Army Officer Denied Retrial Despite Expert's New Testimony

newsmax.com ^ | March 21, 2009 | Nat Helms Article

[kellynla]

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.

[kellynla]

ping

[coloradan]

I didn’t know murdering Al Qaeda was illegal. If it is, there are a lot of people who should be tried and convicted.

[Oldpuppymax]

Of course had the terrorist shot our kid, it would have been perfectly acceptable and the ACLU would have rushed to his defense. There is something radically wrong in this nation. The question is how long the American people will “shrug!”

[Anti-Bubba182]

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.

That is true. The prosecutors are sucking eggs if they withhold “exculpatory evidence”.

[kellynla]

“I didn’t know murdering Al Qaeda was illegal. If it is, there are a lot of people who should be tried and convicted.”

WRONG!

There are many American Soldiers, Sailors, Airmen & Marines, including yours truly, who have “killed” the enemy in war BUT 99.9% never “murdered” anyone. There is a HUGE difference in killing the enemy & murdering the enemy.

Semper Fi,
Kelly

[Yorlik803]

Breaker Morant, call your office.

[Just A Nobody]

Nat Helms Ping

[SandRat]

Miliary Court of Appeals time

[JDW11235]

While it is going to be very hard to point it out to some people, you are absolutely correct.

[freema]

armymarinemom ping

[xrmusn]

Madness!..Madness! Madness!
Major Clipton at the end of “Bridge on the River Kwai”

We are self destructing .....

[armymarinemom]

Do you know of anyone who is working on this? Merry Pantano’s org sounds like it has it’s hands full with the Marines.

[brushcop]

You’re terminology is wrong coloradan, watch it. I don’t appreciate the inference.

Vet and combat Infantryman’s dad

[jimtorr]

If the story is accurate, Zimmerman should already be planning an appeal.

[mountainlion]

So lets see if I have this straight. Officer confronts ali Manure and the Ali Manure has the choice of surrendering and going to Club Gitmo or going to Alla. US Officer goes to court and gets sent to Levenworth over protest of innocents.

Right is wrong, cold is hot, up is down.

[JDW11235]

Light for darkness, bitter for sweet?

[Polybius]

I didn’t know murdering Al Qaeda was illegal. If it is, there are a lot of people who should be tried and convicted.

There is a huge difference between "killing" and "murdering".

For example, "killing" was the case when that man saved John F. Kennedy's life. Just as the potential assasin, I forget his name, had Kennedy in the sights of his rifle, the hero burst into the room at the Dallas School Depository and shot the would be assasin dead. As you recall, he received the Congressional Gold Medal for his heroic act.

"Murdering" would have been if our hero had, say, shot the assasin after he killed Kennedy and was already in custody. If that had happened, he would have ended up in prison for murder.

Self defense makes the shooting justifiable.

"He was al Qaeda" or "He assasinated JFK" does not.

If the dead man was al Qaeda, he might have divulged valuable information under interrogation that would have prevented an attack that later took American lives or helped round up other al Qaeda operatives. Dead men, however, don't talk and takes their information to the grave.

[RaceBannon]

It is one of the reasons I hate Bush now. His admistration allowed this crap to go on, and these men have even less chance to get exonerated with Obamanazis in power

[Uri’el-2012]

You’re terminology is wrong coloradan, watch it. I don’t appreciate the inference.

Vet and combat Infantryman’s dad

No sugar in your coffee this morning ?

Veteran & son of a WWII Officer.

All of my uncles served in WWII as well.

[bigheadfred]

Right is wrong, cold is hot, up is down.

They'll tell you black is really white. The moon is just the sun at night.

What the average person/juror doesn't understand is that the American system of justice has been so completely corrupted that in many trials there is way too much that is left unsaid and too many people are wrongly convicted. The prosecution doesn't care about the truth. All they care about is winning. Another notch on their pistola. And there is the prevailing attitude that if a person has been alleged to have committed a crime, then they are guilty.

The problem the defense faces is partly not knowing the right question to ask. Most witnesses are not allowed to soliloquize.

And to somehow think that the military is any more honorable, more aligned to producing the truth, and thereby able to more fairly dispense justice is proving itself to be a fairy tale.

"I'll tell you after" the hanging is such complete bullsh!+.

[Polybius]

So lets see if I have this straight. Officer confronts ali Manure and the Ali Manure has the choice of surrendering and going to Club Gitmo or going to Alla. US Officer goes to court and gets sent to Levenworth over protest of innocents. Right is wrong, cold is hot, up is down.

The situation you have described is called "combat".

