Army 15-6 Investigation Report Proves Elusive

Obtaining a copy of the Army Regulation 15-6 Investigation Report prepared after Army Ranger 1st Lt. Michael Behenna shot and killed a known Al-Qaeda terrorist in Iraq is proving impossible.

Is Army Protecting...Since July 19, I’ve tried unsuccessfully to obtain a copy of the 15-6 report from Freedom of Information Act officials at the Army Criminal Investigation Command Crime Records Center at Quantico, Va., at the Army’s primary FOIA office at Fort Belvoir, Va., and at Fort Campbell, Ky., home to the Army’s 101st Airborne Infantry Division, parent command of the 1st Battalion, 327th Infantry Regiment to which Lieutenant Behenna’s 18-member Delta Company, 5th Platoon belonged.

After realizing no success with any of the agencies listed above, I contacted an official at the Crime Records Center and asked her to review the estimated 874 pages of the Report of Investigation that her agency was willing to provide me and see if the 15-6 report was among the documents included.  She told me it was not and suggested I contact FOIA officials at Army Central Command (USARCENT), located at Shaw Air Force Base, S.C.

On Dec. 10, I forwarded a FOIA request to USARCENT, seeking the 15-6.  Yesterday, 35 days later, I received a reply from Col. Rodney L. Lightfoot, Deputy Assistant Chief of Staff at Third Army/United States Army Central Command.  He wrote:

This letter is the final response to your Freedom of Information Act (FOIA) request dated December 10, 2012.  Your request was for a copy of the Army Regulation 15-6 investigation report that was prepared following a shooting incident that took place May 16, 2008 in Iraq.  The shooting incident involved Army 1LT Michael C. Behenna and the person who was killed, an Iraqi citizen by the name of Ali Mansur.

In response to your FOIA request, our agency conducted an extensive search for records. No records were found in search of the information being requested. No fees have been assessed for this action.

Again, I’m left asking the question, “Is the Army protecting someone in the chain of command?”  Meanwhile, Lieutenant Behenna remains behind bars at Fort Leavenworth, serving a 15-year sentence for killing a known Al-Qaeda operative in self-defense.

15-6 FOIA Ltr

Click to enlarge.

UPDATE 1/23/2013 at 8:30 a.m. Central:  Yesterday, I received written confirmation of this coverup in the form of a registered letter (shown at right) from Colonel Lightfoot at USARCENT.

Related:  Army Officer’s Attorneys File Supreme Court Petition (UPDATED)

"Three Days In August" Promotional PhotoBob McCarty is the author of Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, a nonfiction book that’s available in paperback and ebook via most online booksellers, including Amazon.com. His second book, The CLAPPER MEMO, is coming soon.

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‘Three Days In August’ Endorsed by Special Operations Vets

On July 18, I announced that the leaders of a select group of Special Operations veterans had informed me that they had made a decision to champion efforts to bring about justice for two wrongfully-convicted soldiers about whom I’ve written much during the past three years. Today, they launched their effort online!

Simply click on the Noble Warriors tab near the top right corner of the Special Operations Speaks website and you’ll find links to several articles I’ve written about Kelly A. Stewart and Michael C. Behenna.

Stewart is the highly-decorated Green Beret combat veteran whose life story and wrongful conviction are chronicled in my book, “Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.”

Behenna is the Army Ranger officer about whom I have written and published more than 60 articles. He is currently serving a 15-year prison sentence for killing Ali Mansur, a known Al-Qaeda operative, in self-defense in Iraq in 2008.

I encourage you to visit the Special Operations Speaks website, click on the tab and share news about these two warriors who deserve better from the military justice system.

NOTE: “Three Days In August” is available in paperback and ebook via most online booksellers, including Amazon.com. Thanks in advance!

American Warfighters Deserve Same Consideration as Taliban

After being captured on the unmarked battlefields of Afghanistan and Pakistan, members of the Taliban have been granted release after merely pledging not to support or fight for the Taliban anymore.  Why are U.S. warfighters not being granted similar forms of clemency by their own government?

Clockwise from upper left: Michael’s family; Michael; Michael as a youngster; and Michael and his girlfriend, Shannon.

Before addressing that question, it’s worth familiarizing yourself with the Islamic concept of Takeyya.  According to an undated article in Islam Review*, the concept allows Muslims who find themselves under the threat of force to act contrary to their faith and to “utter insincere oaths.”

Fourteen months ago, The New York Times ran an article about attempts to reintegrate members of the Taliban – including many responsible for having killed and/or crippled American soldiers — into society as productive citizens.  The prisoners needed only to pledge — think “oath” — that they would not go back to fighting with the Taliban.  There were no guarantees, of course — just promises — and no apparent concerns about whether or not they were employing Takeyya.  Do you think any of the Taliban who uttered pledges did so simply to facilitate their own release?  Of course, they did!

Now, to answer the question of why U.S. warfighters deserve breaks at least as good as the ones received by their former battlefield enemies, I highlight the case of Army Ranger 1LT Michael Behenna.

Michael’s Platoon

While escorting Ali Mansur, a known Al-Qaeda operative, back to his hometown near Baghdad, Lieutenant Behenna admittedly disobeyed an order and decided to interrogate Mansur.  Why?  There were several reasons:

First, Lieutenant Behenna had good reason to suspect Mansur had been involved in an IED attack two weeks earlier that killed two men — Sgt. Adam Kohlhaas, 26, and Spec. Steven Christofferson, 20 — assigned to the lieutenant’s Delta Company 5th Platoon; and

Second, Lieutenant Behenna had learned that four different Army intelligence officers had interrogated Mansur but had never asked him about the IED attack, a previous threatening phone call made to the lieutenant, a confirmed attempted February attack or his trips to Syria.  Instead, they had only asked him about his possession of illegal weapons and his current employment.

Apparently, carrying the name of one of the largest Sunni families in Iraq had made the Al-Qaeda operative untouchable and prompted U.S. officials to release him.

Now, put yourself in the Lieutenant’s position.

Can you fault him for wanting to learn the entire truth about Mansur’s activities that likely resulted in the deaths of two U.S. soldiers?  I cannot.

How do you explain the lieutenant’s decision to strip Mansur naked and kill him at close range in a culvert?  Without going into all of the details of what took place prior to the shooting, I direct those who think Lieutenant Behenna deserves the punishment he received for killing Mansur to an article I published in February 2010.

Notably, the article includes the text of the sworn affidavit, dated April 21, 2009, in which Dr. Herb MacDonell — a government witness who was never allowed to testify during the lieutenant’s trial — explains how knowledge he obtained while waiting to testify in the case could have changed dramatically its outcome.  For good measure, I share the text of that affidavit again below:

I was retained by the government to testify as an expert witness in bloodstain analysis.  On 16 December 2008 I received a FedEx package from Captain Megan Poirier.  It contained ten envelopes of photographs and reports as well as a video of the scene.  Included was a report by Barbara Liveri, and the autopsy report done by an Iraqi doctor.  Prior to trial, I told the government that using only the photographs at the scene and the nature of the surfaces where the bloodstains were located made it difficult to reach any definitive conclusions.  I had been contacted before trial by Jack Zimmerman, one of the lawyers for First Lieutenant Behenna and told him the same thing.  I was set to travel to Fort Campbell on Wednesday, February 25, 2009, to return on Friday, February 27, 2009.  I was called and asked to come a day earlier, which I did.  I sat in on the testimony of Dr. Paul Radelat and Mr. Tom Bevel.  They testified on Wednesday.

At a recess on Wednesday, I was in the prosecutor’s office in room 13 in the courthouse.  While talking with Dr. Berg about the bullet wounds Ali Mansur received, Dr. Berg gave me information I previously did not have.  Dr. Berg told me that the wound trajectories for both the chest wound and the head wound were horizontal and essentially parallel.

After thinking about this new information, I did a demonstration to show the only logical explanation which was consistent with the autopsy findings, the bloodstains, the final resting position of the body, and the time between shots.  I had Sergeant MacCauley stand directly in front of me, and facing me.  I asked him to raise his right arm a little and then I poked my right index finger in to the right side of his chest under his arm and said, “Bang!  You have just been shot, so drop down.”  The sergeant dropped to his knees and as his head passed in front of my finger, I said, “Bang!  You have been shot again.”  I remarked that this was consistent with the physical evidence.  All three prosecutors, Captains Poirier, Roberts, and Elbert were present when I gave this demonstration and informed them of my opinion.

