The family of an Edmond soldier convicted in 2009 of murdering an Iraqi civilian said they are surprised and devastated by Thursday's decision by a military appeals court to uphold his 15-year prison sentence.
At a news conference in downtown Oklahoma City on Friday, Scott and Vicki Behenna thanked supporters and said they will continue to pursue all possible legal avenues to bring their son home.
The news conference came a day after U.S. Court of Appeals for the Armed Forced upheld 3-2 a lower court's decision to convict 1st Lt. Michael Behenna on a charge of unpremeditated murder in a combat zone for his role in the death of suspected terrorist Ali Mansur.
“I just talked to Michael's lawyers — they want to file a motion to reconsider with the Court of Appeals for the Armed Forces that will be filed, I think, within 10 days,” said Vicki Behenna, a federal prosecutor in Oklahoma City. “We also are looking at the option of whether or not we can file a writ of certiorari before the United States Supreme Court. Those decisions will be made in the next couple of weeks.”
Between tears and flanked by her husband, two sons and a daughter-in-law, Behenna said her son's spirits remain high despite the court's ruling.
Behenna has been in custody at a military prison in Fort Leavenworth, Kan., since he was convicted at a 2009 court-martial. In his appeal, Behenna argued the judge in the court-martial mangled the instructions to the jury and that evidence that should have been turned over by prosecutors was withheld instead.
Family believes soldier acted in self-defense
In Thursday's opinion, a majority of the appellate court judges said they agreed with the defense's contentions but that the missteps were irrelevant in convicting Behenna.
The court said Behenna lost his right to claim self-defense when he pointed his gun at the unarmed and naked prisoner and because the interrogation was not authorized.
“Although he may have made some mistakes, he is in prison not for executing someone as was alleged and prosecuted,” Scott Behenna said.
“Remember, the whole trial was about execution; there was nothing about loss of right to self-defense, and the final verdict I think in Michael's mind vindicates him from the fact that people thought he might have executed someone.”
According to defense attorneys, Michael Behenna killed Mansur in May 2008, after the suspected terrorist threw a rock at him and lunged for his gun. Behenna was one of two tasked with releasing the prisoner at a checkpoint near Baiji, in northern Iraq.
Mansur was taken into custody by Behenna's platoon two weeks before, suspected of being the operative behind a roadside bomb that killed two members of the platoon in April 2008.
Scott Behenna, a former investigator with Oklahoma State Bureau of Investigation, said he is confident his son was acting in self-defense.
“I know this court said Michael did defend himself, however, he had lost that right based on some unauthorized act beforehand — not illegal act, unauthorized,” Behenna said. “So that's scary when your thinking about limiting a loss of right to self-defense. It's hard, but we'll get through it.”
The family said their son and brother was inspired to enlist in the military after the attacks of 9/11.
A 2006 graduate of University of Central Oklahoma, Michael Behenna is a leader and an intellectual, said his brother, Brett. They visit him every other weekend.
“He doesn't belong in prison,” Brett Behenna said. “What happened yesterday was a complete surprise.”
Vicki Behenna said the family may also seek a pardon for Michael, and have asked attorneys to begin drawing up the appropriate paperwork.