Here is the situation described by the prosecutor's charge:

Military prosecutors accused a U.S. soldier Sunday of taking an Iraqi detainee to a remote desert location, stripping him naked, shooting him in the head and chest and then watching as another soldier set fire to the body with an incendiary grenade. .... Prosecutors showed video footage taken by Iraqi police of Mohammed's heavyset, naked body lying on what looked like a large blood stain in the tunnel. His head, neck and shoulders were charred black.

That has described murder, not combat.

History says that the ancient Celts fought naked in combat. This man was not an ancient Celt.

[lilycicero]

A “you gotta be indicted to be invited” USDB ping.

[freema]

I sure don’t.

The article says, “Military law mandates that murder sentences be automatically reviewed in the Army Court of Appeals in Washington.”

But interestingly enough, the article also states Behenna’s mom is a noted attorney.

You won’t believe this...Look at what a quick search revealed:
http://www.okcu.edu/law/facultyandadministration/adjunct_behenna.php

[Polybius]

You’re terminology is wrong coloradan, watch it. I don’t appreciate the inference. Vet and combat Infantryman’s dad

No sugar in your coffee this morning ? Veteran & son of a WWII Officer. All of my uncles served in WWII as well.

Did your dad or any of your uncles ever kill a naked ancient Celtic warrior in combat during World War II?

See Post 22.

Military prosecutors accused a U.S. soldier Sunday of taking an Iraqi detainee to a remote desert location, stripping him naked, shooting him in the head and chest and then watching as another soldier set fire to the body with an incendiary grenade. .... Prosecutors showed video footage taken by Iraqi police of Mohammed's heavyset, naked body lying on what looked like a large blood stain in the tunnel. His head, neck and shoulders were charred black.

[armymarinemom]

Holy cow!!

[coloradan]

Thank you for the clarification. I was wrong and I apologize.

[Levante]

“Breaker Morant, call your office.”

Just saw it last week. What a great movie. And a terrible miscarriage of justice.

[Yorlik803]

That poem that was read at the end can be used by the brave Servicemen and women fighting the Muslims today.

[Uri’el-2012]

c>I didn’t know murdering Al Qaeda was illegal. If it is, there are a lot of people who should be tried and convicted.

Did your dad or any of your uncles ever kill a naked ancient Celtic warrior in combat during World War II?

No.

My uncle (who was a combat engineer) would never talk about the war.

But I know he would never buy any Japanese product
because of the Utter Brutality of the "J-ps" on the Pacific islands.

If you review the history of the war in the Pacific,
we burned many J-ps in combat in order to protect our troops.

We are either at war and Al Qaeda is the enemy
or we are playing tiddlywinks being supervised by the ACLU.

[Levante]

You’re absolutely right.

Our troops are being sacrificed by the scumbag politicians to garner favor with our enemies. May hell be full of corrupt, treasonous politicians.

Regards from Germany,
Levante

[edge10]

If killing terrorists is wrong, I don’t want to be right.

[bigheadfred]

GAME ON!

[bigheadfred]

May hell be full of corrupt, treasonous politicians.

I think it already is and they are sending us the overflow.

[Hawk1976]

Rule # 1 When dealing with a Muslim is don’t believe him without good evidence. I don’t know which side the Iraqi police were on, so I don’t believe the evidence.

[Levante]

I think you are right.

[lt.america]

Some military lawyers are Soldiers/Airman/Marines first and lawyers second and others are trying to get trial time and keep their conviction rate high.

Pains me to say that but many do not have the best interests of the service at heart. Obviously you don't want anyone to disregard the UCMJ or half step, but if the prosecution willfully withheld this information, this is the worst kind of treachery in my opinion.

[Girlene]

Here's a little more information from Oklahoma City News, Judge Denies Behenna Mistrial Motion, Attorney For Convicted Soldier To File Appeal

On Friday, a judge denied Behenna’s motion for a mistrial. Behenna's attorney said he filed the motion after they found out prosecutors withheld evidence.

The discovery was made during the sentencing phase of the case last month. The court learned that the government’s expert witness said Behenna told the truth about what happened.

The prosecution never put that witness on the stand. A jury found Behenna guilty and sentenced him to 25 years in prison.

While the the judge denied the motion, Col. Theodore Dixon said he will recommend Behenna's sentence be reduced to 18 years.

Behenna’s mother said that she is upset by the entire situation. The lieutenant’s attorney said since the judge denied the motion, he is going to file an appeal.



