A military judge Friday refused to throw out Army Lt. Michael C. Behenna's murder conviction despite an 11th-hour claim by the prosecution’s own forensic expert that the infantry officer is likely innocent.
A military court on Feb. 27 found Behenna guilty of murdering al-Qaida operative Ali Mansur Mohammed in Iraq on May 16, 2008 during a field interrogation. Behenna, 25, an infantry platoon leader in the 101st Airborne Division, maintains the shooting was in self-defense.
The seven-member panel that convicted the young officer rejected that claim, but new information indicates the court may not have heard the whole story. On the day the verdict came down, the government's own forensics expert, Dr. Herbert L. MacDonell, told Army prosecutor Capt. Meghan M. Poirier that he had changed his mind and now believes Behenna killed Ali Mansur in self-defense.
In a letter dated February 27, 2009, MacDonell told Poirier he was “concerned that I did not testify and have a chance to inform the court of the only logical explanation for this shooting.”
“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 wrote. “It fits the facts and I can not think of a more logical explanation.”
The Army lawyers prosecuting Behenna had a legal duty to reveal such “exculpatory evidence” that could clear Behenna to the defense and failed to do so, Behenna’s lawyer Jack Zimmermann tells Newsmax.
Military prosecutors could not be reached for comment.
Behenna has already begun serving a 25-year sentence for unpremeditated murder. He will eventually be transferred from Kentucky to the Ft. Leavenworth Disciplinary Barracks in Kansas.
Zimmermann filed the motion for a mistrial last Tuesday morning after learning that MacDonell's theory of how Mohammed died substantiated Behenna’s claim of self-defense. Behenna claimed the Iraqi terrorist lunged for his pistol before he shot Ali Mansur in the head and chest.
Behenna detained Ali Mansur Mohammed on May 5, 2008. Mohammed was a suspect in the April 21, 2008 roadside bombing that killed platoon members Spec. Steven J. Christofferson, 20, of Cudahy, Wis., and Sgt. Adam J. Kohlhaas, 26, of Perryville, Mo.
While transporting the prisoner, Behenna testified, he drove Mohammed to a secluded area to interrogate him after conferring with the local Sunni “Sons of Iraq” leader. Behenna was accompanied by an Iraqi interpreter identified only as “Harry,” and Army Staff Sgt. Hal C. Warner, his platoon sergeant.
After being forced to strip naked, Mohammed rose and tried to wrestle away Behenna’s pistol. Behenna claimed he reflexively fired, striking Ali Mansur first in the chest and again in the forehead.
Warner and Harry testified they did not witness the shooting.
The government argued Behenna shot Ali Mansur Mohammed first in the head and then in the chest while he was sitting down, a sure indication of intentional murder. The crime scene was partially obliterated when Warner placed an incendiary grenade on Mohammed's body after the shooting.
Warner subsequently pled guilty to mistreating Mohammed before Behenna’s trial and is currently serving a 17-month sentence at Ft. Sill, Okla. Before making a deal with prosecutors, he faced life in prison without parole for first-degree murder. Warner, a three-tour Iraqi veteran, testified againt Behenna at his court-martial.
During the trial, the prosecution argued that Behenna’s self defense claim was “incredible,” and “impossible,” because Mohammed was undoubtedly first shot in the head while sitting.
MacDonell, a world renowned forensic specialist, has investigated such high profile cases as the Martin Luther King assassination, the murder of Robert Kennedy, and the O.J. Simpson double murder case.
“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 after leaving Ali Mansur's head or body,” MacDonell surmised. “I do not know where this bullet was recovered but I would expect that after impact to the concrete wall it fell very close to that wall. The other bullet should have been close to the first and there should have been two impact points on the wall.
MacDonell revealed his discomfort to Zimmermann as he was leaving the courtroom after testifying against Behenna during the court martial.
“I would have been a good witness for you,” MacDonell confided in Zimmermann on his way into the court room the day before Behenna was convicted.
“Why is that?" the always laconic Zimmermann responded.
“I can’t tell you. I was retained by the prosecution. I will write you after the trial,” MacDonell replied.
The next morning Zimmermann asked the three Army lawyers prosecuting Behenna if they were aware of any evidence offered by MacDonell that could help exonerate Behenna. They denied knowledge of any exculpatory evidence, Zimmermann says.
The government “specifically addressed the forensic evidence in a manner that was completely contrary to Dr. MacDonell’s withheld exculpatory expert opinion,” Zimmermann said in his motion for mistrial.
Ironically, MacDonell testified in the federal trial of infamous Oklahoma bomber Timothy McVeigh. Behenna’s mother Vicki, is an assistant U.S. attorney in Oklahoma City who helped convict McVeigh in April 1995 of planting a homemade truck bomb that claimed 168 lives and left over 800 people injured.
Until the September 11, 2001 attacks that sent young Behenna to the war that destroyed him it was the deadliest act of terrorism on U.S. soil.
“We think the judge erred,” Zimmermann said. “MacDonell’s conclusions will be very useful in his appeal.”
Military law mandates that murder sentences be automatically reviewed in the Army Court of Appeals in Washington.
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