WASHINGTON — 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.
The U.S. Army Court of Criminal Appeals in July upheld Behenna's conviction and sentence, rejecting arguments that prosecutors and the judge in his 2009 court-martial had effectively deprived Behenna of his defense — that he had shot Ali Mansur in Iraq in 2008 because Mansur was reaching for Behenna's gun.
The appeal filed in October with the U.S. Court of Appeals for the Armed Forces raises the same legal issues that were before the Army appeals court.
Behenna's civilian attorneys say prosecutors and the judge in the court-martial made mistakes that deprived Behenna of a fair trial.
They contend prosecutors improperly failed to disclose that one of their own witnesses — a crime scene expert who was never called to testify — would have supported Behenna's story that Mansur was standing and reaching for Behenna's gun when the soldier shot him.
And the judge in the original court-martial obscured distinct legal points of self-defense when he gave the jury instructions on how to consider a verdict, the appeal argues.
The U.S. Army declined last fall to file a response challenging Behenna's latest appeal, relying on its arguments to the Army criminal appeals court that no favorable evidence was withheld from the defense and that the “overwhelming evidence” in the case showed that Behenna “gave up his right to self-defense” because he was armed and pointing a gun at Mansur, who was naked and unarmed when killed.