Investigating Officer

The Myth about TDS *maybe*

/ James Phillips / 3 Comments

I (www.jamesphillipslaw.com) spent some time in the Trial Defense Services (TDS) at Fort Campbell, KY.  During my time at TDS, I learned a lot about military defense work. But as a TDS attorney, I was always offended by the perception that being a government attorney, I was simply a government hack doing the will of the chain of command.

To this day, I am always surprised at this perception of TDS.  As a civilian military defense counsel, I frequently get hired by Soldier clients who are concerned that their TDS attorney will not represent them with full vigor because they believe the TDS attorney is an agent of the government.  I never believed this and have always argued that TDS attorneys are very good at what they do.

Yet, I do know where this belief comes from.  I had a client that was extremely difficult to deal with.  She was not able to deal with the Army and probably should have been discharged long before we went to a Court Martial.  Her charges were relatively minor, consisting of FTRs and failures to to properly follow the will of her superiors.  Her TDS attorney, who was on the case before I was, at one point clearly decided that he agreed with the Chain of Command and he began to do things that helped them with their case.  In fact, he was later called as a witness against her at trial, and luckily for him and his license, he was not to be found.

The problem for this TDS attorney was that he had lost perspective.  He was on his way out of TDS.  He had spent almost three years as a defense attorney and had many victories on his mantle.  But, at the point he began to represent my client, he was already reassigned as a brigade trial counsel.  Unable to see the inherent conflict of interest, he was worried about sending the wrong message to the chain of command, so he began helping them with their case against my client.

This is the flaw with TDS.  Although they are insulated against the chain of command for most of their time as TDS attorneys, they are open to undue influence at certain times in their career.  One of those times is when they are moving back and forth between TDS and their regular units. For most of a JAG attorneys career he will be working for the US government.  Most TDS attorneys only spend a relatively short period of time as pure defense attorneys.  Seeing their attorneys as prosecutors later, causes many Soldiers to question the defense that they received at the hands of TDS.

This perception is a problem.  The military system of justice is frequently questioned as being unfair.  The military should do all that they can to destroy this perception.

Behenna Mistrial Denied

/ James Phillips / 2 Comments

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.

SSG Warner heads home

/ James Phillips / 2 Comments

I (www.jamesphillipslaw.com) spoke to SSG Mitch Warner’s family on Monday morning.  They solidly stand behind Mitch and are now beginning to gather the evidence required for us to put on an appeal for SSG Warner.  In speaking to them, they spoke of their disappointment with the US Army and the decision-making that lead to the death of detainee Ali Mansur by LT Behenna.

SSG Warner is now headed to Fort Sill, OK, where he will serve the balance of his seventeen month sentence.  He will be close to home and at least he will finally be finished with his combat tours.

One of the questions taht I have never gotten an answer for in this case is Why did LT Behenna’s higher headquarters and unit release Ali Mansur to 5th platoon?  This seemed extremely odd to me.  5th platoon had lost soldiers and had several wounded just a couple weeks prior.  Ali Mansur was a suspect in those killings and that IED attack.  5th platoon had gone out and picked Ali Mansur and took him into the detainee detention facility as a suspect in the death of the soldiers.

So, why in the world, when the higher ups had decided that Ali Mansur had no information and couldn’t be held for the attack, did the chain of command use the same platoon that picked him up as a suspected terrorist to drop him off to the local population?  There are no good answers.  One answer would be that the Chain of Command wanted LT Behenna to have someone kill Ali Mansur.  If there was a deliberate and conscious knowledge of Ali Mansur’s alleged AQI association, the COC may have thought that LT Behenna would find a way to have Ali Mansur killed.  They could have dropped him off with those Iraqis that wanted him dead.  They could have faked an incident or escape.  The expectation may have been that 5th platoon would find a way to get the job done.

But, I am not much of a conspiracy theorist.  The more likely answer is that this was just stupid negligence.  The Chain of Command should have known that there would be an issue with the drop off of this detainee, but they were just too busy or distracted to think of the clear implications of this drop off.

Either way, this was an event that should have been avoided.  The command had a responsibility to know that soldiers that have been under attack and have suspected terrorist in detention for those attacks are not the soldiers that should drop that detainee off to the local populace.  This is a no brainer.

SSG Warner and LT Behenna are now both serving time for a death of a detainee.  The trials of both men were complicated by the fact that they each knew that Ali Mansur was a suspected AQI member.  LT Behenna did have justification for the killing, but it probably wasn’t the justification that the US Army wants to hear.  Regardless, this whole event should have been stopped before it ever got started.  Another platoon should have done the drop off.  The blame for the shots being fired can be laid at LT Behenna’s feet, but the death of Ali Mansur and the conviction of two US Infantrymen can be laid at the feet of the chain of command. 

