The Behenna Pardon Part 3: The Brady Violation

The White House

In the comments to my post on good order and discipline, two attorneys who filed amicus briefs in Behenna's appellate cases have emphasized the Brady violation. For that reason I will briefly provide my take on that violation and whether it required a new trial or justified a pardon.

First, it is important to note that not every Brady violation---a failure to provide information favorable to an accused's case that is known to the government---requires reversal of a conviction and a new trial. The ultimate issue in every case is whether the accused was prejudiced by a disclosure violation. On the basis of what I have read (including the comments to my earlier post and the amicus briefs related thereto), I agree with the CAAF majority that, in light of the overwhelming evidence of guilt, no prejudice resulted from this Brady violation.

The Brady violation. During the trial and near its conclusion, the forensic expert retained by the government told prosecutors that he agreed with defense forensic experts who testified that the available evidence supported the views: (a) that the victim was standing when shot the first time; (b) that the victim was shot in the chest before being shot in the head. These opinions were not conclusive on the issue of whether the victim reached for Behenna's weapon, as the defendant had claimed, but they supported that theory.  Defense experts had already testified as to these opinions and admitted on cross-examination that other theories were plausible. Prosecutors failed to disclose this expert's opinion to defense counsel until after the panel returned findings of guilt, and after receiving an email from their expert. A defense motion for mistrial was denied.

The trial judge and appellate courts found that the government expert's opinion would have been cumulative and, in any event, not at all dispositive of any actual legal issue related to Behenna's convictions for unpremeditated murder and assault. Even accepting the idea (offered in a comment to my earlier post) that the expert would offer a different basis for his views on these points, I do not see how this expert's opinion evidence would have changed the result in this case. For that reason, I think the CAAF majority's conclusion that no prejudice resulted from this Brady violation is supported by the record.

Although I will address the law of self-defense on the battlefield in a separate post, I largely agree with the CAAF majority on the application of self-defense principles to this case (though their discussion of the issues could have been clearer). My analysis here proceeds from that premise.

Let's entertain the idea for a moment that the defense could conclusively establish its theory on the position of the victim (standing) and shot sequence (chest then head). Would that prevent or call into question an unpremeditated murder conviction? I think not, for the following reasons.

(1) The victim's position and the shot sequence are not conclusive or even persuasive evidence that Ali was reaching for Behenna's weapon. This is particularly so in light of other testimony (the interpreter) and the fact that Behenna did not make a self-defense claim in the immediate aftermath of the incident. A sincere self-defense claim is also inconsistent with tossing a thermite grenade to distort the crime scene, which Behenna had inquired about well before these events.

(2) Let's assume Ali was standing and reaching for Behenna's weapon, and that this somehow explains the chest wound location.  Behenna said he fired a "pair" of shots in fairly rapid succession. Two other witnesses said that there was a noticeable delay of roughly two to three seconds between shots. The pathologist testified that the shot to the victim's temple was the cause of death.

If Behenna shot the victim in the chest first, why would he then need to shoot him in the head? In other words, even assuming the first shot was fired in self-defense (but see ¶ (3) below), and it was the chest shot, it was not the fatal shot. A later shot to the right temple would not be necessary for self-defense. Two or three seconds later, a slumped- (or slumping-) over detainee (according to the interpreter) who has just been shot is no longer a threat, if he ever was. This brings us to CAAF's reason for finding no prejudice.

(3) Alternatively, let's assume both shots were fired in response to the victim reaching for Behenna's weapon, exactly as the defendant claimed, and that the two shots were essentially one act of self-defense. There is no debate that Behenna, in full battle gear, was the first person to offer deadly force by pointing his loaded weapon at a naked, unarmed, unthreatening detainee.

Behenna had no lawful justification or excuse to offer deadly force under the circumstances. He therefore was an "aggressor" who had no right of self-defense unless he had withdrawn or the victim's responsive use of force was an escalation. Nothing in the facts suggest that Behenna had withdrawn or attempted to. At most, in response to Behenna's unlawful offer of deadly force, the victim may have thrown a piece of concrete at him and reached for his weapon. Neither of these acts would have been an escalation of the deadly force offered by Behenna.

In other words, even if the government expert's opinion evidence would have conclusively established the facts the defense proffered, it would not have changed the application of self-defense principles to the events. That was what the CAAF majority held, and it is perfectly reasonable result.

In sum, the issue is not only whether there was a Brady violation. The ultimate issue is whether a Brady violation resulted in prejudice to the accused. I am well aware of the general and valid concerns raised by the briefs filed by the attorneys who commented on my earlier post. In light of the facts in this case, however, I simply do not believe that prejudice resulted, or that a new trial or pardon was warranted. For other reasons that I will not address here, I am also quite doubtful that this Brady issue was the primary or even a significant basis for this pardon decision.