On Thursday morning during one of the breaks I examined the 9mm bullet and saw it had struck a hard object while traveling backwards.  This is consistent with the bullet tumbling as it exited on of Ali Mansur’s wounds.  The uniformity of the extruded lead into a disk-like configuration shows it was traveling in a horizontal trajectory if the surface it struck was a flat, very coarse, vertical surface.  Logically, that could have been the culvert’s concrete wall.

On Thursday afternoon, the day after this demonstration, I listened to Lt. Behenna testify.  I had seen no written statement made by him.  This was the first time I learned what he said had happened.  After Lt. Behenna described the shooting, I turned to Dr. Berg and told him, “That is exactly what I told you guys yesterday.”  There was a recess about 5:00 pm and Lt. Behenna was still on the witness stand.  I was told by Captain Poirier that I would not be needed, and a flight was arranged for me for that evening.  I told Captains Poirier and Roberts that I could stay another day if necessary. They told me my testimony would not be needed and I could leave to get my flight.

When I went back to room 13 to get my hat, coat, and briefcase the captains on the prosecution team were already in that room.  As I gathered my things I reminded them that although the scenario I had presented to them the day before was unlikely, it still was the only theory I could develop that was consistent with the physical evidence.  It was also exactly the way Lt. Behenna had described the events.  Their reaction was noticeably cold.  I went back into the courtroom and went over to Jack Zimmerman.  As I was putting on my coat I remarked that I was sorry I was leaving because I would have made a good witness for him.  He asked why, and I told him I was a government expert, and could not discuss it with him until after the trial.  He asked me not to leave but I did.  I did not believe it would have been proper for me to have told Attorney Zimmerman any more than I did.  I was not “eager to communicate” with him or I would have told him my concern at that time on Thursday.

I expected that the prosecutors would tell Mr. Zimmerman what I had told them.  When I was released without being called as a defense witness, and had returned to Corning, New York, I was concerned.  I consulted two friends, a Supreme Court judge and a lawyer, and decided to check with Captain Poirier to ensure she had passed on the opinion I had given the prosecutors Thursday afternoon when I was getting my hat, coat, and briefcase.

From reading the judge’s ruling, I believe the misunderstanding may have resulted from the way I interpreted the questions asked during my telephone testimony on Saturday, February 28, 2009.

When I testified that I told Dr. Berg, “That is exactly what I told you guys yesterday,” and did not remember telling my reaction to any other person, I meant right there at that moment in the courtroom.  There was no one else but Dr. Berg sitting nearby who had witnessed my demonstration the day before.  The prosecutors were at counsel table then.

However, at the next recess, when I went to get my hat, coat, and briefcase, I specifically told the three prosecutors in their office in room 13 the same thing I told Dr. Berg.  As I testified on February 28, 2009, “And as I was leaving I told the prosecuting group, I said, “That was exactly what I told you.’”

I do not feel that it is fair to put the opinion I related to Dr. Berg and Captains Poirier, Roberts, and Elbert on Thursday in quotation marks.  Until Wednesday afternoon I had not been told the wound trajectories for both shots were horizontal and parallel.  I had not been provided the bullet to examine.  The scientific process required me to consider the physical and medical evidence in reaching my final conclusion.  That is why I wanted to see the bullet on Thursday.  When I heard Lt. Behenna describe what happened, I did not say other witnesses were lying, or that my conclusion was based on my opinion of the Lieutenant’s credibility.  My expert opinion was based on the fact that the Lieutenant’s description as to how the shooting occurred fit the physical evidence.

I have consulted and testified in many trials, and I know what exculpatory evidence is.  I firmly believe the jury should have heard my testimony.

After reading everything above, can you really fault Lieutenant Behenna for his actions?  I can’t.

Do his actions deserve 15 years in prison?  I think not.

Unfortunately, members of the Court of Appeals of the Armed Forces voted, 3-2, in favor of upholding his conviction.  So what’s next?

Americans who disagree with the CAAF decision should implore the presidential candidate who wins the privilege of serving as our next Commander-In-Chief should make it his top priority to grant clemency to Lieutenant Behenna.  I’m willing to be Lieutenant Behenna will pledge never to kill Ali Mansur again.

