Thursday, April 23, 2009

Motion for new trial in Behenna?

We've previously discussed the conviction of 1LT Michael Behenna for unpremeditated murder and resulting 25 year sentence. We've also discussed the allegations of a Brady violation that followed the conviction.

I've now received a report that 1LT Behenna's counsel have filed a motion for a new trial with the military judge. Can anyone confirm that report or, even better, shoot us a copy of the motion? As always, you can reach us at


Dew_Process said...

It was filed yesterday with the MJ and government.

The Motion is short and to the point, the Affidavit attached is detailed and claims that the Trial Counsel had first hand knowledge of Dr. MacDonell's "favorable" Brady conclusions BEFORE the Government rested and they argued, and before Dr. MacDonell left.

The Motion was brought pursuant to U.S. v. Webb, 66 MJ 89 (CAAF 2008).

Dew_Process said...

PS - the Affidavit was from Dr. MacDonell.

Anonymous said...

New trial is almost guaranteed according to my sources. The trial counsel might need a lawyer of his/her own when this all said and done....

Anonymous said...

If the MJ follows Webb, you're probably right ANON 2046.

One collateral consequence of the Mistrial Motion was that it raised a problematic, Double Jeopardy issue a la Watada.

There's both a different standard in a New Trial Motion and I don't see Double Jeopardy as a problem.

My source says that the Dr's Affidavit claimed that all 3 of the trial counsel were told of his opinion before the Accused was even cross-examined, which they apparently denied in an unsworn proffer at the mistrial hearing.

If the judge grants a hearing, that could be interesting.

Socrates said...

This story tends to confirm my suspicion that the two most common forms of prosecutorial misconduct are 1) coaching witnesses, and 2) Brady violations.

Please do not misunderstand me: I am not saying that these errors happen all the time (I would say instead, "not infrequently") and I do not believe they always occur due to design or malicious intent.

I think coaching witnesses and Brady violations occur in the heat of battle, when prosecutors are emotionally invested in a case, unable to detach.

Hypothesis: Prosecutors and defense attorneys still hold a range of opinions as to how broad or narrow the "turnover" requirements are under Brady v. Maryland, 373 U.S. 83 (1963), 46 years after the Supreme Court ruled that withholding evidence violates due process "where the evidence is material either to guilt or to punishment."

"Letting go" of some witness, testimony, evidence, etc., under Brady, is one of the hardest and most disciplined things that a prosecutor must do. Some can't. But, I'm also reminded of JO'C's maxim on avoiding unnecessary appellate litigation - and whimsically think of that famous scene from "Spinal Tap" in Nigel's guitar room when Nigel brags about being able to turn his guitar "up to 11."

How many prosecutors are simply trying to turn their case "up to 11." And is that really necessary?

Phil Cave said...

I agree Socrates: discovery and coaching, especially in sexual assault and child abuse cases. And the coaching is not limited to the lawyers.

For example, counselors who play question and answer before trial; counselors who talk to "victims" about tricks lawyers (only defense lawyers apparently) play in court-rooms; and let's draw.

Anonymous said...

Trial Counsel must be held to a higher standard than Defense Counsel since TC must represent justice, but I am pretty sure that there are some Defense Counsel counsel who "coach" witnesses and don't turn over required reciprocal discovery.

Socrates said...

...which is why some prosectors feel entitled.

But could you please elaborate on the term "required reciprocal discovery" and provide a citation? I just have not heard this peculiar combination of words before.

What exactly is the defense attorney required to provide to the government in order to help it convict his or her client?

Coach me.

Anonymous said...

RCM 701(b) "Disclosure by the Defense" is a good place to start.

Anonymous said...

"required reciprocal discovery"

It's more of State criminal law term. Some state's require a lot more reciprocal discovery than the Feds or Military require.

Socrates said...

Anon, thanks for the cite to RCM 701(b). Under reciprocal discovery, defense counsel must permit the trial counsel to inspect any documents, tangible objects, reports and tests that it intends to introduce in its case-in-chief. I honestly had not heard or noticed that this requirement was actually called "recipricol discovery" before; I just thought this rule constituted the rather obvious "no surprises" requirement.

So I am wondering, from the prosecution side, where they see defense attorneys violate this rule? Do you see defense attorneys try to sneak-in "last minute" evidence, or some such tactic?

I found a pretty good article on this topic in The Army Lawyer, February 1999, "The Art of Trial Advocacy," by the Faculty at the Judge Advocate General’s School, U. S. Army. It is a good primer on discovery requirements for military practioners.

Anonymous said...

For example some (very rare) DC gamesmanship includes raising an alibi/innocent ingestion defense at trial without providing required prior notice per RCM 701b(2). When this happens MJ will normally grant a continuance but that is of little help to the G when delay requires recocking witnesses and members - particularly in an expensive OCONUS case. DC can leverage the paternalistic MilJus system for tactical advantage. Any prudent MJ knows that Judges rarely get overturned ruling in favor of the defense.

