Vicki Behenna told her son to believe what she believed — that the justice system is fair, that he should let it run its course.
It is a belief born out of experience. She helped convict a bank president for misapplying funds, a pair of convenience store owners for food stamp fraud and even a former Oklahoma deputy treasurer for a kickback scheme involving state investment trades. She was part of the team that tried the crime of the century in Oklahoma.
She helped prosecute Timothy McVeigh.
She has seen the system work time and again.
Then, it failed her son.
A military court found Michael C. Behenna guilty of murder. In a combat zone while deployed in Iraq, he shot and killed an unarmed man who was part of a terrorist cell. The Army said it was an execution. Michael said it was self-defense. Then came information that prosecutors withheld a witness who could have bolstered his defense. It's a serious breach: Vicki could have been investigated, reprimanded and even fired had she committed a similar violation.
She's been fighting back ever since.
For nearly five years, this assistant U.S. attorney has waged a battle against the U.S. military that has taken Michael's case to the heights of the military justice system and possibly to the highest court in the land. She wants the U.S. Supreme Court to answer how a soldier in a combat zone can lose the right to self-defense. There's no sitting while she waits to hear whether court will take the case. With husband, Scott, she continues the fight, fulfilling every interview request, building a website following that numbers in the thousands, even climbing the congressional hill to find anyone who will listen.
What started the day terrorists flew planes into the World Trade Center and the Pentagon -- and ultimately led Michael to a remote railroad culvert in Iraq -- has turned this Edmond woman into a crusader.
She is fighting for a son and a system.
She is fighting because she promised.
It was March 20, 2009, in Fort Campbell, Ky. Michael had been denied a retrial and ordered to begin a 25-year sentence in military prison. Family and friends gathered hastily in a gray room ringed with plastic chairs to say their goodbyes.
Vicki waited for everyone else before saying hers.
“Mom,” Michael said, “nobody's ever going to know what happened here.”
They saw no media present and worried that the world might never hear about his plight. Had the same thing happened to another family, that might have been the case.
But it happened to Vicki Behenna's family.
Not only is the 54-year-old a federal prosecutor, but her husband is also in law enforcement. Scott was a longtime agent with the Oklahoma State Bureau of Investigation who now works as an intelligence analyst for the FBI. On a quiet suburban cul-de-sac, they raised three boys to know right from wrong, and Michael took those lessons to heart. He was a good kid who played lots of sports and had friends in every clique.
Vicki, barely 5-feet tall, looked up at her broad-shouldered, square-jawed son the day he was sent to prison.
“Michael, as long as I am breathing,” she said, “I will tell your story.”
A mother's promise spurred a crusade.
Vicki Behenna became a lawyer because no one thought she could be.
She once had a high school counselor tell her that she ought to think about going to vo-tech or cosmetology school. She was a smart girl, and her grades were mostly As and Bs. But she was just not that focused on school. Activities like being a majorette and a soccer team manager were more important to her.
But Vicki wouldn't hear the vo-tech talk.
Her resolve: Don't try to push me in that corner.
A few years later Scott tried to put the brakes on her plan to be an attorney. They married as sophomores at the University of Oklahoma, and as graduation approached, he wanted to work a couple years, save up a bit.
She applied for law school.
When she finished at Oklahoma City University, her heart was set on being a trial lawyer. She wanted to be before judges and juries, arguing cases and ferreting out right from wrong.
The first time she tried a criminal case, a bank fraud case against a father and his son, it was everything she hoped it would be.
Then came sentencing.
The gravity of putting other human beings behind bars weighed so heavily that she told the presiding judge she couldn't do it. The judge assured her empathy was crucial to being a good prosecutor.
And she has become a very good prosecutor.
After a few years in private practice, she went to work for the U.S. Attorney's office. She's spent 25 years as an assistant U.S. attorney, not a career for the weak or faint of heart. The pressures are extreme, and those who work with her say that stress never kept her from being the consummate professional.
She does things by the book.
As a federal prosecutor, that obligation runs deep when it comes to discovery. Don't cover up information. Disclose everything that may be useful, not only to the government but also to the defense.
