Weight Of Behenna Case On General's Shoulders

The commanding general of the 101st Airborne Division, Brigadier General Stephen Townsend (in black) of Ft. Campbell, Kentucky, now has the weight of the clemency case for Lt. Michael Behenna of Edmond on his shoulders.

Behenna is now serving a 25-year sentence after being convicted by a military tribunal of killing a known Al Qaida operative in Iraq. His case became a nationwide cause when it was revealed that military prosecutors knowingly withheld evidence favorable to him until the trial was over. That evidence came from the prosecution's own forensics expert, who said Behenna's explanation of how Ali Mansur died fit the evidence. The prosecution did not call the expert to testify and sent him home. He revealed his findings to Behenna's defense attorneys after the trial was over. An appeal to the tribunal based on the withholding of exculpatory evidence was dismissed.

Now, an appeal for clemency has been prepared by his attorneys and presented to Townsend, who has the option of ordering a new trial, dismissing the case entirely, or modifying Behenna's sentence. The tribunal, after hearing the appeal, did recommend a reduction in the sentence.

Recently, dozens of well-known Oklahomans, including University of Oklahoma President David Boren, Attorney General Drew Edmondson, Oklahoma County District Attorney David Prater and a number of former federal prosecutors, wrote the Secretary of the Army asking him to order a new trial.

Senator Jim Inhofe and Congresswoman Mary Fallin have expressed their concern about the (mis)handling of the case to military officials.

Others have declared it a clear case of prosecutorial misconduct.

Meanwhile, a petition calling for action has drawn more than 2,600 signatures and can be signed at http://www.defendmichael.com/.

Behenna, the son of federal prosecutor Vicki Behenna and retired OSBI agent Scott Behenna, had been recognized for his combat leadership before he was charged in the death of Mansur.

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2nd Amendment Expert On Pharmacy Shooting: 'Imminent threat' Means Just That

Nationally-recognized 2nd Amendment expert Howard Nemerov of Austin, Texas, weighs in on the Oklahoma City pharmacy shooting with an analysis in three parts that focuses on what the law says about "imminent danger" facing law-abiding citizens and what justifies, and does not justify, the use of deadly force.

Read Nemerov's reports at http://www.examiner.com/x-2879-Austin-Gun-Rights-Examiner~y2009m6d2-Justifying-deadly-force-Part-1.

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McCampbell: Behenna Should Get New Trial

Former U. S. Attorney Robert McCampbell said today that Army Lt. Michael Behenna, convicted of murder in the death of an Al Qaida operative in Iraq, should, at the least, be given a new trial due to prosecutorial misconduct.

McCampbell appeared on The Verdict with Oklahoma County District Attorney David Prater to discuss the conviction of Behenna, an Edmond native who is the son of federal prosecutor Vicki Behenna and retired OSBI agent Scott Behenna.

Prater said information in the possession of the military prosecutors in the Behenna case favorable to Behenna should have been "immediately" disclosed to Behenna's defense attorneys. Instead, the information was not disclosed until Behenna had been convicted. An appeal to the judge based on the withholding of the information was dismissed.

That information came from the proseuction's own forensics expert, who agreed with Behenna's account of how the death occurred. The expert was not called to testify and was sent home by the prosecutors after he told them of his opinion.

The Behenna case has drawn the attention of Senator Jim Inhofe and Congresswoman Mary Fallin, who have directed questions about the verdict and withheld information to Army officials.

Behenna is now in the federal prison at Ft. Leavenworth, Kansas, serving a 25-year sentence. The commanding general of his 101st Airborne unit at Ft. Campbell, Kentucky, has total control of the eventual outcome of the case. The general can set the verdict aside, dismiss it, order a new trial or reduce Behenna' sentence.

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Prater, Judge Disagree In Ersland Case

Oklahoma County District Attorney David Prater and District Judge Tammy Bass-LeSure argued today over whether accused killer Jerome Ersland should have access to a firearm while at work if he makes the $100,000 bail the judge set.