Behenna’s Verdict

/ James Phillips / 12 Comments

I (www.jamesphillipslaw.com) was not able to be at Fort Campbell to hear the members read the verdict in US v. Behenna.  My co-counsel in US v. Warner and I had made a few predictions about what we thought the verdict might be.  We both thought since the verdict of guilt had been a compromised verdict and the panel had not convicted LT Behenna of premeditated murder that the panel was looking for a way out of having to sentence LT Behenna to a lot of jail time.  My co-counsel thought the panel would give LT Behenna seven years of confinement.  I thought they would give him twelve years.  We were both wrong. The military panel sentenced LT Behenna to twenty five years of confinement.

I tend to have faith in juries and military panels to make right decisions.  I was surprised that the sentence was so high.  Despite the evidence that Ali Mansur was possibly a member of Al Queada and had involvement in the death of several of LT Behenna’s men, the panel made up of relatively younger officers decided to sentence LT Behenna to a sentence that was appropriate for murder.  They did not back away from the nuances of the case, but instead voted for what they saw.  This sentence shows that they considered the death of Ali Mansur to be a major crime.

In representing SSG Warner, we had considered taking our case to trial.  Since our client was not guilty of premeditated murder or accessory after the fact, this very well could have happened we not be able to come to an agreement with the Government. But, in going to trial, one of our concerns in representing SSG Warner was that the panel may look at the pictures of Ali Mansur’s dead burnt body and not be able to excuse the actions of our client.  We were concerned that looking at the horror of a killing the panel would want to assign blame and we did not want them to mistakenly assign it to our client.  We also didn’t want the panel to sentence our client because they may assign too much culpability.

Jack Zimmerman, Behenna’s lead counsel, was probably concerned about many of the same issues.  In his case, that appears to be what has taken place.  The military panel did not buy the repeated references to Ali Mansur being a “terrorist” and a “bad” man.  There was certainly evidence that this is exactly what he was, but there was also evidence that at the time he was shot, he was naked, in the control of LT Behenna and pleading for his life.

In the end, the panel had to decide whether or not LT Behenna had shot a human being point blank in the forehead or whether or not this was “just an Iraqi.”  The tempation for the defense is to say that this is just an Iraqi.  Who cares?  How many times has an Iraqi been killed in one combat operation or another?

In this case, the Iraqi was under the care and control of the US forces.  As CPT  Poirier, the lead prosecutor in our case, said in her closing argument in US v. Warner, this is the type of crime that requires that “we” send a message to soldiers not to commit these types of battlefield attorcities.  Now, in our case, I believed that she was wrongfully characterizing our client’s conduct, but the point was made nonetheless. Soldiers must follow the rules regardless of their personal vendettas.

In LT Behenna’s case, the panel seemed to send a message that officers cannot decide for themselves how they are going to distribute justice.  If we as a nation are going to occupy and administer justice in Iraq, then we will require our officers to follow the law.  No matter whether you agree with the panel’s decision to heavily sentence LT Behenna or not, there is certainly a requirement that we not lead Iraqi citizens into the desert, strip them naked and then shoot them point blank in the forehead.  The panel has sent that message loud and clear with a twenty five year sentence.

Of course, both US v. Warner and US v. Behenna will continue to play out through the appeal process and to some lesser extent in the media.  Jack Zimmerman and the defense in US v. Behenna have filed a motion for a mistrial, but based on this verdict from this panel, they may want to watch out what they ask for.  This panel looked like the best bet for a jury nullification.  Young officers, with relatively junior rank for a military panel, who were probably fairly independent, and yet in the end, they sentenced Behenna to 25 years.  A more senior officer panel may have given him more time.

Day Three LT Behenna Trial

/ James Phillips / 1 Comment

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.

Update on LT Behenna Trial

/ James Phillips / 1 Comment

I (www.jamesphillipslaw.com) was at Fort Campbell today and watched a portion of US v. Behenna.  The prosecution is three quarters of the way through their case.  The case so far has consisted of laying the foundations for proving the murder. The case seems strong, but the defense has yet to present their evidence and that will probably not begin until early Thursday morning. 

The panel members (or the civilian equivalent to a military jury) were fully engaged and very attentive today.   1LT Behenna’s panel consists of seven officers on the panel.  One woman and six  men have been selected for Behenna’s panel.  Four members of the panel are captains.  The other three are field grade officers.  A majority of the panel appears to have combat experience.

The prosecution will present the meat of their case tomorrow.  “Harry” the interpretor, who was with 1LT Behenna at the time of Ali Mansur’s death, is expected to testify.  He is expected to testify to witnessing Ali Mansur getting shot.  Strange as it may seem, if “Harry” follows his pattern from the Article 32 hearing, he will testify as the interpretor through an interpretor.  After “Harry” is done testifying, SSG Mitch Warner is expected to be the final witness in the prosecutions case.  He will also testify as an eye witness to the events that took place in the desert.