Fail to do so, and it is a Brady violation. Named after a 1963 Supreme Court ruling that said withholding evidence favorable to the defense violates the Constitutional right of due process, it is a mistake with serious repercussions. It overturned a capital murder conviction in an armed robbery in Louisiana. It vacated the death sentence in a double murder case in Washington. It tossed out the guilty verdict in a child molestation case in New York.
Vicki believes a Brady violation cost her son his freedom.
Vicki's oldest son was a senior at Edmond Memorial High School on Sept. 11. Michael had never mentioned wanting to go into the military. Like thousands of Americans, he realized that day what he wanted to do with his life.
Vicki watched as he started college at the University of Central Oklahoma and got involved in Army ROTC. The pull of military service was so strong that Vicki and Scott struggled to keep him in school. They assured him there would be plenty of time to serve his country, and if he thought service meant going to war, there would likely be more wars.
Vicki was proud that Michael wanted to serve, showing her support by joining Blue Star Mothers and ultimately becoming president of the Edmond chapter. She knew he had a sense of obligation that dated all the way back to the Oklahoma City bombing. Michael was young then, but his baseball coach, Mike Weaver, died that day. For years, Michael wrote Weaver's initials in the top corner of all of his papers at school.
Still, Vicki prayed the wars in Iraq and Afghanistan would be over when Michael graduated. She hoped he would serve in a time of peace, a time when no one would be shooting at him.
After receiving his commission in May 2006 and training for more than a year, Michael was assigned to the 101st Airborne at Fort Campbell.
Vicki and Scott followed the next several months of Michael's life through their phone conversations. He made platoon leader. His was a group of self-proclaimed misfits. There was a gang member from L.A., a cowboy from California, a class clown from Wisconsin. Michael ate with them and joked with them, refusing to set himself above the enlisted men.
Vicki took pride in the way her son always made friends with everyone. As a kid, he had buddies from every clique. The popular kids from Oak Tree. The poor kids from the trailer park on Second Street.
By the time they deployed in September 2007, the men in Michael's platoon were like family.
His weekly calls home told the story of a fairly uneventful deployment. They manned checkpoints. They transported detainees. They made friends with local Iraqis.
Vicki wasn't home one day in late April 2008 when Michael called, but Scott was there to take the call.
“What's going on?” Michael asked.
It was his standard opening line, and as Scott usually did, he launched into news from home. How Michael's younger brothers Brett and Curtis were doing. How things were going at work.
“What's going on with you?” Scott finally asked.
There was silence on the line.
“Mike?” Scott asked.
He could hear sniffles.
Finally, Michael spoke.
“They killed my guys,” he said.
Through tears, Michael told how he and his men had been packed into three massive combat vehicles. The first two unknowingly drove over a hidden roadside bomb, but then Michael heard a giant thud.
He knew exactly what it was.
He looked in the rearview mirror and saw the third vehicle rolling, thousands of pounds of metal tossed aside like a toy.
Before his vehicle had come to a complete stop, Michael's boots were on the ground.
He spotted Adam Kohlhaas first.
The Army specialist was Michael's age. They worked out together on the base. They played cards in down times.
Michael bent over his bloodied, unconscious friend as a medic worked to get a pulse. Finally, someone said Kohlhaas was gone.
Then, Michael saw Steven Christofferson.
The specialist was the same age as Michael's younger brother Curtis and wanted to be a platoon leader. Michael had given him an Arabic phrase book and told him that learning the language would help his career.
Christofferson had been in the gunner's turret, and the blast had killed him almost instantly.
It was Michael's duty to call Kohlhaas and Christofferson's families after the accident, trying to explain something he couldn't wrap his 24-year-old brain around.
In the ensuing weeks, his struggles were obvious to his parents. Vicki urged him to retain some normalcy. Eat. Read. Work out.
“Mom, the man I used to work out with is no longer here,” Michael said. “I can't walk in a gym.”
Michael came home for R&R a couple months after the attack. One afternoon, Vicki took him to Penn Square Mall. His girlfriend, Shannon, and brother Brett tagged along. The gals wandered off to shop, leaving the brothers to chat, and as they did, Michael broke down.
They left the mall, went to the car and let Michael cry.
