EDMOND, Okla. — During the Jan. 9 parole hearing before the Army Clemency and Parole Board in Washington, D.C., Brett Behenna spoke to the panel members.
His brother, Michael Behenna, 30, was serving a 15-year sentence after being convicted of unpremeditated murder in the killing of an Iraqi national in 2008. The Edmond, Okla., solider testified he acted in self defense while on mission in Iraq.
Vicki Behenna, Brett’s mother, said Brett talked about how he was expecting his first child this summer and the prospects of Michael not being able to be present for the moment.
“He’s going to be there,” Vicki said Wednesday after learning Michael will be released on parole on March 14.
The hearing was part of a lengthy process in the military justice system.
On March 20, 2009, Army Ranger 1st Lt. Behenna was sentenced to 25 years in prison for killing Ali Mansur, a purported al-Qaeda operative, while serving in Iraq.
According to the family and testimony, Mansur was a member of an al-Qaeda cell operating in the lieutenant’s area of operation, and Army intelligence thought he organized an attack on Behenna’s platoon in April 2008, which killed two U.S. soldiers and injured two more.
Army intelligence ordered the release of Mansur, and Behenna was ordered to return the man to his home. During the release, Behenna questioned Mansur, seeking information about other members of the purported terrorist cell and financial supporters.
The government prosecuted Behenna for premeditated murder but amended the case to the lesser charge of unpremeditated murder.
According to family members, government forensic expert Dr. Herbert MacDonell told prosecution attorneys the only logical explanation for what happened was that Mansur had to be standing, reaching for Behenna’s gun when he was shot.
Behenna testified he turned his head toward his interpreter while he was interrogating Mansur, who lunged for his gun. Behenna then fired a controlled pair of shots. His explanation matched what MacDonell told the prosecution team during a private meeting the night before the trial.
When defense counsel asked prosecutors whether they had any exculpatory evidence about Dr. MacDonell, they denied possession of such evidence, Vicki Behenna said.
In closing arguments before a military panel of seven officers, none of whom had combat experience, prosecutors argued Behenna’s testimony that Mansur was reaching for his gun was impossible based upon the evidence. The prosecution’s public theory was that Mansur was executed while seated on a rock.
Wednesday morning after learning about Behenna’s pending release, Jack Zimmermann, Behenna’s lead defense counsel during earlier portions of the case, said it was highly unusual for someone to be granted parole at a first hearing.
“A logical explanation would be that one or all members on the board didn’t think he was guilty,” Zimmermann said from his Houston office.
Zimmermann said if the family so desires, Behenna could seek to exonerate himself through a legal process. Behenna would have to show he was somehow deprived of a constitutional right during the trial, Zimmermann said.
Family members have said Michael’s case involved a violation of the Brady Rule, named for Brady v. Maryland, 373 U.S. 83 (1963), which requires prosecutors disclose materially exculpatory evidence in the government’s possession to the defense.
The defendant bears the burden of proving the undisclosed evidence was material, and the defendant must show that there is a reasonable probability there would be a difference in the outcome of the trial had the evidence been disclosed by the prosecutor.
Jeffrey Fisher, a law professor and co-director of Stanford Law School’s Supreme Court Litigation Clinic, worked on part of Behenna’s case. Last year, the U.S. Supreme Court denied a review.
Zimmermann said after Behenna is released, he will experience a transition period as he returns to civilian life. He will sleep in a different bed, eat different food, leave friends in the barracks behind and spend time with his family members and his girlfriend, Zimmermann said.
“It’s going to be a wonderful reunion,” he said.