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By Jack Minor
A government lawyer has told an appeals court that a police officer pointing a gun at a suspect would have no right to self-defense if attacked.
The shocker came in arguments before the United States Court of Appeals for the Armed Forces, the CAAF, during a hearing for 1st Lt. Michael Behenna, who was convicted of murder after shooting a known terrorist in Iraq who attempted to grab his weapon during an interrogation.
Vicki Behenna, an assistant district attorney and Michael’s mother, said it was evident during the hearing this week the judges were very knowledgeable about the case.
“It’s always hard to know what they are thinking, but I think they seemed sympathetic to Michael’s case,” she said. “I believe they were very fair during the hearing and well informed on the case. This leads me to believe that Michael will get a fair review.”
CAAF is a civilian court that oversees the military court system and is supposed to be completely free from all military influence.
Jack Zimmerman, Behenna’s attorney, argued the court should overturn Michael’s 15-year sentence based on several key errors made by the judge and prosecutors.
During the CAAF hearing, the judges appeared skeptical of claims by the government that Behenna had no right to self-defense against Ali Mansur, who lunged at him in an attempt to grab his weapon.
The prosecution had argued that Behenna lost the right to self-defense the instant he pointed his weapon at Mansur and that his only option was to move “away from the victim into the vast expanse of the desert” because it was an unlawful interrogation.
During the hearing, one of the judges questioned this assertion by the government, noting that the same standard would apply in law-enforcement.
“So the government’s view is that if a police officer misunderstands the law and is conducting an interrogation with a weapon, than the police officer has no right to defend himself if the person being interrogated then jumps the officer,” the judge asked. “He has to just sit there and take whatever happens?”
The government lawyer hesitated for several seconds and then said, “Yes, your honor. When a police officer does something unlawful like that, they lose the right to self-defense.”
The judges also indicated they had concerns over what they felt were confusing instructions given to the jury. One noted the jury’s instructions listed two different standards that had to be met to render a guilty verdict, reasonable doubt and not beyond a reasonable doubt.
The judges were concerned the double negative could have been confusing to the jury.
Defending the instructions, the prosecution proceeded to give the judges a lesson in the English language.
“When you read and tear apart the sentence structure of the military judge’s instruction you can see he is stating if you have reasonable doubt that [Behenna] assaulted Ali Mansour, you have to be convinced beyond a reasonable doubt that Mansur escalated the level of force. … When you are looking at the double negatives in this case and you take out the two ‘nots’… that is how traditionally in the English language we look at double negatives.”
“Isn’t that awfully confusing? I read the instruction four times and it is very confusing. I’m a judge of this court. If I’m Capt. ‘X’ and I’m on this panel and I hear this thing and I don’t have it in front of me in writing what am I supposed to do,” one of the judges asked. “Sure the judges broad discretion in framing instruction but he’s got to frame instructions that are accurate and understandable.”
The court also seemed to be concerned over actions taken by the prosecution regarding statements by their own expert witness that contradicted their scenario of events.
During the trial, Dr. Herbert MacDonell stated the evidence indicated that Mansur was actually standing and reaching for Behenna’s gun when he was shot. MacDonell has over 50 years of experience in forensic science and participated in investigations of the Martin Luther King Jr. and Sen. Robert Kennedy assassinations and also testified in the O.J. Simpson murder case.
The following day, Behenna told the jury that, while interrogating Mansur, he turned back to talk to the interpreter. At that time Mansur, who was only three to four feet away, lunged for Behenna’s gun. The explanation was identical to what MacDonell told prosecutors the evening before.
During a brief recess, MacDonell met with the prosecutors and said the evidence indicated “Michael must be telling the truth,” and in the interest of justice they should put him on the stand.
The prosecution team then told him his services were no longer needed and he would be flown home that night. As he left the courtroom he told Zimmerman that he would be a great witness for Behenna. He stated he could not elaborate as he was still an expert witness for the government but told them to ask the prosecutors.
The following day Zimmerman asked the prosecutors if they had any exculpatory evidence that should be provided to them. The prosecution said they did not.
Following Behenna’s conviction, but prior to the sentencing, MacDonell submitted an email to the prosecution expressing his concern over not being able to testify.
He said, “As I demonstrated to you and to the other two prosecutors, Dr. Berg, Sgt. McCaulley and Sgt. Rogers, from the evidence I feel that Ali Mansur had to have been shot in his 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.”
MacDonell continued, “Admittedly, this would be an amazing coincidence, however, it fits the facts and … I cannot 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 9 mm flattened out bullet which was tumbling… When I heard Lt. Michael Behenna testify [Thursday] as to the circumstances of how the two 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 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.”
Following receipt of the email, one of the prosecutors revealed its contents to the court. Despite the revelation, the judge refused defense requests for a mistrial.
The government told the CAAF judges that MacDonell’s testimony would not have been favorable to the defense because he “contradicts himself” and was always mentioning there were alternate theories for the shooting.
“He kept saying there were always other possibilities.”
However, the judges corrected the prosecutor, noting the trial judge indicated the information was favorable to the defense. They also expressed concern indicating the prosecutors should have disclosed the information and let the jury decide.
When asked about the timeliness of disclosing the information, the government told the court that MacDonell’s statement to the defense amounted to sufficient disclosure to the defense.
Zimmerman said the idea that defense would know what MacDonald was talking about when he said he would be a good witness for them when they had no previous conversation with him about that issue is “ludicrous.”
A decision isn’t expected for several weeks.
Behenna, 28, an Army Ranger, is imprisoned at Ft. Leavenworth.
Behenna’s supporters have released a music video in support of the soldier. It was recorded by the Chad Evan Todd band: