Non-judicial Punishment

Article 15, Non-Judicial Punishment

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Article 15, also referred to as non-judicial punishment (NJP), is a form of disciplinary action that can be taken upon those service members accused of minor offenses. This will depend upon the nature and gravity of the offense and is under the sole discretion of the commanding officer as to whether non-judicial punishment will be used or a case will go to a court-martial. If you have been accused of a minor offense, you will likely face non-judicial punishment as covered under Article 15. If you have been accused of a crime such as assault, rape, robbery, or murder, you will most likely face a court-martial.

Nashville Military Attorney James Phillips is experienced with Article 15s and successful strategies to ensure they do not go to court-martial or include excessive punishment. As a service member, you have the right to have representation at your Article 15 hearing. You can work with a military attorney who can present evidence and witness testimony to your commanding officer, possibly getting your charges dropped or keeping your penalties to a minimum.

Behenna Mistrial Denied

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.

Behenna’s Verdict

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.

SSG Mitch Warner Update (Alleged Detainee Abuse)

I am the lead counsel in US v. Warner. I am a military lawyer and nothing in this blog is meant to be construed as developing an attorney-client relationship between me and you.  If you want me to be your lawyer, contact either –www.jamesphillipslaw.com and www.ucmjlawyer.com.  Also, this update is written with the permission of my client SSG Mitch Warner.  He has consented to waive any attorney-client privilege to help clear his name.

As a military defense counsel, any time you go to trial there is a wide array of emotions.  Today was one of those days.  SSG Mitch Warner was sentenced by Judge Theodore E. Dixon at Fort Campbell, Kentucky to 17 months of confinement, reduction to E-1, and a Bad Conduct Discharge.  He was found guilty, based on his own pleas to charges of Assault Consummated by Battery, False Official Statement and Maltreatment.  Three charges were dismissed by the Government prosecutors: premeditated murder, obstruction of justice, and accessory after-the-fact.

The charges that were dismissed were more significant than the charges that what SSG Warner plead guilty to.  The press has continually pointed their finger at SSG Warner as though he was a co-conspirator with 1LT Behenna in planning to kill the Iraqi detainee in this case.  There is nothing farther from the truth.  SSG Warner had no knowledge that the detainee Ali Mansur was going to be killed on 16 May 2009.  He had no intention of killing Ali Mansur.  He did not want Ali Mansur dead.

The sentencing case offered problems for both the defense and the prosecution of SSG Warner’s case. SSG Warner is a great soldier and an infantry Non-Commissioned Officer.  He served in Iraq multiple times.  At the sentencing hearing,  one of the Sergeants that served with him in Iraq described how he and SSG Warner had come under fire when an IED exploded on the vehicle that they were in.  SSG Warner and SSG Seal had to pull out one of the soldiers in the vehicle who had been mortally wounded by the IED.  In the process of pulling the soldier out of the vehicle, her arm fell off.  SSG Warner was able to set up a landing zone for the choppers to come in and medivac soldiers.  He was wounded in the incident and continued to help his wounded comrades.

1LT Michael Behenna will go on trial next week for the charged offense of premeditated murder.  He is represented by a very capable civilian attorney, Jack Zimmerman, out of Texas.  They will have to deal with many of the same issues the we had to deal with in US v. Warner.

Ali Mansur, the Iraqi that was maltreated near COB Speicher, was killed in Iraq last May.  Ali Mansur was allegedly murder by 1LT Behenna. He was a suspected member of Al Qeada.  The members of 5th platoon believed that Ali Mansur was the chief financier in the killing of several members of 5th platoon.  Members of the platoon, to include SSG Warner and 1LT Behenna captured Ali Mansur after an IED exploded that killed the members of 5th platoon. There was intelligence to indicate that Ali Mansur was involved in the killing and after he was detained by 5th platoon, he was processed into the detention facility.

Unfortunately, the Chain of Command in this case decided to release Ali Mansur and they had 5th platoon release him back into the civilian population.  Ali Mansur never made it back to the village.  He was stripped naked in the desert and shot.  The allegation against 1LT Behenna is that he shot Ali Mansur point blank.

SSG Warner was in the wrong place at the wrong time.   1LT Behenna is accused of leading Ali Mansur into the desert and shooting him point blank.  SSG Warner, unfortunately, believed that they would humiliate Ali Mansur and make him walk back to his home naked.  This is the offense maltreatment offense SSG Warner plead guilty.  SSG Warner did not have any knowledge that Ali Mansur would be shot and killed.

As an NCO, SSG Warner should probably have stopped his 1LT.  He had a duty to uphold the Army values and he has admitted that he didn’t do that.  For the defense and SSG Warner, it is a victory that the charges of premeditated murder, accessory after-the-fact and obstruction of justice were dismissed.  This properly reflects the fact that SSG Warner did not have any responsibility for the death of Ali Mansur.

Ultimately, this case highlights a disturbing issue.  With so many deployments, soldiers like SSG Warner can make mistakes in the combat zone.  It has become increasingly hard to distinguish enemy combatants from civilians.  Ali Mansur had a questionable status and was being investigated for possible involvement in killing US soldiers.  SSG Warner has served our country loyally and made a mistake.  Today, the Army lost a great combat soldier.