IN THE MILITARY

Soldier's conviction in death of Iraqi insurgent challenged

Website cites evidence withheld by prosecutors

Posted: June 04, 2009
12:00 am Eastern
By Bob Unruh
© 2009 WorldNetDaily


Michael Behenna

A campaign seeking a new trial for an Oklahoma soldier convicted of murder for the death of an Iraqi insurgent is gaining steam, perhaps at least partly 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.

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

The case involves soldier Michael Behenna, whose case is profiled on the Defend Michael website.

His mother, Assistant U.S. Attorney Vicki Behenna, told WND that a number of prominent Oklahoma leaders have written to U.S. Secretary of Defense Robert Gates on behalf of her son.

The letter also was reported by the Daily Oklahoman, which said among the bipartisan list of signers were four former U.S. attorneys, state Attorney General Drew Edmondson and David Boren, the president of the University of Oklahoma.

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

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

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


Michael Behenna, the day before leaving for Iraq

In an e-mail obtained by defense counsel after the trial was concluded, MacDonell wrote that he was "concerned" that 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 that her son now is imprisoned in Fort Leavenworth on a sentence of 25 years for the death of Mansur. The convening authority – or commanding general in the case of this military trial – still must review the situation, and after that an appeal is automatic.

But she said she promised her son she would not let people forget about his case.

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 that it is curious that the United States 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 people 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, how would a second shot enter under the terrorist's arm? she wondered.

In addition to accepting donations for the private law team working on the case, the website also allows participants to sign up on a petition protesting the case. It has collected a total number of signatures approaching 2,000.

"This is an outrage against this fine young man," said one participant in the website's forum page.

"Lt. Michael Behenna volunteered to don the uniform and defend the citizens of the United States even if it could cost him his life," wrote another. "It only seems fair under the present circumstances to give him every opportunity to clear his name and reinstating him to his present rank of 1st Lt. by allowing all the evidence available to be honestly presented."

"Thank you for your service for your country. I am a Vietnam vet and this thing just makes me sick, I don't know what's going on with this country anymore, it is shameful. I will be praying for you brother, stay strong, and God bless you," said another.

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 Haditha, Iraq, on Nov. 19, 2005. 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 Lt. Col. 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."

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