WASHINGTON — In what could be his last chance to gain a new trial, U.S. Army 1st Lt. Michael Behenna is asking the top military appeals court to set aside his conviction of unpremeditated murder in a combat zone.
If the U.S. Court of Appeals for the Armed Forces, based in Washington, declines to hear the Edmond native's case, he will have no more legal avenues to pursue. Behenna, 28, is serving a 15-year sentence at Fort Leavenworth in Kansas for killing an Iraqi man.
Behenna, whose case has attracted national attention, wrote an open letter to supporters in August criticizing the military justice system, though he said he still hoped to have “a fair, impartial trial where all the evidence may be heard.”
Vicki Behenna, Michael's mother and a federal prosecutor in Oklahoma City, said Friday that the family is “very hopeful (the court) will take the case, and we believe that it should.”
Behenna's parents, who live in Edmond, may be back in the Washington area within the next couple of months to ask a military clemency board to reduce their son's sentence again. Vicki and Scott Behenna have appeared before the board twice, and the sentence has been reduced once, by five years.
The fight before the appeals court is to get the conviction and sentence tossed, but it's a high hurdle to get a case reviewed.
Like the U.S. Supreme Court, the U.S. Court of Appeals for the Armed Forces hears only a fraction of the cases submitted. Two of the five civilian judges on the court must agree to accept a case; if the court doesn't agree to hear Behenna's case, he can't petition the U.S. Supreme Court for review.
The U.S. Army Court of Criminal Appeals in July upheld Behenna's conviction and sentence, rejecting arguments that prosecutors and the judge in his 2009 court-martial had effectively deprived Behenna of his defense — that he had shot Ali Mansur in Iraq in 2008 because Mansur was reaching for Behenna's gun.
The appeal filed earlier this month with the U.S. Court of Appeals for the Armed Forces raises the same legal issues that were before the Army appeals court.
Behenna's civilian attorneys, led by Jack B. Zimmerman, of Houston, a former Marine with broad experience in military courts, argue that prosecutors and the judge in the court-martial made mistakes that led to Behenna's conviction.
Prosecutors improperly failed to disclose that one of their own witnesses — a crime scene expert who was never called to testify — would have supported Behenna's story that Mansur was standing and reaching for Behenna's gun when killed, Behenna's attorneys say.
And the judge in the original court-martial obscured distinct legal points of self-defense when he gave the jury instructions on how to consider a verdict, the appeal argues.
The U.S. Army declined to file a response challenging Behenna's latest appeal, relying on its arguments to the Army criminal appeals court that no favorable evidence was withheld from the defense and that the “overwhelming evidence” in the case showed that Behenna “gave up his right to self-defense.”
Should the appeals court decide to review Behenna's case, it may require oral arguments before making a decision, which likely would likely come some months later. Behenna has served about 2½ years of his sentence.