By Bob McCarty and Carrie Fatigante
It's not uncommon for people convicted of crimes to proclaim their innocence. Most deserve to be ignored, but not Army Ranger 1st Lt. Michael Behenna.
On July 31, 2008, Lieutenant Behenna was charged with the premeditated murder of Ali Mansur, a known Al-Qaeda operative operating in the area of Albu Toma, north of Baghdad. Seven months later, the 26 -year-old leader of the 18-member Delta Company, 5th platoon of the Army 101st Airborne Infantry Division, was sentenced to 25 years confinement at Fort Leavenworth after being convicted by a military court-martial panel of unpremeditated murder in violation of Article 118 of the Uniform Code of Military Justice.
Though a judge later reduced his sentence to 20 years, the Edmond, Okla., native remains confined at the U.S. Army Garrison in the middle of Kansas, largely due to the fact that a forensics expert whose testimony likely would have exonerated him was never allowed to be heard during the court-martial.
That forensics expert, Dr. Herbert Leon MacDonell, is director of the Laboratory of Forensic Science in Corning, N.Y. During a career spanning five decades, he's been involved in such high-profile cases as the assassinations of President John F. Kennedy, Sen. Robert F. Kennedy and Martin Luther King Jr., and the 1994 double-murder case involving O.J. Simpson. In this case, he appears to harbor strong feelings about the evidence -- the kind of feelings that might lead anyone who doesn't earn an income as an expert witness to say he believes Lieutenant Behenna is innocent.
In the 7-minute video below, the lieutenant's parents -- Scott Behenna, an FBI intelligence analyst, and Vicki Behenna, a federal prosecutor -- explain how prosecutors appear to have committed a Brady Act violation when they failed to disclose to certain information to defense lawyers. That information, which Dr. MacDonell was prepared to share as part of his testimony, was never presented for consideration by the panel of seven officers serving as the military equivalent of a jury. Therein lies the problem.
Below is the text of the sworn affidavit, dated April 21, in which Dr. MacDonell explains how knowledge he obtained while waiting to testify in the case could have changed dramatically its outcome:
I was retained by the government to testify as an expert witness in bloodstain analysis. On 16 December 2008 I received a FedEx package from Captain Megan Poirier. It contained ten envelopes of photographs and reports as well as a video of the scene. Included was a report by Barbara Liveri, and the autopsy report done by an Iraqi doctor. Prior to trial, I told the government that using only the photographs at the scene and the nature of the surfaces where the bloodstains were located made it difficult to reach any definitive conclusions. I had been contacted before trial by Jack Zimmerman, one of the lawyers for First Lieutenant Behenna and told him the same thing. I was set to travel to Fort Campbell on Wednesday, February 25, 2009, to return on Friday, February 27, 2009. I was called and asked to come a day earlier, which I did. I sat in on the testimony of Dr. Paul Radelat and Mr. Tom Bevel. They testified on Wednesday.
At a recess on Wednesday, I was in the prosecutor's office in room 13 in the courthouse. While talking with Dr. Berg about the bullet wounds Ali Mansur received, Dr. Berg gave me information I previously did not have. Dr. Berg told me that the wound trajectories for both the chest wound and the head wound were horizontal and essentially parallel.
After thinking about this new information, I did a demonstration to show the only logical explanation which was consistent with the autopsy findings, the bloodstains, the final resting position of the body, and the time between shots. I had Sergeant MacCauley stand directly in front of me, and facing me. I asked him to raise his right arm a little and then I poked my right index finger in to the right side of his chest under his arm and said, "Bang! You have just been shot, so drop down." The sergeant dropped to his knees and as his head passed in front of my finger, I said, "Bang! You have been shot again." I remarked that this was consistent with the physical evidence. All three prosecutors, Captains Poirier, Roberts, and Elbert were present when I gave this demonstration and informed them of my opinion.