Prior to the judge's mistrial motion, CAAFlog had a very interesting discussion of the case and the implications of the "exculpatory evidence" that was witheld in this blog, Behenna Gets 25 Years at GCM. Lots of "lawyer speak".

Here is CAAFlog's discussion after Frdiays' rejection of a mistrial motion. Military Judge Denies Mistrial in Behenna But Recommends 7 Year Cut in Confinement

It's interesting that Behenna doesn't deserve a new trial (according to the judge), but he deserves 7 years cut from his sentence. Why?

[bigheadfred]

A big problem, IMO, is there are a large number of people who think appeasement will solve the problem with Islam. Or that somehow “we” are above “murder” when dealing with the problem.

All that idealistic, moralistic sophistry won’t save them when they are dragged from their high horses and their freaking heads are hacked off.

[bigheadfred]

Ours is not to wonder why—ours is to get our freaking heads chopped off because we failed to utterly destroy the ability of Islam to destroy us.

If that isn’t the answer you are looking for, maybe this one is:

It is chicken****.

[HighlyOpinionated]

The entire story has not been revealed.

This situation does not pass the smell test.

Remember, it is such as this soldier who may be fighting for freedom, liberty, and the USofA in the coming season of 0-vs-WeThePeople.

[Dubya]

Don’t hurt the Muslims or we will put you in jail

[Anti-Bubba182]

Agreed!

[mountainlion]

My bias is to assume the man innocent. I have seen much in the media that was completely false and of course there is the LIAR john kerry to take into consideration. murtha lied about cold blooded murder like kerry.

[Talisker]

Apparently the forensics expert is saying that the prosecution’s description of the incident (which you posted) is backwards. That instead of being shot “in the head and chest,” the shooting was done in first in the chest, and then in the head. And that this order of shooting can only be explained by self-defense.

[Polybius]

We are either at war and Al Qaeda is the enemy or we are playing tiddlywinks being supervised by the ACLU.

By the same token, you can't have anarchy in the ranks. You don't win wars with anarchy.

"Colonel, we captured Muhamed al Shiitehead."

"Fantaaaastic!!! We can get a goldmine of information out of him!"

"Well, ummm ... No, sir, we can't.

"Why not. They always end up talking.

"Well, ummm .... Not after Lt. Jenkins took it upon himself to put a .45 slug into his brain."

[Uri’el-2012]

You sound like some panty-waisted liberal from DU.

The Marquis of Queensbury rules are only for two civilized Brits.

The Geneva Rules are only for uniformed enemy military.

I'll bet you want to arrest terrorists.

[Girlene]

I asked the question why because a Military Judge does not arbritraily reduce a conviction by 7 years. Here's more information from another CAAFlog blog prior to and on the day of Behenna's mistrial motion decision, Does Anyone Have a Behenna Update.

There is lots of interesting speculation about the legalities of Brady material, mistrial, double jeopardy type of implcations on the various CAAFlog blogs on Behenna.

Supposedly the forensic specialist made an initial report for the prosecution that wasn't conclusive, but leaned in the direction of the prosecutors. After hearing the defense forensic experts, the prosecutor's expert reviewed the material and came to the conclusion the defense explanation was the only one that made sense. He allegedly even conducted an experiment to demonstrate the theory. Then the prosecution sent him home.

After the defense was aware that they might have an issue of favorable evidence (or Brady material) not being turned over, they allegedly asked the prosecutors if any existed. Prosecutors said no.

There's a reason the Lt. was not confined after being sentenced. He was only taken into custody since this mistrial motion was decided. According to one blogger at CAAFlog, the judge DID find the evidence was favorable and should have been disclosed. But, he didn't think it would have affected the outcome. The blogger wonders if is is reversable error by the judge since the Brady material (favorable evidence) not only pertains to findings of innocence or guilt, but also to punishment determination.

[kellynla]

apology accepted :-)

[Polybius]

Apparently the forensics expert is saying that the prosecution’s description of the incident (which you posted) is backwards. That instead of being shot “in the head and chest,” the shooting was done in first in the chest, and then in the head. And that this order of shooting can only be explained by self-defense.

Well, not really. The term for shooting a man in the head after you shoot him in the chest has been traditionally called a "coup de grace".

Shoot him. Drop him. Finish him.

That goes for hunting too. I have an elk skull I once found with small bullet hole right between the eyes. I can guarantee you that was not the first shot or a shot fired in self defense.

The self defense explanation is possible but not plausible. It just doesn't pass the smell test with a naked man.

A more plausible explanation is that the "naked man" evidence was faked, as Hawk1976 pointed out. However was this claim used as a defense?