The family of an Edmond soldier convicted of murdering an Iraqi while fighting overseas received good news Friday morning. The highest military appeals court decided to hear Lieutenant Michael Behenna's case.
His mother said it was a small victory but a lot of work still needs to be done.
"We're not out of the woods yet," said Vicki Behenna. "This is just an agreement to hear his case."
Michael Behenna had not even heard the news Friday. He is serving his 15-year sentence in the Fort Leavenworth, