However, when Behenna testified about Mansur reaching for his gun, MacDonell was listening and apparently decided that Behenna's story explained evidence at the scene.
As he was leaving the trial, without testifying, MacDonell told Behenna's attorney that he would have made a good witness for him; he would not elaborate. When Behenna's attorney confronted the Army prosecutor about it, the prosecutor said he didn't know what MacDonell meant and that he had turned over all evidence to the defense.
MacDonell later sent an email to an Army prosecutor to express his concern that the defense didn't know about his opinion. The prosecutor forwarded the email to Behenna's attorney, who asked for a mistrial the next day.
The trial judge ultimately denied the mistrial, and the U.S. Army's appeals court upheld the trial judge's ruling.
Behenna's fate could ultimately rest on whether the U.S. Court of Appeals decides Army prosecutors should have said something earlier to Behenna's attorneys about MacDonell's views.
Changed his mind
Army attorneys contend in a court brief that the prosecutors never knew MacDonell had changed his mind after hearing Behenna testify until MacDonell had returned home and sent an email about it. At that point, they say, the email was immediately turned over to the defense.
Moreover, the Army attorneys say, the lower courts correctly decided that MacDonell's testimony would have been impermissible if he had based his opinion on Behenna's story rather than the crime scene evidence.
Behenna's attorneys say the Army attorneys are misrepresenting the truth, even now. MacDonell didn't change his opinion, they say, and in fact had demonstrated in a closed meeting with prosecutors the scenario Behenna later described in his testimony.
MacDonell should have been allowed to testify to give the same demonstration to jurors that he gave to prosecutors, Behenna's attorneys say.
The National Association of Criminal Defense Lawyers says in its brief that Behenna's conviction hinges upon the “unconscionable premise” that he executed Mansur. However, the group says, the Army didn't have the evidence to support that, and the jury rejected it with a verdict of unpremeditated murder.
“The prosecution's hypothesis, driven home during its closing argument, was unconscionable because all three trial Counsel were privy to Dr. MacDonell's favorable opinion and demonstration which was consistent with (Behenna's) theory of self-defense,'' the defense lawyers group says in its brief.
“Equally as important, the government possessed no evidence rebutting