Bob McCarty Writes

EDITOR’S NOTE: On July 31, 2008, Army Ranger 1st Lt. Michael Behenna was charged with the premeditated murder of Ali Mansur, a known Al-Qaeda agent operating near Albu Toma, an area north of Baghdad.  Seven months later, the leader of the 18-member Delta Company, 5th platoon of the Army 101st Airborne Infantry Division was convicted of unpremeditated murder and sentenced to 25 years confinement at Fort Leavenworth. Below is the eighth installment of a multi-part investigative series detailing the spurious case against Lieutenant Behenna, now 26, adapted from “The Michael Behenna Story (pdf)” (26 pgs., PDF) by new BMW contributor Carrie Fatigante. It picks up from “The Michael Behenna Story: Part Seven.”

By Carrie Fatigante

Army prosecutors never presented any physical crime scene evidence to prove their premeditated execution charge against 1st Lt. Michael Behenna in the death of known Al-Qaeda operative Ali Mansur.  They did, however, take the time to secure immunity deals for at least two witnesses who admitted to lying previously for self-preservation purposes — specifically in regard to the timing of SSgt. Hal Warner’s initial report about the May 16, 2008, shooting.  One of those was Sergeant Warner himself.

The first few days of testimony went well for the prosecution, save for the conflicting testimonies of Sergeant Warner and Harry, Michael’s interpreter.  Intending to call their own expert to rebut the defense’s trajectory testimony, they were surely dismayed on Feb. 25 when the prosecution’s own expert witness, Dr. Herbert Leon MacDonell, presented the prosecution with his conclusions that corroborated Michael’s claim (i.e., that Mansur was standing with his arms outstretched when he was shot).

Dr. Herbert Leon MacDonell

Michael was scheduled to testify the next day, and Dr. MacDonell, director of the Laboratory for Forensic Science in Corning, N.Y., assumed he would go under oath as well.  But Dr. MacDonell, a man whose forensic career spans five decades and includes such high-profile and complex cases as the assassinations of President John F. Kennedy, Sen. Robert F. Kennedy, Martin Luther King Jr., and the case against O.J. Simpson, was never called to the witness stand.  More disturbing still is the fact that the defense team was not notified of the doctor’s findings.

After the close of proceedings that Thursday evening, Dr. MacDonell approached defense attorney Jack Zimmerman with the statement, “I would have made a great witness for the defense. We’ll talk after the case.”

The following morning, Zimmerman approached the prosecution team asking why MacDonell would be a good witness for him.  The three Army captains denied any knowledge of what MacDonell could have meant.

Closing arguments began and ended with the prosecution claiming that Michael callously executed “helpless, hopeless, harmless” Ali Mansur while he was seated on that rock.  Again, this sitting position is essential to the prosecution’s case, because it is the only thing that negates Michael’s claim of self defense.

The prosecution never provided evidence to prove this claim, presumably because they knew it was false.

As a federal prosecutor herself, Vicki Behenna said such actions are inherently unethical and all three attorneys should be disbarred for their direct collusion to make knowingly false accusations.  As they closed their case to the jury, they explained their lack of expert evidence and testimony as unnecessary, because Michael’s case was so “unreasonable.”

Just before MacDonell left the courthouse that Thursday afternoon, “he picked up his coat from the prosecution room and told the three prosecutors, ‘The explanation that Lieutenant Behenna just testified to was the exact same scenario I told you yesterday.  Lieutenant Behenna is telling the truth.’” (Source:  www.defendmichael.wordpress.com)

Michael was convicted on Friday, and the only concession the jury made to Michael’s self-defense claim was convicting him of unpremeditated murder versus the original charge of premeditation.

Later that same day, Dr. MacDonell sent the following email to the prosecution team.  Text is copied below, but you can view original document here.

Friday, February 27, 2009
4:07 p.m.

Dear Captain Poirier:

I came home to an incredible pile-up of work but I shall try to send an invoice to you within a few days.  On that issue I should advice you that I may have exceeded what was appropriate because of staying two nights rather then one.  My estimate for my total cost was based on one night there but I shall still try to keep the total within your budget even if I have to reduce the number of hours I spent here in preparation for my testimony.

On another issue I am somewhat concerned that I did not testify and have a chance to inform the court of the only logical explanation for this shooting.  As I demonstrated to you and to the two other prosecutors, Dr. Berg, Sgt. McCaulley, and Sgt. Rogers?, from the evidence I feel that Ali Mansur had to have been shot in the chest when he was standing.  As he dropped straight down he was shot again at the very instant that his head passed in front of the muzzle.  Admittedly, this would be an amazing coincidence, however, it fits the facts and as I told you on Wednesday, it fits the facts and I can not think of a more logical explanation.

This scenario is consistent with the two shots being close together, consistent with their horizontal trajectory, consistent with the bloodstains on the floor, and consistent with the condition of the 9mm flattened out bullet which was tumbling after leaving Mansur’s head or body.  I do not know where this bullet was recovered but I would expect after impact to the concrete wall it fell very close to that wall.  The other bullet should have been close to the first and there should have been two impact points on the wall.

On Thursday afternoon when I heard Lt. Michael Behenna testify as to the circumstances of how the shots were fired I could not believe how close it was to the scenario I had described to you on Wednesday.  I am sure that had I testified that I would have wanted to give my reenactment so the jury could have had the option of considering how well the defendant’s story fit the physical facts.  This, of course, would not have been helpful to the prosecution case.  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.

It was a pleasure meeting you and your team and I learned one thing; the military life is not for me.  You guys are getting up about the time we go to bed.

Respectfully Submitted,

Dr. Herbert Leon MacDonell, Director
LABORATORY OF FORENSIC SCIENCE

Stay tuned for “The Michael Behenna Story: Part Nine.”

* * *

1st Lt. Michael Behenna

To read other BMW posts about Lieutenant Behenna’s case, click here.

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.

Be Sociable, Share!

•