The Edmond Sun

Local News

July 6, 2012

UPDATE: Vicki Behenna says fight not over to free son

EDMOND — The mother of an Edmond soldier convicted of killing an unarmed Iraqi may appeal to the U.S. Supreme Court after a setback from a military appeals court Thursday.

In a 3-2 opinion, the U.S. Court of Appeals for the Armed Forces, the military’s highest court, upheld 1st Lt. Michael Behenna’s 2009 conviction for unpremeditated murder in a combat zone. Behenna is serving a 15-year sentence in the Fort Leavenworth, Kan., military prison for the 2008 shooting.

“To say we’re a little knocked back is a little understatement right now,” said Behenna’s mother Vicki, who lives in Edmond. “I really thought — we all felt this was going to be the court that would reverse the conviction.”

Vicki Behenna said they are considering all options, including the chances that the nation’s highest court, the Supreme Court, would take the case, and an appeal for a pardon from President Barack Obama.

“We’re trying to figure out what’s the best avenue right now,” she said.

According to the prosecution, Behenna shot and killed Ali Mansur Mohammed, an Iraqi national, when he stopped en route to returning Mohammed to Albu Toma, in Iraq, to question him further about an April 2008 explosion that killed two in Behenna’s platoon.

Behenna claimed he shot Mohammed in self-defense after the Iraqi tried to take his gun, which was pointed at him.

In Behenna’s defense, his lead attorney Jack Zimmermann claimed the ruling should be overturned because the defense was not notified that a crime scene expert gave testimony to the military that corroborated the soldier’s claim of self-defense.

In the majority opinion written by Judge Scott Stucky, the favorable expert opinion would not have changed the outcome.

Stucky wrote, “it was immaterial in regard to findings and sentencing because the evidence substantially overlapped with other evidence presented by other defense experts.”

Zimmermann also claimed the judge in the previous military trial gave erroneous instructions that limited the right to self-defense, which Zimmermann argued would restrict Behenna’s right to a fair trial.

Stucky also wrote the erroneous instruction was “harmless beyond a reasonable doubt,” but did admit the judge gave faulty instructions.

Vicki Behenna said she spoke with her son Thursday night after the opinion was released.

“That was a really difficult conversation we had with him,” she said. “I think he was expecting a different outcome.”

She said, however, that her son is remaining positive and that they appreciate the encouraging messages and emails. She said one person told her these court battles aren’t just for Michael, but all soldiers.

“I think we’re fighting a just cause,” Vicki said. “It’s my son. We’re not going to give up on him.”

Behenna, now 29, had his appeal heard on April 23 in Washington, D.C. The hearing lasted about 45 minutes and allowed the defense and prosecution 20 minutes to present its arguments and allow questions by the five civilian judges.

An advocacy site, www.defendmichael.com,  was set up in response to the Behennas’ ongoing case. About 30,000 people have signed the online petition.

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