the bridge the next day.
I agree with Mr. Cicero 100%.
Well said.
How old is that article? Is that Harry's testimony from the article 32 hearings in quotes?
Interesting..... the quotes in your post do not match the testimony of Harry in the trial.
Is the mirror getting harder to look at as each day goes by?
September 15th, 2008 3:05 pm - it appears to be the 32 "testimony" but obviously wasn't what he said at trial.
PRE-TRIAL(9/2008) Vs TRIAL(2/2009) COMPARISON
September 15th, 2008 3:05 pm
Iraqi translator tells US soldier's hearing of gruesome murder
AFP
AS AT TRIAL ALSO: was shot and later had his face disfigured by an incendiary grenade.
AS AT TRIAL ALSO: under a bridge in the northern oil refinery town of Baiji, after the two soldiers left their base with Mohammed to set him free at a checkpoint. Behenna and Warner started taking off Ali Mansur's clothes with their knives. They then cut his
handcuffs."
AS AT TRIAL ALSO: Behenna ordered the detainee to sit, the translator said, adding that Behenna seemed to be keen to get information from the detainee regarding an attack on US troops in April.
AS AT TRIAL ALSO: "Ali Mansur said I will talk to you but Lieutenant Behenna pulled trigger and killed him,"
AS AT TRIAL ALSO: "Before we started the patrol, Lieutenant Behenna told to Ali Mansur 'I will kill you'. I thought Lieutenant Behenna was trying to scare him. I did not think he would go through (with it)
AS AT TRIAL ALSO: "I was standing 10 metres (yards) back during the shooting -- I could see everything even if it was getting dark[could see arms, but not hands]
NOT AS AT TRIAL: and Sergeant Warner was next to me.
AS AT TRIAL ALSO: Warner then "took the grenade from his pocket, pulled the safety ring, walked around and put the grenade under Ali Mansur's head," the witness added.
NOT AS AT TRIAL: "Then they hid his clothes, and Behenna and Warner went back."
AS AT TRIAL ALSO: Corporal Cody Atkinson said that Behenna and Warner, armed with a grenade, took Mohammed out of the vehicle and under the bridge.
AS AT TRIAL ALSO: Mohammed was initially believed to have been freed along with another detainee at a checkpoint, but his naked and badly burnt body was found under the bridge the next day.
It's a two-way mirror; I C Uuuu
Where's the cross?
Cross and crown in view, how bout uuuuu?
Back to the case: Pretty telling account ya think? Don't know which mirror you refer, but certain a mirror on the outside is better than a mirror at leavenworth
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."
—— John Adams
Our forefathers were great men, we need to return to their way of thinking!
Telling account.......
Not really.
great quote Anon147. seems like you agree with anon951
i agree wholeheartedly;
few seem to believe what anon951 posted, but if facts are as stated, our wishes, inclinations, passions can't change it and maybe the outcome was right
Anon 0204,
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."
—— John Adams
Unfortunately, all the facts were not presented. Seems like the prosecution's wishes and passion for a guilty verdict tried to hide/alter the facts and evidence in this case. Too bad that Dr. McDonnell is a stubborn scientist with ethics and a conscience. The three Capt. and Col. Berg could learn the meaning of "Duty, Honor, Country" from this civilian.
The glock belonged to Sanchez?
The Sgt that was the ranking NCO on the patrol when the detainee was shot?
The Sgt that did not hear, see, or smell anything?
The Sgt that was given immunity at the same time charges were filed against SSG Warner with the only person/persons making accusation against him being the same TC that withheld evidence at the 1LT trial.
I think the SSG and the 1LT need someone fighting their battle, and I don't think anyone other than perhaps they and their families realize the magnitude of this situation.
I have just finally started to understand the power that the government has and what a mighty big stick they swing.
Men and women don't join the army!
"Don't know which mirror you refer, but certain a mirror on the outside is better than a mirror at leavenworth"
This quote speaks volumes about how the government approached this case! Win at all costs even if it means lying and breaking the law!
Despicable quote btw!
anon11:11,
can't take the mirror, don't look into it!
despicable - murder ranks higher on the despicable-ometer
glad to have struck that nerve! put some neosporin on it.
quotes not needed to speak of the felonious actions of a convict. they have a way of speaking for themselves, thus the first 6 words of this thread. read it again!
There you have it.... His/Her words speak for themselves.
As the wise folks in the hills of Tennessee would say; "Throw a rock into a pack of dogs and one of them will yelp!"
Hey Anon 0811,
Check out these articles:
http://canadafreepress.com/index.php/article/9744
http://www.freerepublic.com/focus/f-news/2213843/posts
So is concealing exculpatory evidence SOP for the JAG Corp?
Yelp, yelp. Guess I'll own the first Yelp since I started this with "Is the mirror getting harder to look at as each day goes by?" in my 29th statement. (Anon0346)
Now that I have profusely confessed and apologized, I'll keep my discussion to a professional and intelligent level.
Thx
"I'll keep my discussion to a professional and intelligent level."
Bless your heart!
Meanwhile.... another Brady violation, and the Government's response:
http://www.nytimes.com/2009/04/02/us/politics/
02stevens.html?pagewanted=1&_r=1&hp
This is NOT an "April Fools" joke!
DP,
That is several cases in the last couple of days that have been dismissed due to prosecutorial misconduct. I can only hope that the LT gets the same justice for the same profane behavior of his accusors.
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