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U.S. military's top court agrees to hear Edmond soldier's appeal

Oklahoma soldier Michael Behenna will get another chance to prove he didn't get a fair trial before his conviction on a charge of unpremeditated murder in a combat zone. The top military appeals court will hear same arguments rejected by Army appeals court last summer.
BY CHRIS CASTEEL Modified: January 13, 2012 at 9:03 pm •  Published: January 13, 2012

— The U.S. Court of Appeals for the Armed Forces agreed Friday to hear the appeal of 1st Lt. Michael Behenna, giving the Edmond soldier another chance to have his conviction overturned for unpremeditated murder in a combat zone.

In a brief order, the military's top appellate court said it would consider whether prosecutors in the 2009 court-martial withheld evidence that might have helped Behenna's case and whether the judge gave erroneous instructions to the jury on Behenna's claim of self-defense.

Behenna, 28, is serving a 15-year sentence at Fort Leavenworth, Kan., for killing an Iraqi man that he'd suspected of terrorism.

It was a high hurdle to get acceptance of the appeal from the military's highest appellate court, which accepts only a fraction of the cases submitted.

Had the court not taken the case, Behenna would have been out of legal avenues for appeals.

The court's decision to take the case came a day after Behenna was notified that his latest request for a sentence reduction had been denied by the U.S. Army Clemency and Parole Board. It was the second straight year that the board declined to reduce his sentence.

Behenna's parents, Scott and Vicki, of Edmond, appeared before the board on Jan. 5 to argue, as they have in previous years, that a reduction was justified because Behenna's sentence exceeded that given in any similar case.

Vicki Behenna said Friday that she hopes the military appeals court took her son's case because the judges believe his trial was flawed.

“My first response was ‘Thank God,' because I feel like we're not at the end of the line because some court will decide he wasn't given a fair trial,” she said.

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