Prater, who yesterday filed a first degree murder charge against Ersland after viewing videotape of the shooting of robber Antwun Parker, argued Ersland should be able to defend himself and fellow pharmacy employees if another robbery is attempted. The judge disagreed.

The hearing turned contentious when Prater asked the judge not to bar Ersland from access to a gun while at the store. He argued Ersland still has a right to defend himself and pharmacy employees if the store is robbed again.

He said the restriction either meant Ersland would be fired from his job or crooks now know it is "open season" at the pharmacy if Ersland is there. The district attorney said his position sounds crazy but under the law Ersland has the right to protect himself. Courtroom spectators applauded Prater's statement.

The judge refused to change her decision, saying Ersland can get another job. "If somebody wants to be around him, they are not going to have access to a gun," the judge said.

"That's wrong," Prater replied.

The judge ruled that Ersland, 57, of Chickasha will be under house arrest if he makes bail and can only leave his home to go to his doctor, see his attorney, go to court, go to the grocery store, go to restaurants, go to church and to work.

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Police, DA Clear Homeowner In Shooting

Oklahoma City police and District Attorney David Prater have cleared homeowner Scott Henson in the shooting death of an intruder inside Henson's home last week.

Prater said it appears Henson, who holds a license to carry a concealed firearm, was justified in shooting 29-year-old Ronald Penn when he found Penn inside his home when he returned for lunch. Henson said he drew his pistol and fired when Penn made an aggressive move toward him.

Prater's comments in the Henson case came as he discussed the filing of a first degree murder charge against pharmacist Jerome Ersland in the shooting death of an armed robber on May 19th. Prater said Ersland, who also holds a license to carry a concealed firearm, fired five shots at near-point blank range into Antwun Parker after Parker already was incapacitated by a shot to his head. "It's a good example of what not to do," Prater said of Ersland's action.

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Pharmacist Faces 1st Degree Murder Charge

Pharmacist Jerome Ersland of Chickasha has been charged with 1st degree murder in the recent shooting death of an armed robber inside an Oklahoma City pharmacy.

District Attorney David Prater filed the charge after reviewing police reports and, apparently, a videotape from cameras that captured the entire incident.

The videotape, released to the news media by Prater this afternoon, is about 27 seconds long. After Ersland's initital shot at the robbers, one of whom clearly has a pistol in his hand, Ersland pursues the robber with the pistol to the door. The second robber has fallen to the floor, apparently hit by Ersland's shot. The videotape shows Ersland reentering the store, then walking behind the counter, down an aisle way, opening a drawer, removing a pistol, then walking back to the wounded robber, leaning over and shooting him repeatedly. The robber isn't visible in the released videotape, but Ersland firing is visible. Ersland then returns to the counter and calls police.

Prater said Wednesday that the 57-year-old Ersland was justified in shooting Antwun Parker once in the head on May 19. But Prater says Ersland went too far when he shot Parker five more times in the abdomen while Parker lay unconscious on the floor. Ersland's attorney — Irven Box — says Ersland was protecting himself and two women inside the pharmacy.

The charge alleges Ersland repeatedly shot Parker, 16, while Parker was semi-conscious, incapacitated and prone on the floor. Ersland’s account of the incident doesn’t match the video or the evidence collected at the scene, Oklahoma City Police Detective David Jacobson wrote in his affidavit.

Parker was shot once in the head and five times in the stomach area. The autopsy found Parker was still alive after the head shot and died from the stomach wounds. Apparently, it is the stomach wounds, inflicted after the shot to the head, the prompted the filing of the murder charge.

Ersland, holder of a license to carry a concealed firearm, says he acted in self defense when he shot Parker to stop the armed robbery attempt.

Ersland, a disabled veteran, said two armed men in ski masks threatened him and two other employees when they burst into Reliable Discount Pharmacy in south Oklahoma City.

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Behenna Case Draws More Attention

Oklahoma City television station KOKH-Fox 25 recently profiled the case of Edmond Army Lt. Michael Behenna, whose murder conviction in the death of an Al Qaida operative in Iraq is being appealed based on the withholding of evidence favorable to Behenna by military prosecutors.

