Behenna Case Just The Tip Of The Iceberg? Prosecutorial Misconduct Becoming A Major Issue

While Army Lt. Michael Behenna of Edmond sits in a cell at Fort Leavenworth, Kansas, serving time in the death of an Al Qaida operative in Iraq, it's becoming evident that his is just the latest in a string of controversial cases in which alleged prosecutorial misconduct and withheld evidence played a major role.

The Behenna case has shaken confidence in the military justice system and fueled what, by all accounts, is a flood of protest calls, letters and emails to members of Congress, the Army and others from across the country. For more information, go to http://www.defendmichael.wordpress.com/.

Behenna's conviction by a military tribunal is being appealed based on evidence from the prosecution's own forensics expert that was withheld from Behenna's defense team and the members of the tribunal until his trial was over. The expert told Behenna's attorneys he agrees with Behenna's version of events that resulted in the death of Ali Mansur, believed to be one of the leaders of an attack on Behenna's platoon that resulted in two of his men being killed. The prosecution claimed Behenna executed Mansur; the defense said Behenna, earlier fast-tracked for promotion because of his combat leadership skills and excellent service record, shot Mansur when Mansur attacked him as he was being questioned, and the forensics expert hired by the prosecution agreed with Behenna's account. The prosecution did not call its own expert to testify, but the expert, Dr. Herbert L. MacDonell, told defense attorneys of his concern about the evidence being withheld. An appeal by Behenna's attorneys resulted in the trial judge recommending a reduction in the 25 year sentence to 18 years; that decision will be made by the Convening Authority (Army general) within a couple of months.

The Legal Definition Of Prosecutorial Misconduct: "Failing to disclose evidence that might tend to exonerate the defendant."

While attention is increasingly focused on the Behenna case by military associations, veterans groups, bloggers and legal experts, some federal judges have taken steps to correct what they see as prosecutorial misconduct in several cases. Ironically, Behenna's mother, Vicki Behenna, is a federal prosecutor in Oklahoma City. His father, Scott, is a retired special agent with the Oklahoma State Bureau of Investigation.

The Senator Ted Stevens case in Alaska is only the latest example, one in which Judge Emmet Sullivan threw out Stevens’ conviction and launched a criminal contempt investigation against a half-dozen federal prosecutors, calling their actions “shocking and disturbing.”

Attorney General Eric Holder announced Tuesday he’s replacing the head of the office that investigates misconduct by Justice Department attorneys, just a day after Sullivan publicly complained about the unit’s slow pace. But other federal judges, too, are complaining about the work done by Justice Department prosecutors.

• Federal Judge Colleen Kollar-Kotelly recently removed a Justice Department lawyer from a Guantanamo detainee case for flouting several deadlines, then lambasted his supervisor for submitting a “shockingly revisionist” sequence of events to the court.

• In Miami last month, federal Judge Alan Gold complained of "flagrant violations" by prosecutors who did not disclose the existence of secret recordings of a defense lawyer for a doctor charged with prescription fraud.

• Another federal judge in Washington, John Bates, last year cited a failure to turn over evidence as he ordered a new trial for a man convicted of illegal business dealings with Iran. Bates said he had “grave concerns” about the government’s actions, which “severely prejudiced” the defendant’s fair trial rights.

• And in a separate Gitmo case, Sullivan also lashed out at the government, vowing that “someone’s going to pay a price” for withholding evidence.

What’s remarkable about several of those cases is that judges – usually loath to interfere in the mechanics of the prosecution or the defense — took the dramatic step of removing Justice Department lawyers, or simply throwing out verdicts in cases that began during the prior administration. This repeated criticism delivered to DOJ attorneys suggests they are facing a credibility gap, particularly before judges in the Capital—and perhaps elsewhere in the country as well—that could have profound effects in a variety of other cases.

Attorneys said that in the wake of the Stevens imbroglio, prosecutions of public officials, undertaken by Justice’s Public Integrity Section, are likely to face particular scrutiny from judges and defense lawyers.

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