Short of a presidential pardon or a United States Supreme Court ruling in his favor, which isn’t likely in this day and age, it appears Army Ranger 1LT Michael C. Behenna will remain behind bars at Fort Leavenworth, Kan., until he turns 40 years old. The Court of Appeals of the Armed Forces in Washington, D.C., has upheld the 29-year-old Edmond, Okla., native’s conviction stemming from a May 16, 2008, shooting in Iraq.
The sad news arrived shortly after 6 p.m. Central Thursday, almost 11 weeks after the five-member CAAF panel heard Lieutenant Behenna’s final appeal of the verdict that found him guilty of unpremeditated murder in the shooting death of Ali Mansur, a known Al-Qaeda operative in Iraq.
It is beyond comprehension how multiple levels of the military justice system were able to reconcile the lieutenant’s conviction with the fact that the government’s own expert witness reached the conclusion that the lieutenant acted in self defense — see this post and this post for more details — but they did. And by a 3-2 margin.
Below is the cruxt of the majority opinion in the decision:
We granted review in this case to determine whether the military judge provided complete and accurate self-defense instructions, and whether the Government failed to disclose favorable and material information to Appellant’s prejudice. We hold that, although the military judge’s instruction on escalation was erroneous, it was harmless beyond a reasonable doubt because escalation was not in issue. Moreover, contrary to Appellant’s arguments, withdrawal also was not in issue. We further hold that, even assuming that the information Appellant asserts the Government failed to disclose was favorable, it was immaterial in regard to findings and sentencing because the evidence substantially overlapped with other evidence presented by other defense experts, Appellant was not entitled to an escalation instruction, and the members clearly rejected the Government’s theory of premeditated murder. We, therefore, affirm the judgment of the United States Army Court of Criminal Appeals (CCA).
Next, the dissenting opinion:
A death occurred in the theater of operations. A soldier has been convicted of murder. Was it murder or self-defense? By law, the responsibility for making that factual determination rested with the court-martial panel, not with this Court. The ambiguous, confusing, and incorrect instructions from the military judge deprived Appellant of the right to have a panel of officers make that decision. The military judge compounded that error by failing to take corrective action with respect to the Government’s failure to provide timely disclosure of exculpatory evidence. This Court should reverse the decision of the Court of Criminal Appeals and authorize a rehearing.
The entire document, warts and all, can be found here.
Since June 4, 2009, I’ve written more than 60 posts about Lieutenant Behenna and fight for military justice, and this certainly will not be the last.
Below is a list of several posts I’ve shared about the lieutenant with whom Green Beret Sgt. 1st Class Kelly A. Stewart, the man at the center of “Three Days In August,” became friends while both were in prison at Fort Leavenworth:
FYI: Stewart is still awaiting the outcome of his Army Court of Criminal Appeals hearing that took place April 19, details of which are mentioned in this post.
CORRECTION 7/6/12 at 10:58 a.m. Central: After publishing this post, I was informed that Behenna can appeal his case to the United States Supreme Court; therefore, I amended the lead paragraph to reflect that change.