They figured it was the stress of the deaths of his men.
They didn't know the half of it.
Michael had only been back in Iraq a few weeks when he called Vicki.
“There's an investigation,” he told her.
“What kind of investigation?” she said.
“It involves a shooting incident that I was involved in.”
“Michael, don't tell me any more.”
As a lawyer, Vicki knew that there was no mother-son privilege. He wasn't her client. She wasn't his lawyer. If he told her anything incriminating and she was called to testify, she knew what the law demanded of her. She would have to tell the truth, even if it hurt Michael's case.
“Have you talked to a lawyer?” she said. “Do you have a lawyer?”
Then Michael said the hopeful words that would replay in Vicki's head thousands of times since.
“Mom, if they know what happened out there,” he said, “it'll be OK.”
“Great,” she said. “That's what investigations are for. They're a search for the truth.”
On July 31, 2008, the Army charged first lieutenant Michael C. Behenna with premeditated murder, assault, making a false official statement and obstruction of justice. The murder charge carried an automatic life sentence.
Vicki went looking for a lawyer to represent Michael. She had lots of lawyer friends who offered to help, but she wanted someone with a strong background in military justice.
The family hired a retired Marine who had represented a Marine charged with murdering Iraqi civilians. All charges in that case were eventually dropped.
Details about the case against Michael began to emerge after an Article 32 hearing, the military's equivalent of a grand jury proceeding. Among the facts: Michael took an Iraqi man out into the desert, stripped him naked in an attempt to humiliate him, then shot him in the head.
Vicki couldn't imagine her son ever doing that, but those details worried her.
So did her late-night phone conversations with Michael. He told her that while he was moving around the base, he thought he was seeing Kohlhaas and Christofferson, the men killed by the roadside bomb.
Politicians and civilians in Iraq were furious at the time, too. In 2005, a group of Marines went into the Iraqi city of Haditha and killed 24 civilians, including women and children, in retaliation for a roadside bomb that killed one of their own. Charges were filed, but by 2008 as the case against Michael was coming to light, most of the charges had been dropped.
Vicki went to Michael's attorney, Jack Zimmermann.
“If there's no chance of a defense, just get the best deal you can for Michael,” she told him. “We'll work with him. We'll get him back. But if there's no chance for a defense, just try to get him the best deal that you can.”
“There's a defense,” Zimmermann assured her.
Vicki kept replaying what Michael had told her, too.
Mom, if they know what happened out there, it'll be OK.
United States vs. First Lieutenant Michael C. Behenna began on Feb. 23, 2009.
Some details of the case are acknowledged by both sides.
In May 2008, Michael's platoon detained an Iraqi man named Ali Mansur. He was part of a terrorist cell, information backed up by declassified intelligence reports that say he was al-Qaida. A report prepared by Army intelligence sources said that Mansur was a supplier of explosives and weapons and was part of the al-Qaida cell that detonated the roadside bomb that killed Kohlhaas and Christofferson.
Army interrogators questioned Mansur, but a week and a half later, on May 16, 2008, Michael's platoon was ordered to take Mansur home. Interrogators didn't have enough evidence to keep Mansur, and even though Michael pushed for more questioning, his orders to release Mansur stood.
Michael directed the convoy to a remote area near some railroad tracks. Along with an interpreter and another soldier, Michael walked Mansur to a concrete culvert between the tracks, where he was stripped of his clothes, a common tactic used by American soldiers when dealing with Iraqi detainees, and told to sit on a pile of rocks. As nightfall set in, Michael pointed his Glock at Mansur and began an unauthorized interrogation.
The prosecution argued that Michael planned to kill Mansur to avenge the deaths of Kohlhaas and Christofferson. It said he shot Mansur execution style as he sat on the rocks.
The defense disagreed.
A few minutes later, Michael shot twice.
Mansur was dead.
During Michael's testimony, he said that his intention was to interrogate Mansur, which he admitted was disobeying orders, but that he planned to let him walk to a nearby checkpoint. That's why he allowed him to keep his sandals even though he stripped him of the rest of his clothes.
