LT Behenna was convicted and sentenced to 25 years of confinement by a military panel in mid February. The Defense, through Attorney Jack Zimmerman, made a claim that the trial was inherently unfair because a prosecution expert agreed with the defense experts that the forensic evidence suggested that Ali Mansur was probably standing at the time that he was shot. This was the central theme of the defense throughout the trial. That Ali Mansur, although naked, had made a threatening move by standing up before he was shot by LT Behenna. This, combined with the fact that Ali Mansur was a suspected terrorist, should have lead the military panel to find that LT Behenna was legally justified in killing Ali Mansur.
Judge Dickson during the mistrial motion and the military panel during the finding of fact had to weigh the direct testimony of witnesses against the expert testimony. In this case, the experts of both the defense and apparently one from the prosecution were in direct conflict with the eyewitnesses, Harry the interpreter and SSG Mitch Warner. In this case, there may be a reason that there was such a big discrepancy.
When this case was initially investigated, the Iraqi police were not the first on the scene. Members of Ali Mansur’s family and friends initially arrived to inspect the body. They tampered with the evidence, moved the body and moved the forensic evidence. The main police video was taken on a handheld cell phone. The evidence of the grenade fragments were turned over to the the Army’s Criminal Investigation Division by the Iraqi police after they had retrieved them from Ali Mansur’s family. There was literally no chain of custody on much of the evidence. At the Article 32 hearing, the Iraqi Pathologist misidentified Ali Mansur’s body and much of his autopsy seemed questionable. And, finally, SSG Warner’s testimony was not fully explored until less than a week prior to LT Behenna’s trial. Most of the experts, who rely on some eyewitness testimony to recreate their crime scenes, had little or not reliable evidence to work with.
This unreliable evidence, couple with conflicting eyewitness testimony, made it extremely difficult for the military panel to use experts as the basis for their final verdict. Unfortunately for LT Behenna, the military panel was in a position where they had to use their own judgment to determine whether or not to believe the defense’s expert witnesses.
This is why it may be difficult to determine whether or not the prosecution was out of line in not calling their own expert witnesses to the stand after the defense expert witnesses testified that Ali Mansur was probably standing at the time he was shot. This evidence was already before the military panel and was in direct contradiction to the eye witness accounts of what happened. For the purposes of the prosecution, they had a good faith basis to argue that Ali Mansur may not have been standing, unfortunately, this was due to the inept investigation of this case and the crime scene. The Iraqi’s created much of the problem through their inability to secure the crime scene, create a solid chain of custody on all evidence and to properly label and photograph the crime scene. This, in and of itself, may have hurt the defense more than anything else.
Judge Dickson’s recommendation that LT Behenna should have a reduced sentence should probably be appreciated by both the defense and the prosecution in this case. As a Military Judge, Dickson is both experienced and wise. By compromising the verdict, he has recommended a reasonable sentence, in the face of the military panels verdict, and the difficulties in compromised evidence.
Kandu Military Law 
As one who is tangentially connected (friends of relatives) to Lt. Behenna, I appreciate your clear-headed approach to the case.
A question. I completely appreciate the argument that you present for the prosecution not calling or disclosing their expert’s testimony, but isn’t there another reason why any error in failing to disclose the expert’s findings would be harmless error?
I speak of the inappropriateness, in my understanding, of a claim of self-defense under these facts. As I understand the evidence, Lt. Behenna admits he wrongfully placed Mansur in fear of his life. Mansur then, debatably, made a defensive move that Lt. Behenna uses to justify his use of deadly force in self-defense. Isn’t Lt. Behenna precluded from claiming self defense because he himself created the conditions that allegedly caused Mansur to need to defend himself? I’m almost certain that under those facts, self-defense would not be available in a state-law homicide case. Am I wrong?
I write not to defend Mansur as an upright person and certainly not to excuse the chain of command for an incalculably stupid (or intentionally malfeasant) decision in sending Mansur home in Behenna’s hands, but to better understand Judge Dickson’s actions.
I appreciate you comments on the blog. There certainly is an argument that self-defense was not a valid defense in this case. In preparing for our case with SSG Warner, the defense, with the charge of accessory, could rely on any defenses that LT Behenna may have had. I personally did not believe that self-defense was remotely viable. Judge Dickson’s actions seemed to send a message to the GCMA that there was an element of misconduct on the part of prosecution, but that it was not enough to change the verdict. Having watched the trial, I agree. The expert witnesses were not very effective, and, one reason for that, was that the Iraqi police had so tainted the evidence that most of the expert witness testimony was very speculative and honestly, not very helpful to the panel.