Denied Justice By the Country He Defended

May 28, 2009 18 Comments ›› Pat Dollard

I brought this to your attention two months ago, and the story continues to unfold.

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By Katie O’Malley In Town Hall:

Memorial Day 2009 in my small American town was like thousands of other celebrations across this great nation. Veterans and active duty military members marched proudly through our streets, honored by their neighbors in a public and jubilant way. Prayers, remembrances and tears punctuated the day as we were all called to remember and honor those who have made the ultimate sacrifice, giving their lives for our freedom.

Memorial Day 2009, however, marks the first of what may be 25 Memorial Days that Army Ranger 1st Lieutenant Michael Behenna will spend behind bars in Ft. Leavenworth. In March of this year, Behenna was sentenced to 25 years for killing known Al Qaeda operative Ali Mansur. Behenna has maintained, and forensic evidence supports, that the killing occurred in self-defense.

Mansur’s cell was active in Behenna’s area of operation and may have been directly involved in an attack on Behenna’s platoon in April of 2008. This attack left two American heroes dead. Mansur was detained and questioned. And yet, despite the knowledge of Mansur’s unsavory ties, Army intelligence inexplicably ordered the release of Mansur back into the shadows. It was during the final transfer and interrogation that Behenna asserts Mansur attacked him, obliging Behenna to fire upon and kill Mansur in self defense.

Behenna did what he was trained to do and what we Americans depend on him to do; protect himself, his fellow soldiers and ultimately the American people. His grateful nation, rather than provide him the benefit of the doubt, chose instead to charge him in July of 2008 with the premeditated murder of Al Qaeda operative and terrorist Mansur.

Michael is a kid like thousands of others. He enlisted in our Armed Forces with a love and respect for his country, a love that he had every reason to believe was entirely reciprocated. Michael joined the military at a time when our nation was at war knowing that he would certainly be put directly on the front lines of battle.

When the charges were first filed, his parents, though shocked, had reason to be hopeful. His mother is an Assistant United States Attorney and his father is a retired Special Agent with the Oklahoma State Bureau of Investigation. Michael’s parents have invested their entire careers pursing justice and knew that ultimately the truth would prevail. Michael’s mother Vicki explains, “I told Michael to trust the justice system. It is a fair system where a search for the truth is its ultimate goal. I’m sickened to know now that there was not attempt at my son’s trial to give the jury the truth.”

Behenna’s trial was anything but fair. The truth not only did not prevail. It was buried by the very government that Michael risked his life for.

Dr. Herbert MacDonell, a respected authority on blood spatter, was called to investigate the findings as one of the government’s expert witnesses. His expertise has been respected in high profile cases, including the murders of Dr. Martin Luther King and Robert Kennedy. During a recess meeting with prosecutors, MacDonell demonstrated the dynamics of the encounter between Behenna and Al Qaeda operative Mansur.

MacDonell conveyed his conclusion that Mansur was standing with his arms outstretched at the time of the shooting, supporting Behenna’s version of the events. The government Michael put his life on the line to defend did not find solace in this information. They did not sigh a collective sigh of relief that one of their own was indeed the honorable man that his prior Officer Evaluations had noted. In fact, our government chose not to put MacDonell on the stand or enter his highly respected expertise into evidence. Indeed, MacDonell’s own impassioned plea to prosecutors to advise the defense team of his findings “in the interest of justice” fell on deaf ears.

Jack Zimmermann, Michael’s defense counsel, specifically asked prosecutors during the trial if they had any exculpatory evidence that should be provided. Prosecutors denied any such evidence. Prosecutors did not make the defense team, or ultimately the jury, aware of MacDonnel’s clear and definitive declaration that Behenna’s explanation was the only logical explanation borne out by the evidence. Zimmerman was made aware of MacDonell’s findings AFTER a military panel of seven officers, none of whom had combat experience, found Michael guilty of the unpremeditated murder and assault of an Al Qaeda operative.

Too little too late, MacDonell’s findings were given to the defense team only prior to sentencing. Despite this miscarriage of justice, on March 20, 2009 a judge denied a defense motion for declaration of a mistrial.

Michael’s mother affirms what should be obvious, “Michael has served the Army and the United States with honor and dignity. To sacrifice the life of this Oklahoma soldier for gamesmanship of a win for the prosecutors is a breach of faith with those who are serving our [c]ountry. Our soldiers, including my son, fight for the rights this [c]ountry holds dear, the right to be considered innocent until proven guilty, the right to due process, and the right to a fair trial. My son deserved to have a fair trial where all the evidence is provided to the jury.”

In two weeks, Michael’s case will come before Gen. Townsend. The general will review the record, the recommendation of the prosecutors and the clemency package. He can choose to set aside the findings of guilt, call for a new trial, or reduce Michael’s sentence.

This young man, who risked his life for all of us, is now looking at a future behind prison walls. The potential of falling in love with a wonderful girl, bouncing babies on his knee and holding hands in prayer with his family around a holiday table have all been stolen from him by a miscarriage of justice that must not be allowed to stand. The endless possibilities of his future have been taken by the government he pledged his life to protect, a government that seems more concerned with a win at the expense of a young man’s life than finding the truth.

All Americans should hope that Townsend does not fail Michael as the government’s prosecutors have.