The Supreme Court justices will soon discuss a case that, were it written in the form of a novel and submitted to a book publisher, might cause a fiction editor to toss the manuscript into the wastebasket.
The case is that of First Lieutenant Michael C. Behenna, convicted in an Army court-martial of murdering a suspected Iraqi terrorist nearly five years ago and now serving a 15-year term in Fort Leavenworth, Kansas. Last Monday, the justices asked the Department of Justice to respond by Feb. 27 to an appeal filed by Behenna’s lawyers.
The DOJ initially declined to respond to the defense’s petition for certiorari, filed with the high court on Jan. 2, after Chief Justice John G. Roberts Jr. granted the defense a two-month extension. The high court’s request for a DOJ response is heartening for the defense, as it could mean that the justices are considering granting certiorari and hearing arguments.
Behenna’s conviction and sentence was upheld by the U.S. Court of Appeals for the Armed Forces last July. The tribunal concluded, 3 to 2, that while there were faults in the trial judge’s instructions to the jury, they did not justify setting aside the verdict. The appeals court also rejected the defense contention that the conviction should be voided because prosecutors had withheld exculpatory material in violation of the Supreme Court’s 1963 Brady ruling.
The case has elements of tragedy — young soldier from upstanding American family kills Iraqi civilian only days after several of the soldier’s comrades are killed or wounded by a roadside bomb — but the Behenna case has a bizarre twist. The defendant’s mother is Assistant United States Attorney Vicki Behenna of the Western District of Oklahoma. His father, Scott Behenna, is an intelligence analyst for the FBI.
A prosecutor for more than two decades, Vicki Behenna was a member of the team that convicted Timothy McVeigh of bombing the federal building in Oklahoma City in 1995. McVeigh was executed in 2001 for the crime that killed scores of people, but there was a delay before the sentence was carried because FBI files that should have been turned over to the defense were not — in violation of the Brady ruling (see Main Justice’s report).
It is not disputed that Lieutenant Behenna took Ali Mansur Mohamed to a desert culvert the night of May 16, 2008 and questioned him aggressively at gunpoint about terrorists in the area north of Baghdad. What happened next is in dispute. Was the Iraqi, who was suspected of giving terrorists information about troop movements, shot while sitting down? Or was he, as the defense contends, on his feet and lunging for the lieutenant’s pistol, forcing the officer to shoot in self-defense?
Staff Sgt. Hal M. Warner, assigned to the 101st Airborne Division as was Lieutenant Behenna, pleaded guilty to assault, got a 17-month sentence and testified against Behenna, saying that the lieutenant not only shot the Iraqi but burned the body by using an incendiary grenade.
Judge Scott Stucky of the military appeals court wrote the opinion upholding Behenna’s conviction and was joined by Chief Judge James E. Baker and Margaret A. Ryan. The majority held that Behenna was not in a chaotic battlefield situation, that he initiated the events that led to the death of the Iraqi civilian, and that he could have “walked away” before the encounter ended in death.
But Judge Andrew S. Effron dissented and was joined by Judge Charles E. Erdmann. They found it highly significant that a blood-spatter expert who was originally supposed to testify for the prosecution commented to defense lawyers that he would have been a good witness for them, and that prosecutors did not disclose that fact immediately. (That expert was never called to the stand.)
For the moment, Vicki Behenna, who started a website to promote her son’s defense, is encouraged that the Supreme Court has at least taken “the critical first step” of deciding to discuss the case in conference. She told Main Justice in a telephone interview that her colleagues in the U. S. Attorney’s office have been “very supportive and kind” about her family’s ordeal. A career prosecutor, she said she is convinced her son, who will turn 30 in May, will one day be cleared.