Michael also testified that during his interrogation of Mansur, he turned toward his translator, who was standing outside the concrete culvert. As Michael listened, he heard a chunk of concrete hit the wall behind him. He turned to see Mansur, who was only a few feet away, beginning to stand and reach toward him and his gun.
Feeling threatened, Michael fired.
As Vicki listened to the testimony, it made sense to her. Michael's explanation of self-defense seemed strong, and Vicki was optimistic.
Then, the jury came back.
Michael was found guilty of unpremeditated murder, a lesser crime than the original charge but one that still carried a lengthy incarceration.
“You feel like you can't breathe. You don't know how to make it better,” Vicki said. “Now, you're in a process that you absolutely cannot control.”
With sentencing scheduled for the next morning, Vicki left the courtroom feeling defeated. What more could she do? What recourse did they have?
She didn't sleep.
The family was back in the courtroom the next morning for sentencing, but as the clock ticked toward 9 o'clock, none of the lawyers were in the room.
When the judge and lawyers finally appeared, Michael's attorney Jack Zimmermann moved for a mistrial. Dr. Herbert MacDonell, a blood spatter expert, had been retained by the prosecution but had never been called to testify. He's a legal expert who's able to tell where a bullet is fired from based on forensic evidence.
As MacDonell left the courtroom to catch his flight home to New York a few days earlier, he mentioned to Zimmermann that he would've made a good witness for Michael's case. MacDonell believed there were several scenarios that could have happened when Mansur was killed, including that he was standing instead of sitting and that Michael might have fired in self-defense.
Upon returning home, MacDonell sent an email to the prosecutors, who then forwarded it to the defense. MacDonell expressed concern that his ideas had not been shared with Michael's attorney.
The reason for his concern?
Prosecutors must share evidence with the defense that might be favorable to the defendant. If the prosecution fails to do so, it is a Brady violation.
As Vicki sat in court that morning and realized that one of the main tenants of her profession and one of Michael's Constitutional rights might have been violated, her anger boiled over. She ran out of the courtroom in tears. Bawling, she went to the ladies room and slammed her fists against the wall.
Damn it, she thought, how do you do this to an American soldier?
Less than a month later, on March 20, 2009, a military judge denied Michael's motion for a mistrial and ordered him to begin a 25-year sentence in military prison.
Vicki and the rest of the family remained silent during the trial, believing that the case should be decided by the court, not in the court of public opinion. Political tensions had been running high for more than a year as the United States and Iraq worked to sign a status of forces agreement outlining the parameters of the American military's involvement. Some Iraqis expressed concern that American soldiers who'd committed acts of violence against Iraqis had not been adequately punished.
Vicki wanted to avoid any talk that Michael's case might've been politically motivated.
But when the Brady violation was ignored and the mistrial was denied, she had to do something.
A website had been started by some of Vicki and Scott's friends before Michael's trial, but it was largely to raise money for his defense fund. The Behennas decided to beef up DefendMichael.com, adding photos and links and periodic newsletters to share more about Michael's story.
There were interview requests. She talked to the Los Angeles Times. She went on the Dennis Miller Show. There were government and military leaders to contact. Vicki wrote letters at first, then made trips to Washington, D.C. to knock on doors.
She became the face of the fight.
The daughter of an English mother, Vicki had always been taught to keep a stiff upper lip, to never let them see you sweat.
Still, those who know her best struggle to comprehend how Vicki has had the courage to do all she's done. Her faith is strong — she firmly believes it is God who strengthens Michael to be able to endure incarceration — but the stress has been great. Migraine headaches set in during the worst of times.
Despite the strain of the fight, friends say she has maintained her pleasant disposition. She takes her 80-year-old mother shopping on Saturdays. She hosts family dinners on Sundays, featuring meats smoked by Scott. She makes platters of munchies for house guests and winks to make you feel like part of her jokes.
But the petite redhead is a bulldog when it comes to fighting for Michael.
In addition to fronting the fight, she has done a lot of legal work behind the scenes. As Michael's case was appealed to higher and higher courts in the military justice system, she found case law about Brady violations. Researched different topics. Helped Michael's attorney think through various issues.
Her level of involvement was rare for one of Zimmermann's clients. He's accustomed to sending a draft of a brief or a pre-trial motion to a client, but because he valued Vicki's input so much — he considers her a brilliant attorney — he sent her drafts throughout the process.
