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Prosecutor Sees Other Side of Brady in Son’s Military Appeal
Posted By Andrew Ramonas On April 23, 2010 @ 6:12 pm In News | Comments Disabled
A high-profile appeal of an Army First Lieutenant convicted last year of killing an unarmed detainee in Iraq could turn in part on whether military prosecutors withheld exculpatory evidence.
Michael Behenna’s case underscores how the government is being forced to explain, in the military courts as well as the civilian justice system, its compliance with Brady v. Maryland, the 1963 Supreme Court case that requires prosecutors to turn over exculpatory information to the defense.
Behenna’s mother is a veteran federal prosecutor in the Western District of Oklahoma who has set up a website  asking for donations to help defend her son, who has said he killed the detainee in self-defense.
On Wednesday, Vicki Behenna learned of a delay before the Army Criminal Court of Appeals, after appellate lawyers with the military asked for more time to file a brief. “To say the least I am sickened at how slow the ‘wheels of justice’ turn in the military ‘justice’ system,” Behenna wrote in an e-mail to Main Justice.
A major issue in the appeal is whether Michael Behenna was unfairly denied access to potentially exculpatory evidence from a blood splatter expert during his trial.
Just as civilian prosecutors must do, military prosecutors must turn over any evidence to the defense that could bolster a defendant’s case at trial. For military prosecutors, that means complying with Rule 701 for Courts Martial. The Behenna case shows how military prosecutors are not immune from Brady problems, which could also arise in the trials of detainees being held in Guantanamo Bay, Cuba, if they are tried in a military tribunal system.
Vicki Behenna has handled federal cases in Oklahoma City for 21 years. She was a member of the team that successfully prosecuted Timothy McVeigh for his role in the bombing Alfred P. Murrah Federal Building in 1995. Brady issues arose briefly in that case, after the belated discovery of documents in FBI files that were not turned over to defense. The discovery temporarily delayed McVeigh’s execution. McVeigh was put to death in 2001.
This week, the government received a second three-month extension for filing its brief on Michael Behenna’s appeal. Col. Norman Allen, chief of the military’s Government Appellate Division, said his office’s work on the case is carrying on under “normal operating procedures.” Jack Zimmermann, Michael Behenna’s lawyer from Zimmermann, Lavine, Zimmermann, & Sampson , had also sought more time.
Michael Behenna was sentenced to 25 years in prison in March 2009 for the murder of Iraqi detainee Ali Mansur Mohamed. Prosecutors said Behenna shot Mansur, who was naked and unarmed, twice during a May 2008 interrogation in the Iraqi desert. Behenna has testified that he believed the Iraqi had played a role in an attack on his platoon, in which two soldiers were killed and two were injured.
Zimmermann argued that the Army officer shot Mansur in self-defense. Behenna said during his military trial that Mansur had reached for Behenna’s weapon.
The potentially exculpatory evidence at issue surfaced hours after Behenna was convicted. Capt. Meghan Poirier, the lead military prosecutor in the case, sent Zimmermann an e-mail she received from a government witness who never took the stand. Herbert MacDonell, a bloodstain pattern analyst, wrote that he would have testified that Behenna’s version of events was plausible.
“This, of course, would not have been helpful to the prosecution case,” MacDonell wrote in an e-mail  to the military prosecutor. “However, I feel that it is quite important as possible exculpatory evidence so I hope that, in the interest of justice, you informed Mr. Zimmerman of my findings. It certainly appears like Brady material to me.”
In forwarding MacDonell’s email to the defense counsel, Poirier commented: “I am not sure that I believe that Mr. MacDonell’s new opinion is exculpatory, but I wanted to send it to you in an abundance of caution.” Poirier declined to comment to Main Justice on potential Brady issues in the case.
Zimmermann, who regularly speaks about Brady at events across the country, immediately requested a mistrial after he received the e-mail.
Col. Theodore Dixon, the trial judge, wrote in a court filing  that MacDonell’s claims were personal opinion “in the guise of an ‘expert opinion’ ” and weren’t exculpatory since the bloodstain pattern analyst revised his initial findings about the killing only after hearing Michael Behenna’s testimony. Dixon denied the defense’s request for a mistrial. Defendants in the military court system receive automatic appeals if they are sentenced for murder.
Recently, Brady issues have created serious problems in the civilian court system. Federal prosecutors came under fire last year after the public corruption case against former Sen. Ted Stevens (R-Alaska) was thrown out. Stevens was convicted, but Attorney General Eric Holder moved to dismiss the charges against Stevens in April 2009, after an internal Justice Department review revealed prosecutors had failed to give the defense material favorable to Stevens’ case.
Since then, the DOJ has launched a major initiative to address concerns about prosecutorial misconduct, including sloppy compliance with Brady requirements. Earlier this year, the DOJ named a new national coordinator for its criminal discovery programs.
Military prosecutors ultimately report to Secretary of Defense Robert Gates. Michelle Lindo McCluer, director of the National Institute of Military Justice , told Main Justice that trial participants in military courts – especially prosecutors – are drilled in their Brady obligations.
“It’s fairly rare to have Brady issues,” said Lindo McCluer, a former judge advocate in the Air Force.
Lindo McCluer and Zimmermann both expressed confidence in the ability of a military court to rule fairly on Michael Behenna’s appeal. Zimmermann noted that the Army has already reduced Michael Behenna’s prison sentence to 15 years without even hearing the soldier’s appeal.
“I believe, as a general rule, military appellate courts are more likely to protect the rights of an appellant than many civilian courts,” said Zimmermann, who has practiced law in the military justice system since 1975. “[Michael Behenna’s] case should receive more scrutiny by the military appellate courts.”
Zimmermann said he anticipates that the Army Court of Criminal Appeals will rule on Michael Behenna’s appeal this fall. For Vicki Behenna, the ruling will not come soon enough.
“We just want Michael to have a fair trial where all the evidence is heard,” she said.
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