For more details about Lieutenant Behenna’s case, read Carrie Fatigante’s nine-part series that I published in December 2009.  To read about the more recent developments (newest to oldest), click here.

*I know the article was published at least three years ago, because I cited it in a piece published June 4, 2009.

Bob McCarty is the author of Three Days In August (Oct '11) and THE CLAPPER MEMO (May '13). To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August (Oct ’11) and THE CLAPPER MEMO (May ’13). To learn more about either book or to place an order, click on the graphic above.

Soldier’s Parents: ‘FIGHT IS FAR FROM OVER!’

EDITOR’S NOTE:  Six days ago in my post, Appeals Court Upholds Army Officer’s Conviction, Ignores Evidence in Death of Al-Qaeda Operative, I shared news about Michael C. Behenna, the Army Ranger officer convicted of unpremeditated murder in the death of Ali Mansur, a known Al-Qaeda agent operating near Albu Toma, an area north of Baghdad.  Today, I share an update from Scott and Vicki Behenna, the parents of this brave warrior:

Clockwise from upper left: Michael’s family; Michael, Michael and his girlfriend, Shannon; and Michael as a youngster.

To the thousands of Michael Behenna supporters,

We are pained to share with you that the Army Court of Appeals has upheld Michael’s conviction and denied him a new trial.  The appeal process took over two years (six months longer than is allowed by law) and their ruling was an absolute punch in the gut to justice for a young man who fought so bravely for this country.

Back in March of 2009, the sting of Michael’ conviction was eased somewhat by the knowledge that critical evidence was not heard at trial which made us hopeful for a successful appeal.  During the trial, from beginning to end, the military argued Michael executed the al-Qaida cell leader Ali Mansur while he was seated on a rock.  But in their appeal brief the military changed gears and argued that it didn’t matter how Mansur was killed, because Michael lost his right to self-defense the moment he pointed his weapon at Mansur.

From our experience in the civilian appellate process, we felt confident that a review of what had occurred during the trial would uncover the egregious errors committed by the prosecution and the trial judge, including the Brady law violation involving non-disclosure of the PROSECUTION expert witness’s opinion that the forensic evidence supported Michael’s testimony of self-defense as the ‘only logical explanation’ of what occurred in that Iraqi culvert.

However, the twisted logic of the Appeals Court not only agreed with the trial judge, but even introduced language in their ruling that was never even part of the original trial.  The substance of this appellate opinion was void of any indication that the facts and issues were really evaluated to a logical legal conclusion. The following quotes used in the appellate opinion are indicative of what the appellate court used as a basis for their decision and should strike fear in every soldier and Marine serving in a combat zone:

Commenting on Michael pointing his weapon at Mansur (a known al-Qaida member who both Michael and Army intelligence believed was involved in the blowing up of Michael’s convoy); “If, confronted by this demonstration of DEADLY FORCE, Ali Mansur, under these circumstances, attempts to turn the very same Glock pistol towards appellant, his assailant, there can be no escalation sufficient legally to excuse Ali Mansur’s killing.”   By this logic, every time a soldier points his gun at anyone, whether at a checkpoint or entering a village, they have assaulted those people by virtue of pointing their gun at them and if someone gets shot then they should be brought up on charges of murder.  No consideration is even given that this is a war zone.

When confronted with Mansur standing and reaching for Michael’s weapon; “There is no evidence that Ali Mansur made contact with the appellant’s weapon. At that point, the appellant (Michael), in full battle armor, with much of his platoon standing nearby, ready to defend  him, did not keep moving to the left away from the victim into the vast expanse of desert, did not shout for assistance, but instead shot the victim two times.”  So if a police officer in America has his gun pointed at a known killer and that killer suddenly lunges for his gun the police officer’s only option is to turn and run while yelling for backup?  Seriously, who comes up with this nonsense!  Unfortunately, the entire Appellate opinion was full of this kind of logic.

We are to going to appeal to the final level, the Court of Appeals of the Armed Forces, but their opinion will take at least eight months to a year before it is issued.  Despite losing the first two rounds to a corrupt and outdated military justice system that refused to guarantee one of the most basic rights that Michael and his men fought for – the right to a fair trial, there is one positive to mention:  CAAF is a civilian court that is supposed to be completely removed from all military influence.  That is a good thing…for what we have learned through this ordeal is that the Military Justice System is in fact beyond broken.