But at every level, Michael's appeals met with denials. The U.S. Army Court of Criminal Appeals upheld his conviction and sentence in July 2011. The U.S. Court of Appeals for the Armed Forces did the same a year later.
The U.S. Court of Appeals for the Armed Forces is the highest military court in the land. It represented Michael's last chance in the military justice system, and it upheld his conviction by a narrow 3-2 margin.
Vicki felt like they had come so close to getting Michael's conviction overturned, but when all was said and done, nothing had changed.
The three judges said that Michael lost his right to self-defense when he pointed his gun at the unarmed, naked Iraqi. They ruled further that Michael couldn't regain a self-defense claim unless Mansur had escalated the conflict or attacked Michael as he tried to withdraw; they determined that Mansur throwing a chunk of concrete was not an escalation of the conflict.
The other two judges argued that Michael should get a new trial.
“A death occurred in the theater of operations,” they wrote in a strongly worded dissent. “A soldier has been convicted of murder. Was it murder or self-defense?”
Vicki and Scott went to see Michael at Fort Leavenworth in Kansas, where he is serving a 15-year sentence, reduced five years by an Army general and another five years by a clemency board from the original 25 years. His parents make the 10-hour round trip to the military prison northwest of Kansas City every other weekend, and while they usually try to spend time talking about things happening back at home, Vicki was down about the high military court's ruling.
“Michael, I am so sorry,” she told her son. “I kept telling you the system would work.”
“Mom, I'm OK,” Michael told her. “Physically, mentally and spiritually, I'm in a good place. Don't apologize.”
Michael has been a rock.
Vicki figures if he can keep going, "I damn sure can."
Long before the highest military court said no to Michael's case, Vicki had started to think about what would come next.
Earlier this year, a new team of attorneys representing the Behennas filed a petition with the U.S. Supreme Court. The attorneys asked that the highest court in the land hear Michael's case because the top military court issued a wrong and dangerous decision when it upheld his conviction. Allowed to stand, the ruling would prevent U.S. service members from defending themselves in combat zones, the attorneys said.
Vicki has a real problem with the idea that a soldier could lose his right to defend himself in a combat zone. She worries that prosecutors in government offices will be the ones determining what's allowable in the fog of war.
She points to the fact that the justice system doesn't even do that to police officers. They can search a house, even a wrong house, and if they feel they are in imminent danger, they can shoot in self-defense.
Vicki doesn't understand why that right to self-defense would be given to a police officer in the line of duty but not to a soldier in a combat zone.
Michael's petition has drawn support. A group of more than three dozen retired generals and admirals has urged the Supreme Court to hear Michael's appeal. The National Association of Criminal Defense Lawyers has also filed a friend-of-the-court brief on Michael's behalf.
The U.S. Justice Department, though, recently said in a brief that the Supreme Court should not review the case. Michael's legal team has until Tuesday to file a response, then the Supreme Court will decide in the coming weeks whether to hear the case. Should it take the case and ultimately rule in Michael's favor, it would likely kick his appeal back to the military justice system to try again.
Vicki acknowledges that it's unlikely that the Supreme Court will take the case. The court receives more than 10,000 petitions a year but hears only 75 or 80.
What if Michael's isn't one of them?
Vicki will continue to fight.
There will be more letters to write, more visits to make, more people to contact. There will be more clemency hearings, more appeals to release Michael early; he will have his first parole hearing later this year. There will always be something more that can be done.
This has become Vicki's life. “Me time” is a thing of the past. She doesn't sit and watch TV. She doesn't have a bunch of hobbies. When she's not at work, fighting for Michael is what she does.
Because she promised.
“Michael's going to come home,” she said. “We know that.”
If Michael, who is now 29 years old, serves out his sentence, he will be 40 when he is released. He is thinking about starting a cattle ranch when he gets out. He even has a name for his spread: the K&C Ranch.
For Kohlhaas and Christofferson.
There would be so much freedom as a rancher. He could be his own boss. He could make his own schedule. He could be outside as much as possible.
Vicki intends to do anything that could hasten that day.