I went to the Behenna oral argument at ACCA this morning. As expected, it was a full house with plenty of family and family friends, congressional staffers (this case has generated high-level interest in the Sooner State), uniformed appellate lawyers, media, and random interested observers. I even caught a glimpse of the trial judge in the LTC Lakin case.
ACCA’s Panel 4, which consisted of Judges Tozzi, Sims, and Gallagher, will decide the case. Veteran military attorney Jack Zimmermann, now a civilian defense attorney, argued the case for LT Behenna, while Captain Madeline Yanford argued on behalf of the government. Not surprisingly, both were polished and ready for the panel’s questions.
Zimmermann began his argument by asking whether Ali Mansur, the deceased, was standing or sitting when LT Behenna fired the shots, calling this critical information because it goes to the issue of escalation of force as it relates to self-defense. Yanford countered by stating that it didn’t matter what the victim’s position was—Behenna had no justification for killing him.
All three judges were particularly “hot” during Zimmermann’s argument. Tozzi, the senior judge on the panel, asked the first question. It concerned when the defense believed the trial counsel’s duty to disclose government expert Dr. MacDonell’s theory arose. The response was on Wednesday afternoon when the initial demonstration was done, or, at the latest, on Thursday, after the accused testified consistently with MacDonell’s theory. This prompted additional questions from Judges Sims and Gallagher, Sims verifying that the government’s expert consultant had said on Wednesday that his theory of Mansur rising from the rock that fit the evidence was an unlikely scenario. Gallagher clarified that none of the experts were able to definitively state where Mansur’s right arm was at the time of the shooting, but it was not at his side.
Zimmermann next addressed the allegations of errors by the military judge, after first stating that Colonel Dixon was a good judge. Zimmermann began with the argument that Dixon’s finding that MacDonell didn’t tell the trial counsel “that’s what I told you” after Behenna’s testimony was a clearly erroneous ruling. Given the unique Article 66, UCMJ, factfinding powers ACCA has, it could overturn the judge’s factual determination of the matter.

Next, Judge Tozzi turned to the issue of prejudice, presuming for the moment that there was a Brady discovery violation in that the trial counsel should have turned over MacDonell’s conclusions earlier.

At that point, the argument turned to the use of deadly force and escalation of force, with the judges focusing on whether Mansur had a right to use equal force in self-defense when threatened with deadly force (weapon pointed at him) by Behenna. Given the amount of force Behenna showed, the assertion from the judges was that there was no room for Mansur to escalate the level of force such that Behenna could reclaim a right to use deadly force in self-defense after using unjustified force resulting in an assault on Mansur by threatening to kill Mansur while the accused had his weapon drawn. Zimmermann responded that there was no need for escalation of force on Mansur’s part if Behenna hadn’t lost the right to self-defense in the first place. During the government’s argument, Tozzi asked why the military judge instructed on regaining the right to self-defense if it was so clear that Behenna didn’t have such a right. I had to smile when Judge Sims conceded “This is confusing stuff” when discussing the self-defense instruction.
The issue of having a right to self-defense was a key part of both arguments, with the defense arguing that the judge had muddled up the oral (members asked for written instruction, but request was denied) instruction regarding requirements of being able to claim self-defense all along or reclaim it after the accused’s committing an earlier assault, while the government countered that, under an objective standard, there was no reasonable fear that Behenna, in full body armor with 2 weapons, could be in danger at the hands of Mansur, who had been stripped naked (except for flip-flops) and had no weapon other than, arguably, a rock.
One judge was visibly skeptical of the defense argument that Behenna feared for his life before he shot Mansur, and there was discussion as to what role, if any, Behenna’s subjective belief that Mansur was a terrorist who had killed 2 of Behenna’s fellow soldiers and Behenna’s diagnosis with a precursor to post-traumatic stress disorder (making him hypervigilant and prone to an exaggerated startle reflex).
Zimmermann also argued that the military judge erred in failing to sua sponte instruct on the lesser-included offense of involuntary manslaughter because it the evidence clearly raised this possibility, to which Gallagher inquired why none of the counsel requested such an instruction at trial if it was so clear. The defense also took issue with various definitions the military judge gave, as well as whether certain matters should have been decided by the members, rather than the military judge.
The panel allowed Zimmermann to complete his explanation as to the harm done by the alleged discovery violations, although his time had expired, a relatively routine accommodation. MacDonell’s potential testimony was either exculpatory in corroborating Behenna’s testimony or it was mitigating in ensuring that the members did not view the shooting as an execution, the defense argued.
The panel was noticeably less active during Yanford’s argument. In fact, Judge Gallagher did not ask a single question until Yanford was wrapping up. Yanford started strong and stayed strong, beginning by contrasting the images of the 2 men—an Army Ranger in full battle-rattle with an M4 and a glock takes Mansur to a remote desert location, strips him naked, and threatens to kill him before following through on the threat by pulling the trigger twice.
The government argued there was no Brady violation, despite the judges making the case that MacDonell’s conclusions regarding the evidence were material to the defense theory because MacDonell’s testimony would be “inadmissible human lie detector” evidence. Judge Tozzi picked up on the distinction between admissibility of evidence and evidence that is discoverable (discoverable evidence covering a much broader range of facts) and the notion that Dixon didn’t fully address that in his ruling. The appellate government counsel also found no error in the military judge’s instruction on self-defense or his failure to instruct on involuntary manslaughter, and the government believed that Behenna admitted to assaulting Mansur before the shooting by violating various rules. Yanford argued that the panel could find there was no initial assault while still finding the killing unjustified because Behenna didn’t have a reasonable fear, and he set up the scenario that might have inspired any fear he experienced.
The government advocated using an “abuse of discretion” standard in deciding whether the military judge erred in denying the motions for mistrial and a new trial, while the defense asserted that the proper standard of review was de novo. Of course, it’s no surprise that it’s difficult (albeit not impossible) to find that a trial judge stepped outside his wide latitude in making a ruling even if the appellate judges themselves might not make the same rulings, and it’s much better for the defense in this case if the panel takes a whole new look at the evidence and draws its own conclusions. Zimmerman also emphasized the standard of review for the discovery violations required the government to prove the violations were harmless beyond a reasonable doubt—a tough standard if the panel finds a violation—because the defense had made a specific request for the evidence.
On rebuttal, the judges inquired whether Zimmermann (the trial defense counsel) had done all he needed to do in order to ferret out MacDonell’s assessment of the evidence. In his ruling, the military judge found that Zimmermann had adequately performed, and Zimmermann admitted the conviction would be invalid for ineffective assistance of counsel if he hadn’t done so.

In conclusion, Zimmermann argued that the trial court and ACCA each have no evidence of the trial counsel’s mindset. The motions for mistrial and new trial only contained MacDonell’s testimony, with no government evidence contradicting his assertions.

It will be interesting to see how this decision comes out.