As one article on military corruption put it, ‘Military justice for the majority is prefabricated according to the wishes of the local Commander, and the “trial” or “court-martial” is tantamount to a pre-ordained verdict of GUILTY.  How could any court proceeding be considered fair when the “convening authority,” by right of title, is given the power to select the judge, the jury and defense and prosecution attorneys? It may go “unsaid,” but the implication is very clear – if the convening authority “sees fit” to bring about a court-martial, then the accused can be assumed to be guilty.  In the U.S. military, the court-martial conviction rate of 98% “rivals that of Communist China.”  Innocent until proven guilty” by an “impartial judge” is the right of every American. The military deserves a jury that can seek out the truth without fear of retaliation.’ 

We want you to know that despite everything that has happened to him over the past three plus years, Michael is doing well.  In the next week or so, we will be sending out a letter that Michael has written to all of you – his incredible supporters who have stood beside him throughout all of this madness.

Please continue to contact your Congressional delegations to put pressure on the Army regarding Michael’s case.  And, most importantly, please continue to write to Michael.*

All of your efforts have helped us to spread Michael’s story as we promised him we would do when he was hauled away in handcuffs over two and a half years ago.  For Michael and the other Leavenworth 10 warriors who are behind bars and the thousands of brave soldiers and Marines who are on the front lines facing an enemy that wants to kill them and a JAG corp that wants to imprison them – THIS FIGHT IS FAR FROM OVER!

Respectfully,

Scott & Vicki Behenna
Proud Parents of 1LT Michael Behenna
www.DefendMichael.com

*Write to Michael at the following address:

Michael Behenna #87503
1300 N. Warehouse Road
Fort Leavenworth, KS  66027-2304

If you enjoy this blog and want to keep reading stories like the one above, show your support by using the “Support Bob” tool at right. Follow me on Twitter @BloggingMachine. Thanks in advance for your support!

Tune In For Talk of Military Justice Gone Awry (Update)

Be sure to LISTEN LIVE Friday at 10 a.m. Central as I make another guest appearance on Commonsense Coalition Talk Radio, a program hosted by Beth Schoeneberg that airs ONLINE and on 43 stations in 19 states.

I’ll be talking with Schoeneberg about stories of military justice:

The first is the story of how the U.S. Army Court of Appeals upheld Wednesday the conviction and sentence of Army Ranger 1Lt Michael C. Behenna while ignoring evidence that showed he acted in self-defense in killing a known Al-Qaeda operative in Iraq; and

The second is the story of Army Special Forces Sgt. 1st Class Kelly Stewart, a Green Beret who was released from the U.S. Military Disciplinary Barracks at Fort Leavenworth March 31 after spending two years behind bars based on a wrongful conviction.  My soon-to-be-released book tells Stewart’s story.

Hope you’ll tune in!

UPDATE 7/29/11 at 9:41 p.m. Central:  Listen to the podcast of the broadcast.

UPDATE 9/29/11 at 8:21 p.m. Central: Three Days In August.

If you enjoy this blog and want to keep reading stories like the one above, show your support by using the “Support Bob” tool at right. Follow me on Twitter @BloggingMachine. Thanks in advance for your support!

Appeals Court Upholds Army Officer’s Conviction, Ignores Evidence in Death of Al-Qaeda Operative

I’m on the road right now, but when I came across some terrible news this afternoon that I simply had to share:  The U.S. Army Court of Criminal Appeals rejected the appeal of Michael C. Behenna of Edmond, Okla., and upheld his murder conviction and 15-year prison sentence at the U.S. Military Disciplinary Barracks at Fort Leavenworth.

1st Lt. Michael Behenna

Who is Michael Behenna?  He is the Army Ranger first lieutenant who, on July 31, 2008, was charged with the premeditated murder of Ali Mansur, a known Al-Qaeda agent operating near Albu Toma, an area north of Baghdad.  He is the one-time leader of the 18-member Delta Company, 5th Platoon of the Army’s 101st Airborne Infantry Division who, seven months later, was convicted of unpremeditated murder and sentenced to 25 years confinement — later reduced to 15 — at Fort Leavenworth.