Jack Zimmerman, the civilian defense counsel for 1LT Behenna, vigorously fought any characterization of Ali Mansur’s death with the words “homicide” and “crime” today.  His defense team lodged several objections to the prosecutions characterizations of the death with any words that resembled a crime.  The argument may have seemed to be one of semantics to the panel, but the defense clearly was sending a message with the objections that they were objecting to the prosecutions entire case.  They are trying to focus the panel on the idea that this may have been a lawful killing.  They also do not want to have the panel  prejudge Behenna prior to them being able to put on their defense.

The defense will begin presenting evidence probably this Thursday.  They will probably follow up with their promises made during opening arguments, which will mean that they will put evidence on that will demonstrate that 1LT Behenna was not thinking clearly at the time of the killing.  They will also probably put on evidence showing that Ali Mansur may have been a suspected terrorist.

CPT Johnston, 1LT Behenna’s acting commander during the investigation, testified today regarding his preliminary investigation into the death of Ali Mansur. After his testimony, the panel presented the military judge with several written questions.  The questions presented by the panel were very thoughtful and seemed defense oriented.

The prosecution brought several witnesses to testify from Iraq.  The Iraqis testified through an interpretor. 

There were several journalists in the audience, but overall, the case has not drawn the media attention it probably deserves.

The Premeditated Murder Trial of 1LT Michael Behenna

/ James Phillips / 1 Comment

1LT Michael Behenna is scheduled to go to trial for premeditated murder on 23 February 2009.  This trial will take place at Fort Campbell and Judge Theodore E. Dickson will preside. A panel (or jury) of officers will consider the evidence presented by the Government. The first day of the trial will probably consist of panel selection and possibly opening Arguments.  There are good lawyers on both sides of the fence in this case.  Mr. Jack Zimmeran, a civilian defense counse out of Texas, is an extremely competent and experienced attorney, who is  representing 1LT Behenna.  He is being assisted by two appointed Trial Defense Attorneys from Iraq and his civilian co-counsel. On the other side, the Government has a capable team of prosecutors consisting of CPT Megan Poirier, CPT Erwin Roberts and CPT Elbert.  CPT Poirier has lead the charge on this case since the facts began to develop in Iraq in June and July of last year.

1LT Behenna is being tried for the premeditated murder of Ali Mansur.  Ali Mansur was a detainee that was scheduled to be released by 1LT Behenna’s platoon on 16 May 2009.  Subsequently, Ali Mansur’s burnt naked body was found in the desert. 

The trial should take about a week.  Evidence presented will consist of Iraqi witnesses brought from Iraq to testify.  Members of the platoon who were there the night the events took place.  Expert witnesses to testify to the validity and interpetation of the scientific evidence.

The 101st has had several of these kinds of cases over the last few years.  Notable, 2nd Brigade of the 101st had a series of detainee death cases several years ago, but these cases were different in that facts did not immediately come to light and at least one of the soldiers involved had ended his term of service prior to be charged with the offenses.

Summary Court Martial- A Fair Process? Or Foregone Conclusion?

/ James Phillips / 9 Comments

Yesterday, I represented a soldier in a Summary Court Martial at Fort Campbell.  www.jamesphillipslaw.com or www.ucmjlawyer.com. Or, self help legal (invisiblelawyer.com).

His parents had hired me to represent him in the Summary Court Martial because they were concerned that he might be railroaded by his Chain of Command. His parents had good reason to worry.  Summary Court Martial (SCM) are dangerous business for the soldier.

An SCM begins when charges are preferred against a soldier.  What this means is that the soldier is dragged into the Commander’s office, read the charges, and told he will have 72 hours to get ready.  At the preferral, the soldier may be able to look at the packet of information, the allied papers, which will be considered as evidence against him. At some point within the next day or so, the soldier will be hustled over to the Trial Defense Service (TDS) to go over the SCM rights.  At his appointment with either a TDS attorney or paralegal, the soldier will be given a TDS information packet that will describe the basic rights he has at the SCM.  The TDS attorney will spend a few minutes talking to the attorneysoldier, answering a few basic questions and then he will be sent on his way and back to the command.  Since TDS is normally too busy to represent soldiers at SCMs, the soldier will have to go it alone.  The soldier does have the right to hire civilian defense counsel at his or her own expense.  Normally, this doesn’t happen, so the soldier, who has neither the rank nor authority, will be expected to stand up and defend themselves, without counsel, in front of a SCM Officer at what will essentially be a closed door and hidden proceeding. The SCM Officer, usually a captain, will have little to no legal training and will see this as a glorified Article 15, where the real issue is not guilt or innocence, (the soldier is guilty because he is at a SCM) but how much punishment needs to be inflicted on the soldier.

