Withheld Evidence Could Free Soldier Convicted of Iraqi Insurgent Murder

Thursday, 14 Jan 2010 01:26 PM

By Phil Brennan

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The anquished mother of a heroic U.S. Army Ranger, 1st Lt. Michael Behenna now serving a 20 year prison sentence for allegedly murdering an Iraqi terrorist told an appeals court hr son is not guilty or should have his sentence reduced.

Vicki Behenna, a federal prosecutor appeared at a clemency hearing in Washington on Dec. 7, seeking to have her son freed or have his sentence reduced.

There is something seriously wrong with the execution of this nation's code of military justice — it is being used against the very people it is meant to protect.

Case in point: the imprisonment of a heroic Army officer for killing a murderous Iraqi insurgent who had killed two of his men in a cowardly attack that wounded two others.

This case is reminiscent of the disgraceful prosecution of officers and enlisted United States Marines for having killed 24 Iraqis, among them armed terrorists, in a confrontation in Haditha which resulted in all charges being dropped in eight of the cases.

Only two defendants remain under the gun wielded by the fanatics of the Naval Criminal Investigative Service and the Bush Secretary of the Navy and only Lt. Col. Jeffrey Chessani, already cleared of serious charges but punished anyway and Sgt. Frank Wuterich remain under the federal guns.

Last March, Army Ranger 1st Lt. Michael Behenna was socked with a 25-year prison sentence later reduced to 20 years for having allegedly murdered a known al-Qaida operative Ali Mansur, who was operating an al-Qaida cell inside Behenna's area of operations.

It was alleged that Mansur organized an attack on Behenna’s platoon in April 2008 which left two of Behenna's soldiers dead and another two wounded.

Mansur was first taken into custody and then later ordered released and  Behenna was instructed to escort him to his home.

En route there Behenna questioned Mansur, seeking to obtain information about his terrorist confederates and the identity of those financially backing them.

Up until then there is no dispute about the facts of the matter. It was what happened then that created the controversy. During this interrogation, Behenna said that Mansur suddenly lunged at him, and he shot him in self-defense.

The government, however charged Behenna with premeditated murder. Shockingly, in the trial that followed, expert testimony that would have fully exonerated Behenna was withheld from the court.

The prosecution insisted that Behenna stripped Mansur naked, seated him on a rock and executed him.

One of the government’s expert witnesses, a highly respected Forensic expert, Dr. Herbert Leon MacDonell, Director of the Laboratory of Forensic Science in Corning, N.Y, insisted Behenna was innocent and he could prove it.

His testimony would have proven that the angle of the gun shots and the blood spatter were consistent with self-defense not premeditated murder.

But after telling prosecutors what the forensic evidence showed — that Behenna was guiltless — this expert witness was sent packing.

Dr. MacDonnell told Behenna's lawyer Jack Zimmerman, who had successfully represented one of the Haditha Marines, that he fully agreed with Behenna's account of what happened, essentially destroying the government’s case he had been called to support.

Incredibly, the key witness in the case was not called to testify in the case and was sent home.

Before he retrieved his coat from the prosecution room he told the three prosecutors that, "The explanation that Lt. Behenna just testified to was the exact same scenario I told you yesterday. Lt Behenna is telling the truth."

Behenna, he said, was not guilty, dropping a bombshell on the government's case.

Despite the fact that prosecutors must disclose any exculpatory evidence they have to the defense, they denied having any such evidence despite having been told by their own expert witness that Behenna’s explanation was the only logical explanation.

Prosecutors withholding of this evidence allowed them to argue that  Behenna executed Mansur while seated when the forensic experts, including MacDonnell, agree that Mansur was standing with his arms outstretched when shot.

In a sworn affidavit, dated April 21, MacDonnell explained how knowledge he acquired while waiting to testify in the case could have changed dramatically its outcome.

"When I heard Lt. Behenna describe what happened, I did not say other witnesses were lying, or that my conclusion was based on my opinion of the lieutenant’s credibility. My expert opinion was based on the fact that the lieutenant’s description as to how the shooting occurred fit the physical evidence."

Lt. Behenna was convicted of unpremeditated murder and assault by a military panel of seven officers, none of whom had ever seen a minute of combat or ever heard a word of MacDonald's suppressed testimony.

He was sentenced to serve 20 years and now remains confined at the U.S. Army garrison in central of Kansas, largely due to the fact the evidence that would have proved he was not guilty was never allowed to be heard during the court-martial.

What happened here was a gross miscarriage of justice — a frightening example of government prosecutors running amok as they had in the shameful Haditha cases. The government's blatant suppression of evidence that proved Behenna's innocence must not go unpunished and Behenna must be freed.

His mother Vicki Behenna is a widely acclaimed assistant United States attorney who helped prosecute Oklahoma City bomber Timothy McVeigh and his father, Scott Behenna, a retired special agent with the Oklahoma State Bureau of Investigation, who now works with the FBI as an FBI intelligence analyst, charge that prosecutors appear to have committed a Brady Act violation by failing to disclose such information to defense lawyers as MacDonell's crucial sworn affidavit that proves that 1st Lt. Behenna is not guilty.

Both parents have been heroic in their relentless defense of their son.
Vicki can be reached at Vicki.Behenna@usdoj.gov. She can use your help in vindicating her hero son.

Phil Brennan writes for Newsmax.com. He is editor and publisher of Wednesday on the Web (http://www.pvbr.com) and was Washington columnist (Cato) for National Review magazine in the 1960s. He is a trustee of the Lincoln Heritage Institute and a member of the Association For Intelligence Officers. He can be reached at pvb@pvbr.com.


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