Why do I staunchly support Lieutenant Behenna?  Because even the government’s top witness, Dr. Herb MacDonell — a man who wasn’t allowed to testify after new evidence was shared with him and he told prosecutors he believed the young officer was innocent.

Below is an excerpt from a December 2009 post, one of the more than four dozen posts I’ve written about Lieutenant Behenna’s case, that outlines the forensics expert’s position:

An e-mail Dr. Herbert Leon MacDonell sent to Capts. Meghan Poirier, Jason Elbert and Erwin Roberts — Army prosecutors all — just after 4 o’clock in the afternoon Feb. 27, 2009, should have warranted their attention for several reasons, but they opted to treat the information it contained in exactly the same manner as they had treated it when delivered in person a day earlier.

Michael Behenna

1st Lt. Michael Behenna

Largely as a result of the prosecutors’ decisions, Army Ranger 1st Lt. Michael Behenna is now serving a 20-year sentence at Fort Leavenworth after being convicted by a seven-member court-martial panel of unpremeditated murder in the shooting death of Ali Mansur, a known Al-Qaeda operative.

Why should the prosecutors have paid attention to what Dr. MacDonell had to share with them?

For starters, they should have paid attention, because Dr. MacDonell is the expert witness in blood stain forensics they had flown to Fort Campbell, Ky. to testify in the case. Now serving as director of the Laboratory of Forensic Science in Corning, N.Y., Dr. MacDonell’s expert forensics 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. In other words, he’s no slouch when it comes to investigations.

For reasons inexplicable, prosecutors opted not to call upon Dr. MacDonell to testify in the case; therefore, he was never able to share with the court something new he had learned about the case — something vital that prosecutors had not shared with him.

Thanks, however, to the fact that he sent that single e-mail, Lieutenant Behenna’s parents, Scott and Vicki Behenna, now hold on to an ever-so-slim hope that they can bring an end to the family nightmare involving their son, now 26.

Read the unedited text of Dr. MacDonell’s e-mail message below and judge for yourself whether you think Lieutenant Behenna deserves, at a minimum, a new trial or, more appropriately, a full presidential pardon:

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

The details above offer just a snippet of the injustice that has befallen this young officer and his family.  In another post, Photos Show Scene Where Trail of Injustice Began, I shared photos of the shooting scene as well as the text of the sworn affidavit (below), dated April 21, 2009, in which Dr. MacDonell explains how knowledge he obtained while waiting to testify in the case could have changed dramatically its outcome:

I was retained by the government to testify as an expert witness in bloodstain analysis. On 16 December 2008 I received a FedEx package from Captain Megan Poirier. It contained ten envelopes of photographs and reports as well as a video of the scene. Included was a report by Barbara Liveri, and the autopsy report done by an Iraqi doctor. Prior to trial, I told the government that using only the photographs at the scene and the nature of the surfaces where the bloodstains were located made it difficult to reach any definitive conclusions. I had been contacted before trial by Jack Zimmerman, one of the lawyers for First Lieutenant Behenna and told him the same thing. I was set to travel to Fort Campbell on Wednesday, February 25, 2009, to return on Friday, February 27, 2009. I was called and asked to come a day earlier, which I did. I sat in on the testimony of Dr. Paul Radelat and Mr. Tom Bevel. They testified on Wednesday.

At a recess on Wednesday, I was in the prosecutor’s office in room 13 in the courthouse. While talking with Dr. Berg about the bullet wounds Ali Mansur received, Dr. Berg gave me information I previously did not have. Dr. Berg told me that the wound trajectories for both the chest wound and the head wound were horizontal and essentially parallel.

After thinking about this new information, I did a demonstration to show the only logical explanation which was consistent with the autopsy findings, the bloodstains, the final resting position of the body, and the time between shots. I had Sergeant MacCauley stand directly in front of me, and facing me. I asked him to raise his right arm a little and then I poked my right index finger in to the right side of his chest under his arm and said, “Bang! You have just been shot, so drop down.” The sergeant dropped to his knees and as his head passed in front of my finger, I said, “Bang! You have been shot again.” I remarked that this was consistent with the physical evidence. All three prosecutors, Captains Poirier, Roberts, and Elbert were present when I gave this demonstration and informed them of my opinion.

