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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Justice Denied? Behenna Case Angers Many

Compliled From News Reports ~ While attorneys for Army Lt. Michael Behenna of Edmond plan an appeal of his military court conviction of murder in the death of an Al Qaida member in Iraq, there's growing anger over the failure of military prosecutors to disclose expert evidence favorable to him.

A military court on Feb. 27 found Behenna (pictured with his family at his Army Ranger graduation) guilty of murdering al-Qaida operative Ali Mansur Mohammed in Iraq on May 16, 2008 during a field interrogation. Behenna, 25, an infantry platoon leader in the 101st Airborne Division, maintains the shooting was in self-defense.

The seven-member panel that convicted Behenna rejected that claim, but new information indicates the court may not have heard the whole story. On the day the verdict came down, the government's own forensics expert, Dr. Herbert L. MacDonell, told Army prosecutor Capt. Meghan M. Poirier that he had changed his mind and now believes Behenna killed Ali Mansur in self-defense.

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 and I can not think of a more logical explanation.”

The Army lawyers prosecuting Behenna had a legal duty to reveal such “exculpatory evidence” that could clear Behenna to the defense and failed to do so, Behenna’s lawyer Jack Zimmermann said.

Behenna detained Ali Mansur Mohammed on May 5, 2008. Mohammed was a suspect in the April 21, 2008 roadside bombing that killed platoon members Spec. Steven J. Christofferson, 20, of Cudahy, Wis., and Sgt. Adam J. Kohlhaas, 26, of Perryville, Mo.

While transporting the prisoner, Behenna testified, he drove Mohammed to a secluded area to interrogate him after conferring with the local Sunni “Sons of Iraq” leader. Behenna was accompanied by an Iraqi interpreter identified only as “Harry,” and Army Staff Sgt. Hal C. Warner, his platoon sergeant.

After being forced to strip naked, Mohammed rose and tried to wrestle away Behenna’s pistol. Behenna claimed he reflexively fired, striking Ali Mansur first in the chest and again in the forehead.

Warner and Harry testified they did not witness the shooting.

The government argued Behenna shot Ali Mansur Mohammed first in the head and then in the chest while he was sitting down. The crime scene was partially obliterated when Warner placed an incendiary grenade on Mohammed's body after the shooting.

Warner subsequently pled guilty to mistreating Mohammed before Behenna’s trial and is currently serving a 17-month sentence at Ft. Sill. Before making a deal with prosecutors, he faced life in prison without parole for first-degree murder. Warner, a three-tour Iraqi veteran, testified againt Behenna at his court-martial.

During the trial, the prosecution argued that Behenna’s self defense claim was “incredible,” and “impossible,” because Mohammed was undoubtedly first shot in the head while sitting.

MacDonell, a world renowned forensic specialist, has investigated such high profile cases as the Martin Luther King assassination, the murder of Robert Kennedy, and the O.J. Simpson double murder case.

“This scenario is consistent with the two shots being close together, consistent with their horizontal trajectory, consistent with the bloodstains on the floor, and consistent with the condition of the 9 mm flattened out bullet which was tumbling after leaving Ali Mansur's head or body,” MacDonell surmised. “I do not know where this bullet was recovered but I would expect that after impact to the concrete wall it fell very close to that wall. The other bullet should have been close to the first and there should have been two impact points on the wall.

MacDonell revealed his discomfort to Zimmermann as he was leaving the courtroom after testifying against Behenna during the court martial.

“I would have been a good witness for you,” MacDonell confided in Zimmermann on his way into the court room the day before Behenna was convicted.

“Why is that?" the always laconic Zimmermann responded.

“I can’t tell you. I was retained by the prosecution. I will write you after the trial,” MacDonell replied.

The next morning Zimmermann asked the three Army lawyers prosecuting Behenna if they were aware of any evidence offered by MacDonell that could help exonerate Behenna. They denied knowledge of any exculpatory evidence, Zimmermann says.

The government “specifically addressed the forensic evidence in a manner that was completely contrary to Dr. MacDonell’s withheld exculpatory expert opinion,” Zimmermann said in his motion for mistrial.

Ironically, MacDonell testified in the federal trial of infamous Oklahoma bomber Timothy McVeigh. Behenna’s mother Vicki, is an assistant U.S. attorney in Oklahoma City who helped convict McVeigh in April 1995 of planting a homemade truck bomb that claimed 168 lives and left over 800 people injured.

“We think the judge erred,” Zimmermann said. “MacDonell’s conclusions will be very useful in his appeal.”

Military law mandates that murder sentences be automatically reviewed in the Army Court of Appeals in Washington.

Behenna's family and friends have established a website and defense fund. For more information, go to http://defendmichael.wordpress.com/.

Among sources for this article are Newsmax, CNN, and The Associated Press.

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