United States v. Behenna
71 M.J. 228, 2012 CAAF LEXIS 736, 2012 WL 2684980 (2012)
Rule of Law:
An initial aggressor loses the right to self-defense and cannot regain it unless the victim escalates the level of force or the aggressor withdraws in good faith; furthermore, a failure to disclose favorable evidence is not a Brady violation if the evidence is immaterial to the outcome because the defense it supports is legally unavailable.
Facts:
- In 2008, Appellant Behenna was a platoon leader in Iraq who suspected a detainee, Ali Mansur, of organizing an IED attack that killed two of Behenna's men.
- Intelligence linked Mansur to insurgents, but an initial interrogation yielded no results, and Behenna was ordered to return Mansur to his home village.
- Instead of following orders, Behenna took Mansur to a secluded culvert in the desert to interrogate him further without authorization.
- At the culvert, Behenna stripped Mansur naked, cut off his restraints, and ordered him to sit on a rock.
- Behenna pointed a loaded pistol at Mansur and threatened to kill him if he did not provide information about the IED attack.
- According to Behenna, Mansur stood up and reached for the pistol, prompting Behenna to shoot Mansur twice, killing him.
- A government expert consultant later formed an opinion that forensic evidence supported Behenna's claim that Mansur was standing when shot, but prosecutors did not disclose this to the defense until after the verdict.
Procedural Posture:
- The government charged Behenna with premeditated murder and assault.
- A general court-martial (trial court) convicted Behenna of unpremeditated murder and assault.
- The court-martial members sentenced Behenna to dismissal and 25 years confinement (later reduced to 20 years).
- Behenna appealed to the United States Army Court of Criminal Appeals (CCA).
- The CCA affirmed the findings and the sentence.
- Behenna appealed to the United States Court of Appeals for the Armed Forces.
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Issue:
1) Is an erroneous jury instruction regarding the 'escalation of force' harmless error when the defendant was the initial aggressor against an unarmed detainee? 2) Does the government's failure to disclose its own expert's opinion that supported the defense theory constitute a violation of due process under Brady v. Maryland?
Opinions:
Majority - Judge Stucky
No, the erroneous instruction was harmless because the defendant had lost the right to self-defense as a matter of law, and No, the undisclosed evidence was immaterial. The Court reasoned that Behenna was undisputedly the initial aggressor because he pointed a loaded weapon at a naked detainee during an unauthorized interrogation. Under the law, an initial aggressor only regains the right to self-defense if the victim escalates the force or the aggressor withdraws. The Court held that a naked, unarmed man cannot 'escalate' force against a soldier wielding a loaded firearm. Since Behenna did not withdraw, self-defense was never a valid legal option, making the jury instruction regarding it irrelevant. Similarly, regarding the Brady claim, the Court held that the undisclosed expert opinion was immaterial. Even if the expert confirmed Mansur was standing (supporting the theory that he reached for the gun), it would not change the legal reality that Behenna was the aggressor who had forfeited his right to self-defense.
Dissent - Senior Judge Effron
Yes, the confusing instructions deprived the Appellant of a fair trial, and the failure to disclose evidence was prejudicial. The dissent argued that whether Behenna acted in self-defense was a factual question for the jury members, not a legal question for the appellate court to decide retroactively. Judge Effron contended that the jury should have been properly instructed to decide if the interrogation constituted the use of deadly force or if Mansur's actions constituted an escalation. Furthermore, the dissent argued that the government's failure to disclose their expert's opinion—which supported the defense's timeline of events—was significant because it came from a government source, which would have carried weight with the jury.
Analysis:
This case clarifies the strict boundaries of self-defense in military and criminal contexts, specifically regarding 'initial aggressors.' The ruling establishes that pointing a lethal weapon at an unarmed person constitutes deadly force, making the pointer an initial aggressor who essentially forfeits self-defense claims unless they attempt to withdraw. The court refused to allow the 'escalation' exception to apply where the victim is unarmed and the aggressor is armed, effectively ruling that an unarmed person cannot escalate a conflict initiated by deadly force. Legally, this reinforces the 'Harmless Error' doctrine: even if a judge gives bad instructions, the conviction stands if the defendant wasn't entitled to that specific defense argument in the first place.
