Two Years Ago And The Army Still Drags Its Feet: Prominent Oklahomans Seek New Behenna Trial

(From June 3, 2009) An impressive list of prominent Oklahomans has written Secretary of the Army Pete Geren to request a new trial for Lt. Michael Behenna of Edmond, the 101st Airborne soldier convicted of killing an Al Qaidi operative in Iraq.

The Behenna case was marred by what appears to be prosecutorial misconduct when evidence from the prosecution's own forensics expert favorable to Behenna was ignored and withheld from the military tribunal until the trial was over.

Here is the text of the letter:

"Dear Secretary Geren: We write to seek your help in preventing a miscarriage of justice. We believe a new trial is required in the case of United States v. Michael C. Behenna in order to comply with fundamental due process.

"1LT Michael Behenna, a platoon leader in the 101st Airborne Division, was
charged with premeditated murder and other military crimes relating to the detention and
death of an Iraqi national. Critical evidence that supports 1LT Behenna’s testimony that
he shot the individual in self defense was not presented at the military trial. 1LT
Behenna was acquitted of premeditated murder but was found guilty of unpremeditated
murder and is in custody awaiting final sentencing.

"The following are undisputed facts important to understanding our position that a new trial is warranted:

"● The government’s theory of the case is that 1LT Behenna shot Ali Mansur “execution style” with a first shot to the head and a second shot to the torso. 1LT Behenna’s defense is that he shot Mansur in self-defense as Mansur approached Behenna with his arms raised.

"● The government hired prominent forensics expert Dr. Herbert MacDonell to advise them during the case and to potentially call as a witness.

"● As the case unfolded, and before the government rested its case-in-chief, Dr. MacDonell advised the prosecutors that it was possible that Mansur was standing with his arms raised and was first shot through the torso and secondly shot in the head as he fell. Dr. MacDonell demonstrated this scenario to the prosecutors using prosecution team personnel.

"● After 1LT Behenna testified, Dr. MacDonell again advised another government expert that the forensics of the entry wounds support Behenna’s testimony. The government did not disclose to the defense the fact that their own expert had concluded that Behenna’s version was not just possible but was the “only logical” explanation consistent with the forensic evidence, despite formal requests from Behenna’s counsel before and during the trial for Brady material – evidence potentially favorable to the accused as to guilt or sentencing.

"● The case then proceeded to closing argument without the benefit of Dr. MacDonell’s testimony. In fact, the government argued in closing that Behenna’s version of events was so implausible that the government did not need to call a rebuttal witness when, in fact, Dr. MacDonell was retained in part for the contingency of being such a rebuttal witness. Only after Dr. MacDonell pressed the issue with the prosecutors by sending them an email did the prosecutors disclose his opinion that: '[T]he only logical explanation for this shooting . . .[is] that Ali Mansur had to have been shot in his chest when he was standing. . . . [I]t fits the facts and I can not think of a more logical explanation. [W]hen I heard Lt. Michael Behenna testify . . . I could not believe how close it was to the scenario I had described to you on Wednesday.'

"● This email with its critical content was produced to Behenna’s defense team after the court members (what civilians call the “jury”) had already returned a guilty verdict. Therefore, the court members never learned of Dr. MacDonell’s exculpatory conclusions for their deliberations on guilt or sentencing.

"● The government opposed 1LT Behenna’s new trial, stating in its brief: 'Dr. MacDonell’s opinion that 1LT Behenna’s account was the only logical explanation of the shooting, albeit extremely unlikely or an amazing coincidence, would not have produced a substantially more favorable result for the Accused.'

