Justice Denied? Why Did Behenna Military Prosecutor Ignore Attorney's Code Of Ethics?

Army Captain Meghan Poirier of the Judge Advocate General Corps is a skilled attorney. She's a graduate of the Wake Forest School of Law and West Point.

So, some now ask, why did this well-educated and skilled military prosecutor ignore one of the basic tenets of the law, military or civilian, by failing to inform a defense attorney or the court of information that pointed to the innocence of an Army lieutenant she was prosecuting for murder?

It's a question being asked by many following the conviction of Edmond Lt. Michael Behenna on charges he murdered an Al Qaida operative, Ali Mansur, in Iraq last year. Behenna said he acted in self-defense as the operative stood to attack him. Poirier argued Behenna executed the operative while he was seated on the ground being interrogated by Behenna, who had lost two of his men in an Al Qaida attack.

One of Poirier's expert witnesses in the case was forensics expert Dr. Herbert L. MacDonell. He was listed as a prosecution witness, but was not called to testify. After Behenna's conviction and before his sentencing by a military tribunal, MacDonell told Behenna's defense attorney that his expert opinion favored Behenna's version of events but the prosecution was sending him home and he would not testify. MacDonell obviously realized HIS duty to reveal his favorable expert opinion to Behenna's defense attorney.

The tribunal denied a new trial, but requested the convening authority to reduce Behenna's sentence from 25 years to a sentence not more than 18 years.

MacDonell's opinion now forms the basis for an appeal by Behenna's civilian defense team to the Army Court of Appeals in Washington.

In a letter dated February 27, 2009, MacDonell told Poirier he was “concerned that I did not testify and have a chance to inform the court of the only logical explanation for this shooting. From the evidence I feel that Ali Mansur had to have been shot in his chest when he was standing. As he dropped straight down he was shot again at the very instant that his head passed in front of the muzzle,” MacDonell wrote. “It fits the facts (as described by Behenna) and I can not think of a more logical explanation.”

MacDonell, acclaimed and respected, has conducted important research and investigation in the field of forensic science for over 40 years. He is the inventor of the MAGNA Brush fingerprint device, and is considered an expert in blood splatter analysis. MacDonell has written and lectured about a wide range of forensic science topics, and has consulted on several high-profile criminal cases, including the O. J. Simpson trial and the murders of Dr. Martin Luther King Jr. and Robert F. Kennedy.

Poirier and Army lawyers prosecuting Behenna had a legal duty to reveal to the defense MacDonell's expert opinion of “exculpatory evidence” that could clear Behenna and failed to do so, Behenna’s appeals lawyer Jack Zimmermann of Houston said.

From the American Bar Association's Code of Ethics: Rule 3.8 Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall: (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal....

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