http://www.greeleygazette.com/press/?p=9578
Soldier doing 15 years for shooting terrorist in self-defense Posted by Jack Minor • May 12, 2011 • Prosecution withheld key evidence, judge says, "So what" by Jack Minor While the nation rejoices at the death of Osama bin Ladin, a soldier who killed a terrorist that attempted to grab his weapon continues to serve out a 15- year sentence. His mother, Assistant District Attorney Vicki Behenna, told the Gazette details of the case which are also available on a website supporting her son. LT Michael Behenna was deployed to Iraq in September 2007. His platoon was attacked in April of the following year by Al Qaeda operatives, resulting in the death of six people. The following month Ali Mansur, a known terrorist, was detained and held for his role in the April attack. The Army, without explanation, released Mansur and ordered Michael to return him to his home. Prior to his release, the terrorist lunged at Michael attempting to get his gun. Michael defended himself by firing two shots at Mansur, killing him. After learning of the incident, the Army charged Michael with premeditated murder. During the trial, the prosecution argued that Mansur was killed execution style as he sat on a rock. On February 25, their expert witness, Dr. Herbert MacDonnell, stated the evidence indicated that Mansur was actually standing and reaching for Behenna's gun when he was shot. MacDonnell has over 50 years of experience in forensic science. He is the director of the Laboratory for Forensic Science in Corning, N.Y. and participated in investigations of the Dr. Martin Luther King Jr. and Sen. Robert Kennedy assassinations. He also testified in the O.J. Simpson murder case. The following day, Behenna told the jury that, while interrogating Mansur, he turned back to talk to the interpreter. At that time Mansur, who was only three to four feet away, lunged for Michael's gun. Michael then moved to the left and fired two shots. This explanation was identical to what MacDonnell had told prosecutors the evening before. During a brief recess, MacDonnell met with the prosecutors and said the evidence indicated that, "Michael must be telling the truth" and in the interest of justice they should put him on the stand. The prosecution team reportedly looked at MacDonnell coldly and told him his services were no longer needed and he would be flown home that night. As he left the courtroom he told the defense counsel, Jack Zimmerman, that he would be a great witness for Michael. He stated he could not elaborate as he was still an expert witness for the government, but told them to ask the prosecutors. The following day, based on MacDonnell's comments, Zimmerman asked the prosecutors if they had any exculpatory evidence that should be provided to them. The prosecution denied having any such evidence. During the closing arguments prosecutor Jason Elbert argued it was "impossible" that Mansur was reaching for Michael's gun, despite what his expert witness had told him. As a result of the withheld testimony, Michael was convicted of unpremeditated murder. Following the conviction, but prior to the sentencing, Dr. MacDonnell submitted an email to the prosecution expressing his concern over not being able to testify. 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." MacDonnell continued, "Admittedly, this would be an amazing coincidence, however, it fits the facts and … I cannot think of a more logical explanation. 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." Following receipt of the email, one of the prosecutors revealed its contents to the court. Despite this revelation, the judge subsequently refused defense requests for a mistrial. Behenna was sentenced to 15 years in prison. In December Michael's family appeared before the Army Clemency Board. During the appearance, the family stated Michael's sentence was 50 percent higher than the highest sentence given to any soldier convicted of unpremeditated murder in a combat zone. The board was also presented with letters from the Governor of Oklahoma, the Oklahoma Attorney General, Law Enforcement Agency Heads, and the entire Oklahoma Congressional Delegation. Michael has had an unblemished record in prison and three offers of employment if released. The chairman of the clemency board said that Michael had "turned the corner" and then subsequently refused to grant clemency with no explanation given. Several days later, Michael appeared before the Army Appeals Court. During this hearing the Army began to be taking a different approach. According to Vicki Behenna, the Army is now claiming that even if Mansur had lunged at Michael and reached for his weapon, Michael would still be guilty of murder. Their reasoning is that Michael lost his right of self defense when he pointed a loaded gun at the terrorist. A decision on the appeal could take up to another year. Michael is among a group known as the "Leavenworth 10." The group consists of soldiers and Marines serving time at Ft. Leavenworth for killing members of Al Qaeda or Iraqi insurgents. Supporters of the group have criticized what they see as "politically correct" convictions." Vicki said, "I understand having rules in place to protect innocent civilians, but when you're talking about an enemy combatant like Mansur, our troops should know they can defend themselves. If you're not going to do that, don't send them over there." She went on to say if the Army disagreed with the action Michael took they should have reprimanded him rather than charging him with murder. When asked why she felt the Army decided to charge Michael for killing a known terrorist, Vicki said her husband, Scott, believes it was possible the military prosecuted Michael and the rest of the "Leavenworth 10z' in order to help secure a Status of Forces Agreement with Iraq. An SOFA is an agreement between two countries detailing the rights and privileges of the foreign country's military members. "I think a lot of the prosecutions that took place in 2008 were to show the Iraqi government we would prosecute soldiers that injured or killed civilians." Supporters of Michael are encouraged to send him a card and sign a petition on the website showing their support. Requests made to the Army for comment on Lt. Behenna's case were not returned ------------------------------------ -------------------------- Want to discuss this topic? 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