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Published:December 24th, 2010 11:37 EST
Clemency Request Refused in Case Over Death of Al-Qaida Operative

Clemency Request Refused in Case Over Death of Al-Qaida Operative

By SOP newswire2

The U.S. military has argued on appeal that Lt. Michael Behenna had no right of self-defense when he killed a known al-Qaida operative who allegedly lunged for the soldier`s weapon.

The appeal for Behenna, 27, who is serving a 15-year term in Ft. Leavenworth, came only days after a clemency board separately rejected a request to reduce his punishment.

According to the Daily Oklahoman, in the soldier`s home state, the appeals court officers were told by prosecutors that during the attack the al-Qaida operative was naked and unarmed while the soldier was dressed in battle gear with a weapon.

"The right of self-defense doesn`t exist under the facts of this case," said Madeline Yanford, arguing for the prosecution.

More details on the arguments come from friends and others who are working in Behenna`s defense at the Defend Michael website.

His supporters explained the prosecution "seemed to be taking a new position on the facts of the case."

"During Michael`s trial in February 2009 the crux of the entire case revolved around whether Ali Mansur was sitting and executed or standing and reaching for Michael`s gun," they explained. "The Army prosecutor`s theory was that Michael executed Mansur while Mansur sat on a rock in a culvert. Michael`s testimony was that he was questioning Mansur in the culvert when Mansur stood up and lunged for his weapon. The Army prosecutors claimed Michael`s testimony was `impossible` and `self-serving` despite all the forensic evidence supporting Michael`s version (including their own expert witness who they sent home rather than have testify.)"

Now at the appellate level, the Army "seemed to back away," his supporters said.

Instead, prosecutors argued "even if Mansur was standing and reaching for Michael`s weapon Michael would still be guilty of murder because he lost his right to defend himself by pointing a loaded gun at Mansur."

"Telling a soldier that they lost their right to defend themselves in a war zone ... against a known terrorist ... is just plain crazy talk by people who have never been in harm`s way," the website said.

The appeal also concerns questions about whether prosecutors refused to disclose exculpatory evidence to the defense during the trial.

Mansur was being questioned in Iraq in connection with an attack that killed members of Behenna`s squad. Authorities had ordered his release and told Behenna to escort Mansur back to his home.

Behenna said he was questioning Mansur while taking him home when the al-Qaida operative went for Behenna`s weapon. Behenna fired one shot as Mansur had his arms raised and was lunging for the gun and fired a second shot that apparently hit Mansur in the head as he fell.

Herbert MacDonell, a forensics expert who heads the Laboratory for Forensic Science in Corning, N.Y., was called by the prosecution and concluded Behenna`s account was supported by the evidence.

But prosecutors chose not to have him testify, and they declined to inform the defense of MacDonell`s observations until after the conviction.

In an e-mail obtained by defense counsel after the trial, MacDonell wrote he was "concerned" he was not allowed to testify "and have a chance to inform the court of the only logical explanation for this shooting."

He said, "As I demonstrated to you and to the other two prosecutors, Dr. Berg, Sgt. McCaulley, and Sgt. Rogers, 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.

"Admittedly, this would be an amazing coincidence, however, it fits the facts and ... I cannot think of a more logical explanation," he continued.

"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. ... When I heard Lt. Michael Behenna testify as to the circumstances of how the two shots were fired I could not believe how close it was to the scenario I had described to you on Wednesday. I am sure that had I testified I would have wanted to give my reenactment so the jury could have had the option of considering how well the defendant`s story fit the physical facts," he wrote.

"This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence," he said.

American court procedures call for prosecutors to provide any exculpatory evidence - information that could help the defense - to defense attorneys in the case.

The Oklahoman reported that appellate judges appeared to be concerned that Mansur could have been considered to be "escalating" a conflict by lunging for Behenna`s weapon.

Behenna`s attorney told the appeals court that the issue of whether Behenna could have "withdrawn" or "evaded" should have been a subject for the jury to consider, but it wasn`t presented to the jury.

The soldier`s clemency hearing was held just days before the appeals court hearing earlier this month. The announcement the clemency board would take no action came just this week. The decision on the appeal could be months away yet.

"We pleaded Michael`s case before the Army Clemency Board," the website report explained. "We pointed out to them that Michael`s sentence was 50 percent larger than thet highest sentence given to any soldier convicted of unpremeditated murder in a combat zone. We also addressed Michael`s unblemished record in prison for the past two years, his many accomplishments while incarcerated, and his unblemished civilian record. We ... offered many letters of reference including those from the governor of Oklahoma, the Oklahoma attorney general ... in addition the entire Oklahoma congressional delegation offered their support for Michael`s clemency."

But the board, however, announced it would take no action.

"We ... can only surmise that the secretary of the Army desires Michael to spend a substantial amount of time in prison," the supporters said.

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By Bob Unruh
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