"● The trial judge reached a similar conclusion. Without specifically finding there was not a Brady violation with respect to the failure to disclose Dr. MacDonell’s conclusions after 1LT Behenna testified, the trial judge ruled, in essence, that 'there is no reasonable probability' admission of Dr. MacDonell’s expert opinion would have led to a more favorable result for 1LT Behenna. With all due respect to the trial judge, we believe it is rank speculation to pretend that even an experienced jurist can know how the court members would react to this startling fact – that the government’s own expert, renowned in the field of forensics, concluded the defense’s theory of the case was 'the only logical explanation for this shooting …

"In addition, such a finding ignores how the introduction of such evidence would have limited the government’s closing argument and bolstered the defenses. To pretend one can know whether the introduction of Dr. MacDonell’s expert opinion would not have changed the outcome flies in the face of the concept of reasonable doubt, a pillar of the American society that 1LT Behenna volunteered to protect. Fortunately, the military justice system allows for an immediate and fair remedy. Pursuant to Rule 1107(c) of the Rules for Courts-Martial, the convening authority set aside any finding of guilt and order for a new trial.

"To be clear, we are not seeking a statement of 1LT Behenna’s innocence on any charge. We are not asking for a dismissal of charges with prejudice like the relief recently afforded former United States Senator Ted Stevens. Although many of us do believe a Brady violation occurred, we are not seeking a finding of misconduct by the prosecutors.
Instead, we simply ask that a new trial be held in which all relevant evidence, including Dr. MacDonell’s testimony, is presented to the fact finders in accordance with due process. Unfortunately, we do not believe such a trial occurred in 1LT Behenna’s case.

"The undersigned are a combination of current or former prosecutors, JAG or other military officers, public defenders, elected officials, law professors, and private sector civil and criminal litigators. We are Democrats, Republicans, and Independents. We all have a stake in seeing due process work in any tribunal, but especially in a proceeding dealing with the loss of life in a combat zone during a war being fought in the very name of the American system of government.

"Sincerely,

[See attachment for list of signatories]
Cc: Dr. Robert Gates, U.S. Secretary of Defense
U.S. Senator Jim Inhofe
U.S. Senator Tom Coburn
U.S. Representative Dan Boren
U.S. Representative Tom Cole
U.S. Representative Mary Fallin
U.S. Representative Frank Lucas
U.S. Representative John Sullivan