Anonymous said...

Anon 1522 - considering the state of the law on "late" alibi notices and that preclusion is a proper remedy, only a truly ignorant DC would spring this on the gov't at the last moment. I agree that that puts the MJ in a bind because if the alibi is bona fide, you're creating an IAC claim. And with the government's resources, if they can't evaluate the alibi or alibi witnesses in 48 hours, somethings not working right.

With respect to the "innocent ingestion" defense, it's probably IAC TO comply with what is clearly an unconstitutional rule. Of course, that does not mean a DC can just spring that at trial. The correct procedure is to Move for Appropriate Relief that requiring compliance violates the accused's right to remain silent, her right to not incriminate herself and for a Protective Order not to have to make the "admissions" that the rule requires. There are a host of constitutional infirmaties with the way the rule is worded. But, you litigate that in advance of trial for sure.

Anonymous said...

What does any of this have to do with this case? The TC is the party who intentionally withheld the evidence, not the defense!!!

It's as if this thread has taken the path of claiming the reason TC broke the law in this case is because sometimes DC might do the same in very extreme and obscure situations. I would certainly hope noone on here is suggesting that this reasoning makes the egregious behavior by this TC acceptable by any stretch of the imagination!

Anonymous said...

Does anyone know if the TC is still a TC?

Anonymous said...

While preclusion of an alibi could be barred by the MJ I've not seen one that would take such a drastic step. Most MJs fret over their appellate record (rightly so) and chose to not make appellate issues. I think that is a fair assumption since our CCAs rarely and CAAF never embraces waiver. Each time this has happened to me the MJ says, "Government I will give you a continuance, how long do you need?"

Jason Grover said...

Socrates, going back to your original comment, I agree that TCs who become emotionally involved in their cases are most likely to make bad decisions. As somebody who has been a TC, is a TC now, and is slated to go be a TC in my next job, I have thought a lot about the proper role and duties of a TC. I was taught by my first boss, CDR Nels Kelstrom, JAGC, USN (ret.) that the government never gets in trouble when they hand over everything. And I teach my TCs to maintain that open-file policy. If it is in my file, it should be in the DC file. As a TC, I have nothing to hide and my interest should be in justice, not winning the case. The I-have-it-you-have-it philosophy is easy and straightforward. Of course, there is sometimes rebuttal information that might be held back because the issue hasn't been raised yet, but that is rare and most of the time, it is probably better to turn that over too. It is much easier to respond to discovery fights as well when you have a long-standing open-file policy. TCs should wear the white hat. But you see TCs get in trouble often in big cases where they get too attached to the result.

Anonymous said...


I tend to agree with most of your thoughts. However, growing too attached to a result is just one aspect of the problem -- inexperience, poor supervisory oversight, not understanding basic rules of evidence, etc, are all components of these types of "inadvertent" discovery issues.

John O'Connor said...

I think Anon 2230 makes a good point.

I have always believed that real experience and mentorship is essential within TC and DC shops because of the relative inexperience of many of the more junior counsel. I knew a couple of fairly senior TCs (not in my office) who really weren't into mentoring the newer TCs, basically taking he view that they were busy enough on their own cases. That essentially left the junior counsel adrift because they had no experience, no mentoring (and, at least in the 1995 era, a piss poor crim law instructor at NJS). That lack of cohesion and mentoring is killer for a trial shop where so many counsel lack experience.

My TC shop only had three TCs at a time, and (at least when I was there) there was a real camaraderie and mentoring spirit, so the junior guys could just come in and talk through issues with the more senior TCs. But if the new counsel or won't, consult the more experienced counsel in their office, that's a recipe for bad things happening.

Anonymous said...

Check out Cone v. Bell. Intent or lack of supervision of the trial counsel is not the issue in LT Behenna's case. The LT's right to due process was violated and this injustice needs to corrected NOW!

[April 28, 2009]
JUSTICE STEVENS delivered the opinion of the Court.
The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure “that ‘justice shall be done’” in all criminal prosecutions. United States
v. Agurs, 427 U. S. 97, 111 (1976) (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). In Brady v. Mary-land, 373 U. S. 83 (1963), we held that when a State sup-presses evidence favorable to an accused that is material to guilt or to punishment, the State violates the defendant’s right to due process, “irrespective of the good faith or bad faith of the prosecution.” Id., at 87.

Anonymous said...

The Trial Counsel filed an unsworn Answer "generally" denying the defense expert's claims, but not specifically addressing his accusations.

Anonymous said...

Status Quo for this dishonest and dishonorable bunch! Deny and/or Lie as much as necessary. How long will this nonsense be allowed to continue? It's time for someone to STAND UP and do the right thing by Freeing the 1Lt! Then they need to deal with this group of scalawags to restore a sense of Justice in the UCMJ!

Anonymous said...

The judge denied the motion for a new trial for the second time despite a very concise letter from the TC's expert describing exactly what they knew and when they knew it.

Anonymous said...

Can anyone provide a link to the trial transcripts?