On Thursday morning during one of the breaks I examined the 9mm bullet and saw it had struck a hard object while traveling backwards. This is consistent with the bullet tumbling as it exited on of Ali Mansur’s wounds. The uniformity of the extruded lead into a disk-like configuration shows it was traveling in a horizontal trajectory if the surface it struck was a flat, very coarse, vertical surface. Logically, that could have been the culvert’s concrete wall.

On Thursday afternoon, the day after this demonstration, I listened to Lt. Behenna testify. I had seen no written statement made by him. This was the first time I learned what he said had happened. After Lt. Behenna described the shooting, I turned to Dr. Berg and told him, “That is exactly what I told you guys yesterday.” There was a recess about 5:00 pm and Lt. Behenna was still on the witness stand. I was told by Captain Poirier that I would not be needed, and a flight was arranged for me for that evening. I told Captains Poirier and Roberts that I could stay another day if necessary. They told me my testimony would not be needed and I could leave to get my flight.

When I went back to room 13 to get my hat, coat, and briefcase the captains on the prosecution team were already in that room. As I gathered my things I reminded them that although the scenario I had presented to them the day before was unlikely, it still was the only theory I could develop that was consistent with the physical evidence. It was also exactly the way Lt. Behenna had described the events. Their reaction was noticeably cold. I went back into the courtroom and went over to Jack Zimmerman. As I was putting on my coat I remarked that I was sorry I was leaving because I would have made a good witness for him. He asked why, and I told him I was a government expert, and could not discuss it with him until after the trial. He asked me not to leave but I did. I did not believe it would have been proper for me to have told Attorney Zimmerman any more than I did. I was not “eager to communicate” with him or I would have told him my concern at that time on Thursday.

I expected that the prosecutors would tell Mr. Zimmerman what I had told them. When I was released without being called as a defense witness, and had returned to Corning, New York, I was concerned. I consulted two friends, a Supreme Court judge and a lawyer, and decided to check with Captain Poirier to ensure she had passed on the opinion I had given the prosecutors Thursday afternoon when I was getting my hat, coat, and briefcase.

From reading the judge’s ruling, I believe the misunderstanding may have resulted from the way I interpreted the questions asked during my telephone testimony on Saturday, February 28, 2009.

When I testified that I told Dr. Berg, “That is exactly what I told you guys yesterday,” and did not remember telling my reaction to any other person, I meant right there at that moment in the courtroom. There was no one else but Dr. Berg sitting nearby who had witnessed my demonstration the day before. The prosecutors were at counsel table then.

However, at the next recess, when I went to get my hat, coat, and briefcase, I specifically told the three prosecutors in their office in room 13 the same thing I told Dr. Berg. As I testified on February 28, 2009, “And as I was leaving I told the prosecuting group, I said, “That was exactly what I told you.’”

I do not feel that it is fair to put the opinion I related to Dr. Berg and Captains Poirier, Roberts, and Elbert on Thursday in quotation marks. Until Wednesday afternoon I had not been told the wound trajectories for both shots were horizontal and parallel. I had not been provided the bullet to examine. The scientific process required me to consider the physical and medical evidence in reaching my final conclusion. That is why I wanted to see the bullet on Thursday. When I heard Lt. Behenna describe what happened, I did not say other witnesses were lying, or that my conclusion was based on my opinion of the Lieutenant’s credibility. My expert opinion was based on the fact that the Lieutenant’s description as to how the shooting occurred fit the physical evidence.

I have consulted and testified in many trials, and I know what exculpatory evidence is. I firmly believe the jury should have heard my testimony.

Of course, there’s much more to this story; therefore, I strongly encourage you to read the dozens of other posts I’ve published about Lieutenant Behenna, then write your congressman and demand justice for this soldier.

To learn more about Lieutenant Behenna’s life before and after he joined the Army, click here to download “The Michael Behenna Story” (26 pgs., PDF) by new BMW contributor Carrie Fatigante.

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.com.

UPDATE 7/28/11 at 4:12 p.m. Central:  Story cross-posted at Andrew Breitbart’s BigGovernment.com and BigPeace.com.

UPDATE 8/02/11 at 8:36 a.m. Central:  Read this update, Soldier’s Parents: ‘FIGHT IS FAR FROM OVER!’, from Michael Behenna’s parents.

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