WASHINGTON — A military appeals court has upheld Lt. Michael Behenna's conviction of unpremeditated murder in a combat zone, unanimously rejecting his claims that he received an unfair trial for killing an Iraqi man he suspected of being a terrorist.
A three-judge panel of the U.S. Army Court of Criminal Appeals also upheld Behenna's 15-year sentence, which the Edmond native is serving at a military prison at Fort Leavenworth, Kan.
Behenna, who was seeking a new trial, is planning to appeal the decision to the U.S. Court of Appeals for the Armed Forces, his mother said Wednesday. A military justice expert said the court does not have to accept the case and that, if it doesn't, Behenna will have no more legal avenues to pursue his appeals.
Behenna's arguments to the Army appeals court focused on whether prosecutors improperly withheld evidence favorable to him and whether the judge correctly instructed the court-martial panel — the jury — on how to weigh Behenna's claim of self-defense.
The appeals court rejected all of the arguments, ruling that no evidence was deliberately withheld and that, had it been given, “it would not have changed the outcome of the trial beyond a reasonable doubt.”
The court said the judge properly told jury members that Behenna had no right to claim self-defense if they found beyond a reasonable doubt that he had assaulted the Iraqi without provocation or legal justification.
Behenna originally was sentenced to 25 years, though a judge reduced that to 20 years. He also received a five-year sentence reduction from a military clemency board in early 2010; the board declined to make another reduction in December.
Vicki Behenna said her son was disappointed in the decision, but already is looking to the next appeal.
“He is like Bozo the clown,” she said. “He keeps getting punched in the nose, and he keeps coming back.”
Right to self-defense
Michael Behenna was a platoon leader in Iraq when he killed Ali Mansur in 2008. Behenna suspected Mansur had been involved in an attack that killed two of his platoon members and wounded two others. He and members of his platoon took Mansur to a remote area, where Behenna cut off his clothes, had him sit on a rock and threatened him with a pistol.
At trial, Behenna conceded that he didn't have the legal authority to question Mansur, but said he shot him in self-defense after Mansur jumped up and reached for his gun.
Two eyewitnesses testified for the government that Mansur had been sitting when Behenna shot him, while two forensic experts testifying for the defense said Mansur had likely been standing.
A forensic expert witness for the government was never called to testify, but told Behenna's attorney — near the trial's conclusion — that he would have made a good witness for them. Questioned by Behenna's attorneys, prosecutors said they didn't know what he was talking about.
Both sides learned on the last day of the trial that the expert would have testified that Behenna's story was supported by crime scene evidence. The judge denied a motion for mistrial and said he wouldn't have approved a motion by Behenna's attorneys to compel testimony from the expert.
The appeals court said it agreed with the trial judge's opinion that the overwhelming evidence in the case showed Behenna assaulted Mansur with a pistol while threatening to kill him and that no expert testimony about self-defense would have made a difference because Behenna gave up his right to self-defense.
Mother warns of dangerous precedent
Vicki Behenna, who is a federal prosecutor in Oklahoma City, said she found the appeals court's reasoning “disturbing,” since the expert's testimony would have corroborated that of two defense experts and given her son's self-defense claim more credibility.
She also said the court's conclusions regarding self-defense set “a very dangerous precedent” for soldiers and wouldn't apply in the civilian world.
Under the court's decision, she said, soldiers who were searching a house they weren't authorized to search couldn't defend themselves if they were attacked inside the house.
Michelle Lindo McCluer, director of the National Institute of Military Justice, said Wednesday that Behenna had a high hurdle at trial to prove self-defense under the circumstances and a high hurdle in the appeal to show the trial judge erred or abused his discretion.
A former prosecutor and defense attorney in the military justice system, McCluer said she was uncertain if the U.S. Court of Appeals for the Armed Forces would take Behenna's appeal.
The case, which has drawn national attention, was unusual in that there are not many in which officers are charged with battlefield crimes, she said. Two of the five civilian judges on the court must vote to accept a case, she said, and they would be looking at whether there were legal or procedural questions that had to be addressed.
If the court does not take the case, she said, Behenna can't appeal to the U.S. Supreme Court.