Expert: Lt. Behenna 'Acted clearly in self-defense'

By Jeff Murray/Elmira Star-Gazette In South Corning, NY ~ Some people collect stamps or coins. At first glance, Herb MacDonell's collection seems a bit more macabre. MacDonell's South Corning home is stuffed with human bones, blood-spattered clothing, crime scene photos and other disturbing artifacts.

But all of those gruesome items have an important tale to tell, although it often takes a highly skilled forensics expert to draw those elusive stories out.

No one does it better than MacDonell.

Decades before the "CSI" television programs made forensic investigation fashionable, MacDonell was blazing trails that helped convict the guilty and exonerate the innocent.
And it all started with a simple gift.

"I started at age 7 with a fingerprint kit," said MacDonell, 82. "I like puzzles and a homicide is a very challenging puzzle. I celebrated my 60th anniversary of investigating cases two weeks ago. I've had inventions, and I have four patents. I founded the International Association of Blood Stain Pattern Analysis. I've testified in 15 different disciplines."

MacDonell, who has testified in high-profile criminal trials all over the country and internationally, will highlight some of his most interesting cases during a Wednesday luncheon sponsored by the Auxiliary of Corning Hospital.

MacDonell will share details of six cases -- one for each decade of his career -- during the luncheon, which is open to the public.

MacDonell has testified for both the prosecution and the defense over the years, but sometimes his analysis of the evidence doesn't lead to where the lawyers expect or want it to go.

For example, MacDonell recently testified in the trial of a U.S. Army officer accused of murdering an unarmed Iraqi.

Army prosecutors alleged that Lt. Michael Behenna executed the Iraqi during an interrogation as revenge for a bombing that killed two comrades. Behenna claimed he shot the man in self-defense.

MacDonell was supposed to be a witness for the prosecution, but after studying the trajectory of the two bullets that struck the victim, he concluded the execution theory didn't make sense.

"He acted clearly in self-defense. He saw the guy coming at him and 'bang bang,'" MacDonell said.

Prosecutors sent MacDonell home without calling him to the stand, and they didn't tell the defense lawyers about his revelation until after Behenna was convicted of unpremeditated murder.

Behenna's lawyers are currently appealing the verdict based on MacDonell's information.

MacDonell is best known for his work in criminal trials, but he has also been called to testify in civil cases. And sometimes the enlightening evidence comes from unlikely sources.

MacDonell was once called to testify in a lawsuit in Hornell, where a teenager was killed when his car collided at night with a piece of highway machinery parked on the side of the street.

The teen's parents sued the city, claiming the machinery didn't have adequate reflectors.
After learning the youth was wanted by the police prior to the crash, MacDonell went to the junk yard to examine his wrecked car -- a full year after the fact.

He pulled the smashed headlights, and after examining the condition of the tungsten filaments, declared the victim was entirely responsible for his own demise.

"His headlights were off when he had the accident," MacDonell said. "The insurance company was happy. (The parents) dropped the whole suit."

MacDonell is retired from a long career as a professor at Corning Community College, but he hasn't slowed down.

If he's not examining some esoteric evidence for clues in his home laboratory, MacDonell is often just down the hall in his office reading correspondence or exchanging e-mails with a future client.

"When you pass my age, you should be sitting on a porch, rocking in a chair and smoking a cigar, but it doesn't work that way for me," he said. "If I didn't have something to do, I wouldn't be happy. It's so much fun to find things other people examine but don't perceive as significant.

"People always ask me 'What's your most important case?' I ask from whose standpoint?" MacDonell said. "I enjoy what I do. Every now and then I realize I really helped somebody."

Note: To learn more about the Behenna case and to sign an online petition to Senators Tom Coburn and Jim Inhofe and Secretary of the Army John McHugh, visit www.defendmichael.com.

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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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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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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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