On Thursday morning during one of the breaks I examined the 9mm bullet and sw it had struck a hard object while traveling backwards. This is consistent with the bullet tumbling as it exited on of Ali Mansur's wounds. The uniformity of the extruded lead into a disk-like configuration shows it was traveling in a horizontal trajectory if the surface it struck was a flat, very coarse, vertical surface. Logically, that could have been the culvert's concrete wall.
On Thursday afternoon, the day after this demonstration, I listened to Lt. Behenna testify. I had seen no written statement made by him. This was the first time I learned what he said had happened. After Lt. Behenna described the shooting, I turned to Dr. Berg and told him, "That is exactly what I told you guys yesterday." There was a recess about 5:00 pm and Lt. Behenna was still on the witness stand. I was told by Captain Poirier that I would not be needed, and a flight was arranged for me for that evening. I told Captains Poirier and Roberts that I could stay another day if necessary. They told me my testimony would not be needed and I could leave to get my flight.
When I went back to room 13 to get my hat, coat, and briefcase the captains on the prosecution team were already in that room. As I gathered my things I reminded them that although the scenario I had presented to them the day before was unlikely, it still was the only theory I could develop that was consistent with the physical evidence. It was also exactly the way Lt. Behenna had described the events. Their reaction was noticeably cold. I went back into the courtroom and went over to Jack Zimmerman. As I was putting on my coat I remarked that I was sorry I was leaving because I would have made a good witness for him. He asked why, and I told him I was a government expert, and could not discuss it with him until after the trial. He asked me not to leave but I did. I did not believe it would have been proper for me to have told Attorney Zimmerman any more than I did. I was not "eager to communicate" with him or I would have told him my concern at that time on Thursday.
I expected that the prosecutors would tell Mr. Zimmerman what I had told them. When I was released without being called as a defense witness, and had returned to Corning, New York, I was concerned. I consulted two friends, a Supreme Court judge and a lawyer, and decided to check with Captain Poirier to ensure she had passed on the opinion I had given the prosecutors Thursday afternoon when I was getting my hat, coat, and briefcase.
From reading the judge's ruling, I believe the misunderstanding may have resulted from the way I interpreted the questions asked during my telephone testimony on Saturday, February 28, 2009.
When I testified that I told Dr. Berg, "That is exactly what I told you guys yesterday," and did not remember telling my reaction to any other person, I meant right there at that moment in the courtroom. There was no one else but Dr. Berg sitting nearby who had witnessed my demonstration the day before. The prosecutors were at counsel table then.
However, at the next recess, when I went to get my hat, coat, and briefcase, I specifically told the three prosecutors in their office in room 13 the same thing I told Dr. Berg. As I testified on February 28, 2009, "And as I was leaving I told the prosecuting group, I said, "That was exactly what I told you.'"
I do not feel that it is fair to put the opinion I related to Dr. Berg and Captains Poirier, Roberts, and Elbert on Thursday in quotation marks. Until Wednesday afternoon I had not been told the wound trajectories for both shots were horizontal and parallel. I had not been provided the bullet to examine. The scientific process required me to consider the physical and medical evidence in reaching my final conclusion. That is why I wanted to see the bullet on Thursday. When I heard Lt. Behenna describe what happened, I did not say other witnesses were lying, or that my conclusion was based on my opinion of the Lieutenant's credibility. My expert opinion was based on the fact that the Lieutenant's description as to how the shooting occurred fit the physical evidence.
I have consulted and testified in many trials, and I know what exculpatory evidence is. I firmly believe the jury should have heard my testimony.
A clemency hearing for Lieutenant Behenna is set to take place Jan. 7 in Arlington, Va.
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To read other BMW posts about Lieutenant Behenna's case, click here.
To learn more about Lieutenant Behenna's life before and after he joined the Army, click here to download "The Michael Behenna Story" (26 pgs., PDF) by new BMW contributor Carrie Fatigante.
To learn more about the case and the legal defense fund set up to help defray costs associated with Lt. Behenna's defense, visit DefendMichael.wordpress.com.