The KOKH report reiterates the comments of former Oklahoma City federal prosecutor Robert McCampbell, who first spoke about the case on Reid Mullins' morning show on radio station KTOK, and Oklahoma County District Attorney David Prater, who spoke out on The McCarville Report Online. Both men believe the withholding of evidence by the prosecution is an ethical and legal violation and should result in a new trial, or dismissal of his conviction.

Behenna is the son of retired OSBI agent Scott Behenna and federal prosecutor Vicki Behenna.

For more details on the case, see http://www.defendmichael.com/.

View the KOKH report at http://kokh.com/players/news/top_stories/kokh_vid_2290.shtml.

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Prater On Behenna Case: 'The justice system, both civilian and military, is about seeking the truth'

Oklahoma County District Attorney David Prater is "disgusted and angry" about the handling of the Army's prosecution of Lt. Michael Behenna of Edmond.

Prater, in a statement to The McCarville Report Online, said, "As a prosecutor, if the allegations against the military prosecutors are true, I am disgusted and angry. The justice system, both civilian and military, is about seeking the truth, not just convicting the accused. If the military prosecutors failed to disclose exculpatory evidence to the defense team of Lt. Behenna, they have lost all understanding of their duty. As disturbing, is the fact that the military judge did nothing to address this egregious, ethical and moral violation of duty by the prosecutors."

Prater joins former federal prosecutor Robert McCampbell and others in criticizing what appears to be a breach of legal ethics in the case. McCampbell spoke out last week on Reid Mullins' morning show on radio station KTOK.

Behenna, a member of the 101st Airborne and an Army Ranger and the son of federal prosecutor Vicki Behenna and retired Oklahoma State Bureau of Investigation agent Scott Behenna, was convicted in a court martial in the 2008 death of Al Qaida operative Ali Mansur in Iraq.

His conviction is being appealed based on the expert opinion of prosecution witness Dr. Herbert L. MacDonell, who was not called to testify and who says it is his belief that the evidence supports Behenna's defense that he shot Mansur in self-defense when Mansur charged him. The prosecution alleged Behenna executed Mansur while he was on the ground. MacDonell said the forensic evidence supports Behenna's defense and that's why the prosecution did not call him to testify.

MacDonnel revealed his opinion to Behenna's defense counsel. It was not revealed to the military tribunal by the lead prosecutor, Captain Meghan Poirier, until MacDonell sent an email after Behenna was convicted and before he was sentenced to 25 years in prison. The tribunal refused an appeal of the conviction on Behenna's behalf based on the prosecution's failure to disclose MacDonnel's forensics evidence, but reduced his sentence to 18 years which he is now serving at Fort Leavenworth, Kansas.

Read MacDonnel's belief in Behenna's innocence at http://defendmichael.files.wordpress.com/2009/03/govexpertwitness.pdf.

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Rinehart To Be Investigated...Again

Former Oklahoma County Commissioner Brent Rinehart is going to be investigated again.

This time, District Attorney David Prater wants to know the details behind an uncashed, two-year-old check for $71,185 found in a credenza in offices Rinehart vacated. The check was written by an auctioneer after surplus property was sold by Rinehart’s District 2 office nearly two years ago.

Prater sent a letter this week asking the Oklahoma State Bureau of Investigation and the state auditor to investigate whether Rinehart or his staff are guilty of any wrongdoing, according to records that were obtained by The Oklahoman. Prater also asked state authorities to look into what happened to a computer and two monitors discovered to be missing during an audit when Rinehart left office.

Rinehart was defeated in the Republican primary last year as he sought reelection. He already faces a legal battle over charges filed earlier.

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Prater Says He 'Resents' Holmes Suggestion

Oklahoma County District Attorney David Prater told the Tulsa World today he doesn't appreciate an attempt by Democratic Party Chairman Ivan Holmes to "pull" his office into the Lance Cargill controversy.

“I resent the fact that it appears the Oklahoma Democratic Party is attempting to pull my office into a partisan fight,” Prater said, noting that Attorney General Drew Edmondson’s office has already reviewed the issue and decided no further action is warranted.

Holmes today asked Prater, a Democrat, to look into the Cargill fundraising controversy, that drew Cargill an Ethics Commission reprimand for irregularities in donations intended for the Oklahoma Republican Party that instead went to other entities.

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Prater: Board Violated Open Meetings Act

Oklahoma County District Attorney David Prater said today that the Oklahoma City Board of Education's Monday meeting in which Superintendent John Porter was suspended violated the state's Open Meetings Act, but he does not plan to file criminal charges. It is unclear whether notes from the executive session in which the board discussed Porter's fate will be released, although Prater previously has said the notes would be made public should the meeting be deemed illegal.

The board meets at 3 p.m. today to again take up Porter's suspension.

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Brent Rinehart Forced By David Prater To Remove Detailed Jail Floor Plan From Web Site

A blog for Democrats, http://www.demookie.com/, broke the news that a floor plan of the Oklahoma County jail has been removed from the Web site of Oklahoma County Commissioner Brent Rinehart at the insistence of District Attorney David Prater, who said the posting of the floor plan on Rinehart's site was a "security breach."

Rinehart says he saw no problem posting the floor plan because it's a public record that was presented to the commission during an open meeting.

Prater says the issue isn't about open records or Rinehart's right to post the document. He says the issue is security in light of a recent near-successful jail break.

Prater took the action after Sheriff John Whetsel brought it to his attention; Whetsel says the public and law officers are at risk because the plans could guide people in assisting or directing escapes from the jail.

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Was Hansen Lawsuit An Attack On Wes Lane?

A malpractice lawsuit filed against former Oklahoma County District Attorney Wes Lane's wife in the midst of last year's contentious election in which Lane was upset by Democrat David Prater has been dismissed because the plaintiff and her attorney failed to pursue it.

The action, or lack of it, by Sandra K. Ditto and her attorney, David Thomas, has fueled speculation the lawsuit was filed only to hurt Lane's reelection bid. The dismissal came because Ditto and Thomas failed to have Lori Hansen served with a summons within 60 days of the filing of the case as is required.

The lawsuit against Lori Hansen was dismissed in January. It accused Hansen, a former doctor, of operating on Ditto in October 2004 while under the influence of prescription painkillers. Hansen retired in 2005 and has denied the allegation in the lawsuit.

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Untold Story: How 'Damaging Events' Helped Democrat David Prater Defeat Republican Wes Lane

One of the most surprising upsets of Election Year 2006 to many was the 824-vote defeat of incumbent Republican Oklahoma County District Attorney Wes Lane by Democrat David Prater.

In the aftermath of Lane's defeat, there's been a lot of head-scratching: What happened, given Lane's lead in almost all the polls leading up to that final weekend before election day?

Now, we have an idea of what happened and it comes from a post-election "focus group" meeting conducted by Lane's pollster and consultant, Chris Wilson of Wilson Research Strategies of Oklahoma City and Washington.

Wilson's study was of a selected group of 10 "likely" Lane voters who switched their votes to Prater in the final hours. The participants were paid $50 each for their time.

TMRO obtained a copy of Wilson's report to Lane and it essentially confirms our earlier conclusion that two events on that final weekend sealed Lane's fate. First, was the arrest of an assistant district attorney following a minor traffic accident and allegations he was under the influence of drugs. Second, was the Prater news conference with the relative of a crime victim who had appeared in a Lane commercial and her comments critical of Lane. Both events resulted in wide news coverage in the hours leading up to election day and, Wilson's report concludes, "the sustained negative media coverage had a devastating impact." Those were the final blows to Lane, but the ground beneath him already had been eroded by several other factors.

Erosion Of Support For Lane: (1) Wilson's study found that "every participant (in the focus group) said they had voted more Democratic in 2006 than is the norm." Some of the participants mentioned they voted for Prater because he is a Democrat. (2) The endorsements Prater received from law enforcement organizations prompted some to switch their votes from Lane to Prater as the campaign evolved. The endorsements were "seen as tantamount to being supported by the police themselves," Wilson reported. "Participants voiced strong concern over the prospect of electing a district attorney who had lost the support of the police." (3) Some of the participants were not necessarily for Prater, but against Lane, the study found. "Each participant had their own specific negative story about either Lane himself, or the DA's office, with each story coming straight from the news media. There can be no question the sustained negative media coverage had a devastating impact." The study also found that some believe the DA's office under Lane exuded an "air of incompetence," citing the departures of assistant DAs, the Crystal Dittmeyer case, the Brian Bates prosecution and other, less public, incidents. (4) "Another key issue discussed by participants was Wes Lane's perceived lack of visibility as a district attorney. Several respondents stated it was their opinion, that throughout his term, Lane was much less visible than his predecessor, Bob Macy. Participants felt they 'seldom' or 'never' saw nor heard from Lane unless it was because of a negative news story about him or the office. This perception of a lack of visibility clearly played into Prater's message of an office in turmoil and created a view of secrecy and/or underhanded operations."

Damaging Events: "Wes Lane was the casualty of several damaging events over the course of the campaign that culminated over the last weekend to result in his defeat. (1) The foremost problem was the down year for all Republican candidates. To a person, every participant said they voted more Democratic this year than in the past; a close examination of the straight party voting pattern proves this to be the case and likely cost Lane far more than the ultimate vote difference between he and Prater. (2) Secondly, Prater's advertising campaign seemed to generate more recall among voters than did Lane's. Participants remembered Prater's advertisement about police department endorsements more than any other. This was a determining factor amongst many voters and caused several of our participants to change their vote in the final hours. The perception with these voters that Lane had lost police support to Prater was without a doubt one of the principal factors in the outcome of this race. As one participant said, 'That was the one thing that ensured me to vote for Prater instead of Wes Lane.' (3) Lastly, voters' views of Lane were heavily impacted by the negative news coverage throughout the campaign, concluding with the barrage of negative stories in the final weekend before the election. Each of the voters in our group had a negative view of the district attorney's office, and each seemed to have their own unique reason. In the opinion of participants, during his tenure Lane seemed to only be the recipient of negative coverage." (4) The two stories over the final weekend, the ADA being arrested for what voters remember as some form of substance abuse and the press conference in which Mrs. McCurdy denounced Lane, said she had been misled and endorsed Prater, were devastating. Even if not for the other factors, these stories may have been terminal to the reelection effort."

Summary: "When grouped together, these issues were simply too much to overcome. Republican Party affiliation in a Democrat year, scores of negative media attention with two very damaging stories in the final days created a public sentiment toward Wes Lane that allowed David Prater to win over enough voters in the final days to win this election."

Prater Consultant Don Hoover Cites Hard Work: "In my humble opinion, David Prater won because of his tremendous personal effort. I’ve never had a client who worked harder or longer. The police endorsements were certainly a key but they would never have happened without David’s unrelenting effort. David’s work made my job easy. All I had to do was make a few television and newspaper ads and leave the heavy lifting to him. David and his wife, Tamara, won it because 'quit' is not in their vocabulary."

Image courtesy Fox 25 News

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KTOK: Rowland Joins Prater Staff

By Jerry Bohnen, NewsRadio 1000 KTOK ~ After several years as legal counsel to the Oklahoma Bureau of Narcotics and Dangerous Drugs, Scott Rowland is resigning to be First Assistant to Oklahoma County District Attorney-elect David Prater.

Rowland's resignation from the OBNDD is effective December 31st. He will become the number two man in the D-A's office when Prater is sworn into office. Rowland admits he was taken aback by the job offer because he had no involvement in Prater's campaign to unseat D-A Wes Lane.

"I thought it over a few days and after meeting with David, I realized the things he wants to do, the way in which he wants to do them and the people he wants to bring in to do them with are exactly the way I'd do it were I just elected," said Rowland in an e-mail to KTOK.

Rowland said he didn't want to "sit on the sidelines and watch."

Rowland once was the State Capitol Correspondent for KTOK before going to law school and briefly working with former D-A Bob Macy.

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