In a surprising move, the Court of Appeals of the Armed Forces has put a high-profile case of a soldier convicted of killing a terrorist in Iraq on a fast track, with oral arguments scheduled next month.
Army Ranger 1st Lt. Michael Behenna, 28, whose conviction was affirmed by an intermediate court, is serving a 15-year prison term in Ft. Leavenworth. Oral arguments before the appeals court in Washington, D.C., which are open to the public, will be heard April 23.
The lower court ruling determined that evidence from a prosecution witness that supported Behenna’s defense could be concealed by prosecutors during the course of the trial.
The soldier’s advocates, including his parents, have assembled a support structure for him centering on the Defend Michael website. They say they continue to hold hope that the CAAF will change the outcome after the first two rounds were lost in “a corrupt and outdated military justice system that refused to guarantee one of the most basic rights that Michael and his men fought for – the right to a fair trial.”
Behenna’s legal team filed its brief with the CAAF on Feb. 28.
“We were expecting that it would be some time before oral arguments were set. To our great amazement (and the military’s great frustration) the CAAF has expedited the hearing of oral arguments,” the website said.
“This we hope is the beginning of the end of the injustice which Michael has suffered at the hands of the military justice system – an injustice that as of last week has already imprisoned him at Ft. Leavenworth for three years running.”
An intermediate military appeals court had ruled that evidence that could have changed the outcome the trial can remain unaddressed.
WND has reported on the case for several years. The dispute focuses on the fact that a prosecution witness was prepared to testify that Behenna’s description of the circumstances surrounding the death of Ali Mansur on March 20, 2009, was supported by evidence.
Prosecutors refused to allow him to testify, then refused to tell the defense counsel about the likely exculpatory evidence. Defense attorneys did not find out about it until after the conviction.
Behenna, the son of Oklahomans Scott and Vicki Behenna, was put on trial for Mansur’s death. Mansur had been questioned about an attack that killed members of Behenna’s platoon. Behenna testified he was further questioning Mansur when Mansur lunged for his weapon, and he fired twice, killing the terrorist.
The prosecution argued that Behenna simply executed Mansur while he was seated on a rock. Prosecutors later argued it didn’t matter how the shooting happened, because Behenna didn’t have a right to defend himself from the terrorist.
That left his parents unable to be silent.
“The twisted logic of the [intermediate] appeals court not only agreed with the trial judge, but even introduced language in their ruling that was never even part of the original trial. The substance of this appellate opinion was void of any indication that the facts and issues were really evaluated to a logical legal conclusion,” Behenna’s parents wrote.
Quotes in the appellate opinion that the appellate court used as a basis for its decision “should strike fear in every soldier and Marine serving in a combat zone,” they wrote.
For example, the appeals court said about Behenna’s decision to point a weapon at Mansur, a known al-Qaida member, “If, confronted by this demonstration of deadly force, Ali Mansur, under these circumstances, attempts to turn the very same Glock pistol towards appellant, his assailant, there can be no escalation sufficient legally to excuse Ali Mansur’s killing.”
The Behennas wrote: “By this logic every time a soldier points his gun at anyone, whether at a checkpoint or entering a village, they have assaulted those people by virtue of pointing their gun at them and if someone gets shot then they should be brought up on charges of murder. No consideration is even given that this is a war zone.”
If Mansur stood up and reached for Behenna’s weapon, the appeals ruling said, “There is no evidence that Ali Mansur made contact with the appellant’s weapon. At that point, the appellant (Michael), in full battle armor, with much of his platoon standing nearby, ready to defend him, did not keep moving to the left away from the victim into the vast expanse of desert, did not shout for assistance, but instead shot the victim two times.”
The Behennas argued: “So if a police officer in America has his gun pointed at a known killer and that killer suddenly lunges for his gun the police officer’s only option is to turn and run while yelling for backup? Seriously, who comes up with this nonsense! Unfortunately, the entire appellate opinion was full of this kind of logic.”
Of most serious concern to Behenna’s supporters, however, is that according to the trial documentation, prosecution expert witness Dr. Herbert MacDonell told prosecution attorneys during the trial that based on the evidence he saw, the only logical explanation for Mansur’s death was that he “had to be standing reaching for 1LT Behenna’s gun” when he was shot, in contradiction to the prosecution’s story.
Behenna told the jury while he was interrogating Mansur he turned back to his interpreter and when he did so, Mansur lunged for his gun. Behenna “moved to the left and fired a control pair of shots.”
During a recess, MacDonell met with the prosecution team and told them that what Behenna testified was exactly what he had demonstrated to them the day before. He told them in the interest of justice, he should testify.
“They looked at him coldly and said they no longer needed his services and were flying him home that night. On his way out of the courtroom he tells Jack Zimmerman, defense counsel, that he would have made a great witness for 1LT Behenna,” trial documents report.
Zimmerman then asked the prosecutors about exculpatory evidence – information that would support the defense.
“Prosecutors deny having any such evidence despite having been told by their own expert witness that Lt. Behenna’s explanation was the only logical explanation,” the documents show.
In an email after he was dismissed by prosecutors, MacDonell told them, “I am somewhat concerned that I did not testify and have a chance to inform the court of the only logical explanation for this shooting. As I demonstrated to you and to the two other prosecutors, Dr. Berg, Sgt. McCaulley, and Sgt. Rogers?, from the evidence I feel that Ali Mansur had to have been shot in the chest when he was standing. As he dropped straight down he was shot again at the very instant that his head passed in front of the muzzle. Admittedly, this would be an amazing coincidence, however, it fits the facts and as I told you on Wednesday, it fits the facts and I can not think of a more logical explanation.
“This scenario is consistent with the two shots being close together, consistent with their horizontal trajectory, consistent with the bloodstains on the floor, and consistent with the condition of the 9mm flattened out bullet which was tumbling after leaving Mansur’s head or body.
“On Thursday afternoon when I heard Lt. Michael Behenna testify as to the circumstances of how the shots were fired I could not believe how close it was to the scenario I had described to you on Wednesday. I am sure that had I testified that I would have wanted to give my reenactment so the jury could have had the option of considering how well the defendant’s story fit the physical facts. This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence so I hope that, in the interest of justice, you informed Mr. Zimmerman of my findings. It certainly appears like Brady material to me,” MacDonell had told prosecutors.
Behenna’s supporters also have released a music video in support of the soldier. It was recorded by the Chad Evan Todd band: