On July 5th, 2012, we learned that the majority on the Court of Appeals for the Armed Forces (CAAF), in a 3-2 split, upheld the unpremeditated murder conviction of our son 1LT Michael Behenna. Needless to say, we are very disappointed in the decision of the CAAF.
The CAAF had accepted two issues in Michael’s case (1) the improper self-defense instruction, and (2) Governments failure to disclose exculpatory evidence to the defense, ie. MacDonell’s expert opinion. We know from reading the 2 dissenting judges opinion that the arguments by Michael’s lawyers were very compelling. In fact, the entire court agreed that the self-defense instruction was erroneous. However, the majority court ruled Michael used deadly force by threatening the terrorist with a gun and had no right to self-defense in his given situation – a fact strongly disputed by the dissenting judges – so the majority ruled the self-defense instruction written by trial judge Steven Dixon, even though incorrect, did not prejudice Michael’s defense. The entire court agreed the expert opinion of Dr. MacDonell should have been turned over to the defense, but the majority dismissed the potential Brady violation as irrelevant to Michael’s defense, as MacDonell’s opinion only strengthened Michael’s version that he was attacked, but Michael had no right to defend himself.
The CAAF basically ruled that Michael made a mistake by taking the terrorist to a culvert for an unauthorized interrogation and in the process gave up any right to defend himself no matter what happened in the culvert (note that no police officer in America loses their right to defend themselves in similar situations.) If you recall, the military prosecutors originally prosecuted Michael for executing the terrorist in the culvert, and no evidence or even any mention of Michael losing his right to self-defense was presented to the jury (panel). Michael had no opportunity to present a defense to an allegation of loss of right of self-defense, because that was never the theory presented by the prosecutors. As stated in the dissenting opinion, “was it murder, or was it self-defense.”
Obviously we were one vote away from having Michael back home with us, and the dissenting CAAF judges widely diverged from the majority, which gives us hope that perhaps Michael’s legal battle is not over. Michael remains in prison today for a mistake he made in a combat zone while facing a terrorist who had killed at least two American soldiers and for whom the military had issued a kill/capture order. The court did not believe that Michael executed Mansur as originally charged and for which he was convicted. We will continue to pursue all legal avenues including the Supreme Court, and in search of relief for Michael, we will also contact officials who can understand the perspective of what Soldier’s encounter in a war zone and how dealing with terrorists cannot be equated to a drug deal gone bad in America.
Michael and our entire family want to thank all of those supporters who have taken their valuable time and effort to help Michael’s cause and we know that your continued support will lead to Michael’s ultimate release. We will begin a campaign to contact President Obama and presidential candidate Mitt Romney to take notice of Michael’s case and request they use their influence to pardon Michael or reduce his sentence. The people’s voice must be heard in a case where a Soldier faced his enemy in a war zone. Although Michael has told us he was disappointed in the ruling, he remains a man of integrity and character, and will not be broken by this latest setback. He said that when he walks through the doors of Ft. Leavenworth military prison to freedom he will be a much wiser man than when he first went in.
Attached is an article by Diane West which sums up our thoughts regarding the decision by CAAF. http://www.dianawest.net/Home/tabid/36/EntryId/2170/Devastating-Michael-Behennas-Conviction-Upheld.aspx
Thank you for your continued support for a hero we remain proud to call our son!!!
Tags: 1LT Michael Behenna, Allan West, CAAF, DefendMichael.com, Erwin Roberts, Iraq War, Jack Zimmerman, Jason Elbert, L10FreedomRide.com, Leavenworth 10, Meghan Poirier, Michael Behenna, Military Law, Operation Iraqi Freedom, SOFA, Uniform Code of Military Justice, US Army, War Crimes