I (www.jamesphillipslaw.com) had another opportunity to go out to watch today’s trial at Fort Campbell in US v. LT Behenna.  Today was in some ways a clear turning point for both the government case and for the defense. 

The government case concluded today with three very strong witnesses.  “Harry” the interpreter testified this morning and through his own interpreter came across as a fairly strong witness.  “Harry” went through the events which took place on 16 May 2009, describing the how 1LT Behenna shot and killed Ali Mansur in the desert outside of FOB Summerall.

Lead defense counsel Jack Zimmerman had a very good methodical cross on “Harry.”  He got Harry to say that Ali Mansur was a “Bad Man” or a “terrorist” numerous times.  He also was able to create a defense opening in the fact that Harry did not see several critical moments during the shooting.

Next, the Government called SSG Seate.  His testimony established that LT Behenna had spoken about the killing in the DFAC sometime later.  The conversation seemed to acknowledge the illegality of the act.  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.

Finally, the government closed with SSG Warner.  I don’t want to comment too much on my client and his testimony other than to say that he was problematic for both the government and the defense.  Based on the questions that were asked by the panel of SSG Warner, they definitely considered much of what he said as substantive, despite Jack Zimmerman’s excellent cross, establishing SSG Warner’s potential biases.  Also, Jack Zimmerman cleverly was able to get SSG Warner to talk about the mandatory minimum of Life Imprisonment without parole for the offense of premeditated murder.  For the defense, this was an opportunity to remind the panel of their heavy burden in this case and to remind them that if they convict LT Behenna he will face the same mandatory minimums.

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.

The defense presented two expert witnesses today.  The first expert witness was a pathologist out of Texas.  Essentially, he tried to establish that Ali Mansur was standing at the time he was hit with the first shot. The second expert witness was a crime scene re-constructionist.  He 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.

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. 

The panel seemed to pick up on CPT Robert’s cross, because their written questions to the expert witnesses were very much concerned which crime scene data was used for the expert opinions.