Appeal launched for soldier who killed terrorist

Michael Behenna

The long appeal process available through the courts for members of the U.S. military has been launched for an Oklahoma soldier convicted of killing a terrorist and given 25 years in jail.

Word of the development in the case against soldier Michael Behenna, whose case is profiled on the Defend Michael website, comes in an update from his parents, Scott and Vicki Behenna. Vicki Behenna is an Assistant U.S Attorney and previously told WND of her campaign on behalf of her son.

She said her son's defense counselors had sought a new trial because of a statement from a witness for the prosecution that the soldier was telling the truth when he explained the shooting was in self-defense.

The statement, however, was never was presented to the jury, and the defense team didn't even know about it until after the trial.

TRENDING: Nancy Pelosi's election-rigging H.R. 1

The update from the Behennas said, "Although our hope in the general [reviewing the case] granting favorable action was not great, we felt Michael had such a compelling case that relief was just around the corner.

"Unfortunately the sad news came that the general had basically passed the buck. The staff judge advocate (the general's legal counsel and the prosecutors' boss) recommended to the general that Michael serve the full 25 years. This recommendation came even in light of the trial judge's recommendation that Michael's sentence be something less than 18 years," the family's update said.

"The general ultimately reduced Michael's sentence to 20
years, which is a real disappointment," the note said.

"However, the good news is that we can finally move towards his first appeal. We have had so many great legal minds offer their assistance to ensure the appeal is compelling. Michael has said he feels good about the appeal and wishes he did not have to wait the many months it will take until the court hears the case," it said.

According to the website set up to publicize the soldier's plight, the testimony came in a statement from Dr. Herbert Leon MacDonell, who directs the Laboratory for Forensic Science in Corning, N.Y. MacDonell consulted in O.J. Simpson's case and participated in investigations into the assassinations of Sen. Robert F. Kennedy and Martin Luther King Jr.

MacDonell had been called as a witness for the prosecution to describe how the evidence indicated Ali Mansur, suspected of being an al-Qaida operative involved with a fatal attack on Behenna's platoon, was killed.

Prosecutors alleged Behenna ordered Mansur to sit down on a rock and executed him with a shot in the head. Behenna's lawyers explained the soldier fired one shot at Mansur as he had his arms raised and was lunging for the soldier's gun. He fired a second shot that apparently hit Mansur in the head as he fell.

Michael Behenna, the day before leaving for Iraq

RELATED: Making laws Obama's way: 'Lawless process'

In an e-mail obtained by defense counsel after the trial was concluded, MacDonell wrote he was "concerned" he was not allowed to testify "and have a chance to inform the court of the only logical explanation for this shooting."

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.

"Admittedly, this would be an amazing coincidence, however, it fits the facts and … I cannot think of a more logical explanation," he continued.

"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," he wrote.

"This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence," he said.

WND calls to Gates' office and the Army regarding the case were not returned.

But Vicki Behenna told WND her son now is imprisoned in Fort Leavenworth for the death of Mansur.

While she had hoped the case results would be reviewed immediately, she told WND today the appeal process already has been launched.

"We are about 10 months to a year away from the Army Court of Appeals," the family e-mail update said today. "It is important to keep Michael's story alive and his spirits lifted."

She said while the family was hoping for a new trial, the appeal process it the next logical step to pursue.

The website explains how Behenna was deployed to Iraq in September 2007. The next April his platoon was attacked by al-Qaida, and he lost two platoon members and two Iraqi citizens working with him.

On May 5, 2008, "known terrorist Ali Mansur" was detained on suspicion of being involved, but 11 days later, Army Intelligence officers ordered his release. They ordered Behenna to escort Mansur home.

While interrogating him on the way home, Behenna fired two shots and killed Mansur. He explains he had turned to look at an interpreter who was reporting what Mansur said, and when he turned back to Mansur, he was lunging forward with his arms raised.

As the close of the trial approached, defense attorney Jack Zimmerman asked prosecutors if they had exculpatory evidence and was told no, even though MacDonell's concerns had been given to the prosecution a day earlier, the website said.

Behenna's mother told WND it is curious that the U.S. has begun charging soldiers with murder for battlefield deaths of enemy combatants and wonders how such exculpatory evidence as in her son's case could be withheld.

Her work on behalf of her son is natural, but even more important, she told WND, is the concept that prosecutors follow their constitutional and ethical requirements in providing evidence to defense teams that could indicate innocence.

The website asks citizens to contact their members of Congress seeking intervention. The soldier's mother told WND that the logic of the prosecution doesn't line up, because the trajectories of the two shots were horizontal, yet that would be impossible if a soldier was standing over a seated Mansur and shot him. Also, under those circumstances, she wondered how would a second shot enter under the terrorist's arm.

In addition to accepting donations for the private law team working on the case, the website allows participants to sign up on a petition protesting the case.

The petition states that "critical evidence" was withheld by prosecutors, so a new trial is in order for Behenna, who was described by commanding officers as turning in "a remarkable performance as a platoon leader."

While the circumstances are not identical, WND has reported extensively on the politically inspired charges against eight Marines for their fatal firefight with insurgents in Haditha, Iraq, in 2005.

The government recently announced it was giving up on a case against Lt. Col. Jeffrey Chessani, although the entire prosecution still could be relaunched, according to lawyers with the Thomas More Law Center.

The foundation for the case was the fierce house-to-house, room-by-room combat action taken by four of his Marines after being ambushed by insurgents. In the battle, nine insurgents and 15 civilians were killed.

Chessani was the battalion commander of the four Marines involved in the action. Every officer in his chain of command, including his reviewing general, approved and commended him for his actions until the publication of a Time magazine article months later charging the Marines with committing a massacre. The claims have since been proven untrue, the law center said.

A military investigation of the Haditha firefight found "no indication" that the Marines had "intentionally targeted, engaged and killed noncombatants."

Defense lawyers have reported the insurgents deliberately attacked the Marines from hiding places, where they surrounded themselves with civilians to use as shields. They introduced evidence that Chessani's performance repeatedly had been praised by his commanding officers.

Eventually eight Marines were charged, but cases against Lance Cpls. Stephen Tatum and Justin Sharratt, Capts. Randy Stone and Lucas McConnell and Sgt. Sanick P. Dela Cruz were dropped. First Lt. Andrew Grayson was acquitted, leaving only the Staff Sgt. Frank Wuterich case pending and Chessani's case.

The enlisted Marines were charged with murder and the officers accused of failing to investigate the deaths.

The case developed only after U.S. Rep. John Murtha, D-Pa., publicly accused troops of "killing innocent civilians in cold blood."