Jenner & Block

Firm’s Amicus Brief Urges Review of Case of Service Member Appealing Murder Conviction

Jenner & Block filed an amicus brief in the United States Supreme Court in the case of Michael Behenna v. United States.  The brief was filed on behalf of the National Association of Criminal Defense Lawyers, the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing.

The case presents the question of whether a military service member in a combat zone categorically forfeits the right to self-defense by pointing a firearm without authorization at a suspected enemy.   The Petitioner, Army First Lieutenant Michael Behenna, was serving as a platoon leader in Iraq when an insurgent attack with an improvised explosive device ripped through his patrol, killing two soldiers and three Iraqi civilians.  Lieutenant Behenna interrogated a suspected insurgent linked to the attack by intelligence reports.  In the course of the interrogation, a struggle ensued, and the suspect was shot.  A court-martial panel barred Lieutenant Behenna from arguing that he acted in self-defense because he conducted the interrogation “without authority.”  As a result, the panel found Lieutenant Behenna guilty of unpremeditated murder and sentenced him to dismissal and 20 years of confinement.  After the Court of Appeals for the Armed Forces affirmed that Lieutenant Behenna forfeited his right to act in self-defense as a matter of law, Lieutenant Behenna  petitioned for the Supreme Court to hear his appeal.

Jenner & Block’s brief argues that the Supreme Court should agree to hear Lieutenant Behenna’s appeal.  The brief urges the Supreme Court to exercise a more aggressive supervisory role over military convictions for several reasons.  First, unlike in the civilian context, where habeas corpus review has expanded over the last 70 years, collateral review of criminal convictions is severely limited to whether the military court gave “full and fair consideration” to the defendant’s constitutional claims.  Second, Congress has explicitly indicated its desire for the Court to exercise a more aggressive supervisory role over military convictions, unlike in the civilian context where Congress has transformed the Court’s docket from one featuring a high number of mandatory appeals to one in which almost all of the Court’s jurisdiction is discretionary.  Accordingly, the brief argues that while the Court is certainly not bound to exercise certiorari jurisdiction over military appeals in any or even most cases, the Court is meant to—and should—play a different and more active role in reviewing direct appeals from the military justice system.  Because Lieutenant Behenna’s case presents a very significant question concerning service members’ right to self-defense in combat zones, the brief urges the Court to hear Lieutenant Behenna’s appeal.

The brief was authored by Partner Lindsay C. Harrison with assistance from Senior Paralegal Cheryl L. Olson.