WASHINGTON — The nation's highest military court on Thursday narrowly upheld 1st Lt. Michael Behenna's conviction of unpremeditated murder in a combat zone, rejecting the Edmond soldier's claims that he had been denied a fair trial.
The 3-2 decision by the United States Court of Appeals for the Armed Forces marked the second time in the past year that a military appeals court has upheld Behenna's conviction for killing an Iraqi civilian during an interrogation in 2008.
Behenna, 29, who is serving a 15-year sentence at a military prison in Fort Leavenworth, Kan., can appeal to the U.S. Supreme Court.
Behenna claimed at his 2009 court martial that he shot Ali Mansur, a suspected terrorist, in self-defense after Mansur threw a rock at him and reached for Behenna's gun; in his appeal, Behenna said the judge in the court martial mangled the instructions to the jury and deprived him of his self-defense claim.
Behenna also argued that prosecutors violated his rights by not telling him that their expert witness on crime scenes, who was never called to testify, would have supported his version of events.
The decision issued Thursday in the closely watched case agrees that the judge gave an erroneous instruction on the self-defense claim, but says it was irrelevant to the outcome because Behenna, who was pointing a gun at an unarmed and naked prisoner, had given up his right to self-defense.
Moreover, the four judges ruled that the expert witness would have had little impact on the outcome had he testified.
Ultimately, the court said, the jury “clearly rejected the Government's theory of the case — a premeditated, execution-style killing — when they returned a verdict that (Behenna) was guilty of unpremeditated murder.”
In a strongly worded dissent, two judges on the court argued that Behenna should get a new trial.
“A death occurred in the theater of operations,” the dissent says. “A soldier has been convicted of murder. Was it murder or self-defense?
“By law, the responsibility for making that factual determination rested with the court-martial panel, not with this Court. The ambiguous, confusing, and incorrect instructions from the military judge deprived (Behenna) of the right to have a panel of officers make that decision.
“The military judge compounded that error by failing to take corrective action with respect to the Government's failure to provide timely disclosure of exculpatory evidence.”
Behenna's case has attracted national attention, and his parents, Scott and Vicki Behenna, have mounted a tireless effort to get their son's sentence reduced and to raise money for his appeals. Vicki Behenna is a federal prosecutor in Oklahoma City, and Scott is a former investigator for the Oklahoma State Bureau of Investigation.
Neither could be reached for comment Thursday.
The decision issued Thursday confirms the one from the U.S. Army Court of Criminal Appeals, which came down last July.
The court said Thursday that Behenna couldn't claim self-defense under the circumstances unless Mansur escalated the conflict or Behenna tried to withdraw from the situation and was then attacked by Mansur.
“Even assuming for a moment that Mansur could have escalated the level of force, we conclude that a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at an initial aggressor in full battle attire, armed with a loaded pistol, and lunges for the pistol,” the court said.
There was no evidence that Behenna indicated he wanted to withdraw from the situation or that he made a good-faith effort to withdraw, the court said.
However, the dissenters on the court said Behenna didn't sacrifice his right to self-defense just because he may have been conducting “an improper and abusive interrogation.”
Because the judge in the court martial gave the jury confusing and erroneous instructions regarding self-defense, the jury wasn't able to consider the issue properly, the dissenting judges said in arguing for a new trial for Behenna.