Signatories
David Boren
Former U.S. Senator and former Chairman of the
U.S. Senate Select Committee on Intelligence
Norman, Oklahoma
Pat Ryan
Partner, Ryan Whaley Coldiron Shandy
Former U.S. Attorney for the Western District of
Oklahoma (1995-1999)
Former JAG trial counsel, United States Air
Force
Oklahoma City, Oklahoma
Robert McCampbell
Partner, Crowe & Dunleavy
Former U.S. Attorney for the Western District of
Oklahoma (2001-2005)
Oklahoma City, Oklahoma
Dan Webber
Partner, Ryan Whaley Coldiron Shandy
Former U.S. Attorney for the Western District of
Oklahoma (1999-2001)
Oklahoma City, Oklahoma
David Prater
District Attorney of Oklahoma County,
Oklahoma City, Oklahoma
Henry Hockheimer
Partner, Ballard, Spahr, Andrews & Ingersoll
Former Assistant U.S. Attorney
Philadelphia, Pennsylvania
Robert L. Wyatt, IV
Wyatt Law Office
Member of the Board of Directors of the
Oklahoma Criminal Defense Lawyers
Association (OCDLA); Life Member, National
Association of Criminal Defense Lawyers
(NACDL)
Oklahoma City, Oklahoma
Wes Lane
President, Burbridge Foundation
Former District Attorney of Oklahoma County,
Oklahoma City, Oklahoma
Drew Neville
Partner, Hartzog Conger Cason Neville
Former Assistant U.S. Attorney for the Western
District of Oklahoma
Oklahoma City, Oklahoma
Drew Edmondson
Attorney General, State of Oklahoma
Oklahoma City, Oklahoma
Michael Madigan
Partner, Orrick, Herrington & Sutcliffe LLP,
Former Assistant U.S. Attorney and former
Counsel to the Senate Watergate Committee
Washington, D.C.
Andrew Coats
Dean, University of Oklahoma College of Law;
former District Attorney for Oklahoma County;
former President of the Oklahoma Bar
Association; former President of the American
College of Trial Lawyers
Norman, Oklahoma
William S. “Bill” Price
Of Counsel, Phillips Murrah P.C.
Former U.S. Attorney for the Western District of
Oklahoma (1982-1989)
Oklahoma City, Oklahoma
Lanny Davis
Partner, Orrick, Herrington & Sutcliffe
Former Special Counsel to President Clinton
Washington, D.C.
Bob Ravitz
Public Defender for Oklahoma County
Oklahoma City, Oklahoma
David Ogle
Ogle Law Office
Former President of the Oklahoma Criminal
Defense Lawyers Association (OCDLA); Life
member of the National Association of Criminal
Defense Lawyers (NACDL)
Oklahoma City, Oklahoma
Rand Eddy
Managing Partner, Eddy Law Firm; former
Assistant Federal Public Defender for the
Western District of Oklahoma; former Assistant
Public Defender, Oklahoma County, Oklahoma
Oklahoma City, Oklahoma
Dennis A. Smith
Oklahoma District II District Attorney
Former President, Oklahoma District Attorney's
Association
Arapaho, Oklahoma
John W. Gile
Attorney At Law
Edmond, Oklahoma
Warren F. Bickford
Partner, Fellers Snider Blankenship Bailey &
Tippens
Oklahoma City, Oklahoma
John Coyle
Coyle & Coyle
Oklahoma City, Oklahoma
Mack Martin
Martin Law Office
Oklahoma City, Oklahoma
Jack Dawson
Miller Dollarhide Dawson & Shaw
Oklahoma City, Oklahoma
Stephen Jones
Jones, Otjen, Davis, & Tebow
Enid, Oklahoma
Ross N. Lillard III, Esquire
Captain, United States Army (retired)
Oklahoma City, Oklahoma
Reid Robison
Stockholder and Vice-President, McAfee & Taft;
former Assistant Attorney General, State of
Oklahoma; Captain, United States Air Force
JAG Corps (retired)
Jim Kirk
Partner, Kirk & Chaney
President, Oklahoma County Bar Association
Oklahoma City, Oklahoma"

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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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Former Prosecutor Rips Behenna Case Handling

Former federal prosecutor Robert McCampbell (right) of Oklahoma City said today the failure of military prosecutors to reveal exculpatory evidence in the murder trial of Lt. Michael Behenna of Edmond constitutes a failure of the legal system.

McCampbell told Reid Mullins of KTOK this morning that the first thing a lawyer learns is that prosecutors have a responsibility to disclose all evidence and seek the truth. Withholding evidence, he said, diminishes the legal system.

McCampbell cited several legal cases in which evidence was withheld. In the Behenna case, military prosecutors failed to disclose that their own expert witness concluded that Behenna likely acted in self defense when he shot and killed an Al Qaida operative in Iraq last year, and for that reason, that did not call him as a witness. They also did not disclose his opinion to Behenna's attorney. Behenna was convicted of murder and faces years in federal prison. His conviction is being appealed.

Several groups of veterans have come to Behenna's defense and urged members to donate to a legal defense fund. For details, go to http://defendmichael.wordpress.com/.

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Military Combat Defense Fund Aids Behenna

The Military Combat Defense Fund (MCDF) has donated to help in the appeals process for Edmond Army Lt. Michael Behenna, convicted in the 2008 death of an Al Qaida operative in Iraq.

The fund is composed of retired military personnel, most of them wounded in action in Vietnam.

Behenna was convicted of murder by a military tribunal and faces years in a federal prison. His conviction, and sentence, has angered many, including those involved in the MCDF.

Following Behenna's conviction, it was revealed that military prosecutors withheld from his defense team exculpatory evidence from a prosecution expert. That evidence calls into question the entire prosecution theory of what transpired when Behenna shot the Al Qaida operative.

Behenna's case will be appealed to the Army's Court of Appeals in Washington and a defense fund to help has been established. For more information, go to http://defendmichael.wordpress.com/.

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