The sentence for a U.S. soldier who says he killed an al-Qaida operative in self-defense has been reduced by the Army Clemency Board from 20 to 15 years, according to a statement released by supporters of 1st Lt. Michael Behenna.
The soldiers’ advocates, however, also point out his appeal is pending, and they have confidence his case ultimately will be overturned, because prosecutors withheld critical evidence during his trial.
As WND reported, the clemency hearing was one of two tracks pursued by Behenna’s family members and legal representatives.
The focal point of the arguments has been a statement by a witness for the prosecution that Behenna’s own description of shooting the al-Qaida operative in self-defense was the only explanation supported by the facts.
The issue is raising concern because of the decision by the prosecution to not only exclude the statement from the case but withhold it from the defense until after the conviction.
Behenna’s story is profiled on the Defend Michael website.
According to today’s e-mail announcement, Deputy Secretary of the Army Catherine Mitrano followed the recommendation of the Army Clemency Board and determined Behenna’s sentence should be reduced from 20 years to 15 years in the death of the operative, Ali Mansur.
“Although we asked that Michael’s sentence be suspended pending his appeal, we are nonetheless grateful for this reduction in sentence,” the organizers behind the support website said. “Yet it is still hard to believe that this wonderful young man who fought so bravely for his country could sit behind bars until he turns 40 years of age. I promise you that our fight for him will not end until Michael is free once more.”
The announcement said the next step will focus on the appeal. Behenna’s lawyers filed a brief in December, and the military’s response isn’t due for several months.
“Once the military files their response then Michael’s appeal will be set before the Army Court of Criminal Appeals, most likely later this summer. We believe that Michael’s appeal is especially strong based upon the prosecutor’s withholding of critical evidence from the jury,” said the announcement, signed by Behenna’s parents, Scott and Vicki Behenna.
Vicki Behenna, an assistant U.S. attorney, has told WND the goal is a full vindication.
Mansur had been questioned in Iraq in connection with an attack that killed members of Behenna’s squad. Then authorities ordered his release and told Behenna to escort Mansur back to his home.
On the way there, Behenna questioned Mansur again. The prosecution alleges Behenna ordered Mansur to sit down on a rock and executed him. Behenna, however, said he had turned to look at an interpreter and glanced back to see Mansur lunging for his gun.
He said he fired one shot as Mansur had his arms raised and was lunging for the gun and fired a second shot that apparently hit Mansur in the head as he fell.
Michael Behenna, the day before leaving for Iraq
The dispute arose because of the testimony prepared by Herbert MacDonell, a forensics expert who heads the Laboratory for Forensic Science in Corning, N.Y. Called by the prosecution, he concluded Behenna’s account of the situation was the truth. Prosecutors then chose not to have him testify.
They also declined to inform the defense of MacDonell’s observations until after the conviction.
In an e-mail obtained by defense counsel after the trial, 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.
American court procedures call for prosecutors to provide any exculpatory evidence – information that could help the defense – to defense attorneys in the case.
But according to reports, defense counsel Jack Zimmerman asked prosecutors if they had any such information and was told no.
“Prosecutors withholding of this evidence allowed them to argue that Lt. Behenna executed Ali Mansur while seated when the forensic experts, including Dr. MacDonnell, agree that Ali was standing with his arms outstretched when shot,” according to the lieutenant’s advocates.
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, Mansur, described as a “known terrorist,” was detained on suspicion of being involved. But 11 days later, Army Intelligence officers ordered his release. They ordered Behenna to escort Mansur home.
Behenna now is in Fort Leavenworth.