If the soldier does not hire a civillian defense counsel, at trial, the SCM Officer will read from a script.  They will review a packet of information (the allied papers) given to them by the brigade legal and after quickly running through a script with the accused soldier the SCM Officer will convict the solider and max him out according to whatever is the desire of the command.  Most of the evidence that will have been considered will be hearsay, or inadmissible and not competent for Trial.  The soldier will have been intimidated by the Summary Court Officer, convicted on incompetent evidence and have an overall feeling that the entire process is utterly and completely unfair.  The soldier will be right.

The problem is that this is not what the Army intended an SCM to be.  The SCM was created to take pressure off of the military judges and the military courts by allowing a lower level proceeding, that would still afford the soldier all of his basic rights.  At an SCM, the same rules apply as at a Special Court Martial or a General Court Martial.  The rules of evidence apply.  The ability to call witnesses at the trial on the merits and on sentencing both apply.  The ability to introduce evidence in defense and mitigation apply.  In the face of this evidence, the SCM Officer has e a duty to act neutrally and only weigh competent  and relevant evidence.  Because all of these legal rights apply, this is one reason that hiring a qualified civilian military defense attorney may be the most crucial decision when deciding whether to object to or consent to a Summary Court Martial.

More than any other military proceeding the civilian defense counsel has the biggest overall effect on a Summary Court Martial.  This is because at a Summary Court Martial the person that is most confused and feeling like a fish out of water is the SCM Officer. As military officers, they have probably never been around a trial or administrative hearing. They do not understand the law.  They do not understand the introduction of evidence and they do not understand the proper way to question a witness on the stand.  All of these things lead allow the civilian defense counsel to help guide both the SCM Officer and the outcome.  The civilian defense counsel in subtle ways can both befriend and harrass the SCM Officer into making a favorable decision for the accused soldier.

If the civilian defense attorney acts appropriately, he will quickly guide the presentation of evidence at Trial.  This is a huge advantage.  This will also give the civilian defense attorney credibility with the SCM Officer.

As an example of this, I had a case where my client had originally been accused of Rape.  He was a Sergeant First Class (E-7) and was accused of sexually assaulting on of his soldier.  I was originally hired to represent him at a General Court Martial. After the Article 32 hearing, the Article 32 officer recommended a lesser charge than Rape and that the referral be at the SCM level.

At the SCM, the proceeding was held in a tiny office.  The SCM officer and I were just a few feet from each other and the atmosphere was very relaxed.  I had been in the Army for 10 years, both enlisted and commissioned time, and have been deployed to Iraq twice.  The SCM officer was an infantry officer and so I began to chat with him until we were able to start swapping stories.  I relaxed him by assuring him that I wasn’t there to cause trouble and I would help him through the entire proceeding.  I also told him before we even began that the Government had done him no favors because all of the evidence in his allied papers would not be allowed into evidence.  I assured him that I wouldn’t make it hard, just would explain the problems as we got to them.

After we opened the trial, the SCM tried to introduce several sworn statements of witnesses.  The witnesses were not called, but were actually deployed at the time, so I explained this was hearsay and couldn’t be considered.  We did this with the DNA report, the rape kit, all of the pertinent evidence.  All of it was excluded as hearsay.  Then when the main accuser was called to testify I asked the SCM Officer if I could do the direct to make it go easier.  He agreed.  I then lead the accuser through direct, but did it from the defense prospective and not from a prosecutorial prospective.  Before closing arguments, I engaged the SCM Officer in a long conversation on what were the problems with the case.  At that point, the SCM threw out the script and decided that my client was not guilty.

The problem is that if my client went in alone he would now be an E-6 and would have lost huge amounts of retirement.  The SCM Officer would have looked at the packet given to him by the Government, and without cross examination or analysis would have just figured that my client was guilty.

For these reasons, any soldier that is considering going to a SCM should also consider consulting and/or hiring a qualified military civilian defense counsel.  Now here is the problem, there are very few attorneys that are qualified to represent soldiers at SCMs.  Make sure that the civilian attorney you consult with knows what he is doing and that he has lots of experience with Court Martials.  Most attorneys will be happy to take your money to represent you, but many don’t have a clue how a military proceeding works.  Civilian state court trial time does not translate well to the military.

These are the things you should find out about the civilian attorney: (1) how many SCMs has he done, (2) can he explain how an SCM works (both perils and positives), (3) can he explain why you should or should not object to trial by SCM, (4) how well does he know military law, and (5) finally, does he seem like someone you will trust and like.  If he meets these qualifications and you think he can help you, you should really consider hiring him before you go it alone at an SCM.