Top military appeals court to hear arguments in 1st Lt. Michael Behenna's case

The National Association of Criminal Defense Lawyers and the National Institute of Military Justice have filed briefs with the U.S. Court of Appeals for the Armed Forces saying the case should be used to establish a clear rule for when military prosecutors must turn over evidence to defense attorneys.

The “primary ethical duty of a prosecutor — military or civilian — (is) to seek justice, not convictions, something that appears to have been overlooked” at Behenna's trial, the criminal defense lawyers' group says in its brief.

The military court of appeals is scheduled to hear arguments in Behenna's case Monday in Washington. The appeals court took Behenna's case to determine whether prosecutors erred in not turning over evidence at the 2009 trial and whether the trial judge properly instructed the jury regarding Behenna's claim of self-defense.

Behenna's case has drawn national attention for its unusual circumstances — a military officer charged with murder in a combat zone of a man he suspected of terrorist activities. Behenna's parents, Scott and Vicki, of Edmond, have pursued numerous legal and political avenues to help their son and said in a website posting last week that they were hoping “all of our prayers will be answered.”

Behenna, 28, is serving a 15-year sentence at a military prison in Fort Leavenworth, Kan., for unpremeditated murder in a combat zone in Iraq. In 2008, Behenna shot an unarmed Iraqi man he had suspected of being involved in an attack that killed two of his platoon members.

Behenna forced the man, Ali Mansur, to strip naked and sit on a rock before pointing a gun at him and interrogating him.

He shot Mansur twice and testified at his trial that he did so in self-defense because the man had thrown a piece of concrete at him and reached for his weapon.

A translator who was watching the scene testified at the trial that Mansur had not made any sudden movements.

At the trial, a crime scene expert, Herbert MacDonell, was part of the government's slate of witnesses but was never called to testify.

According to Army attorneys, MacDonell believed during most of the trial that there were multiple possibilities regarding Mansur's posture when shot.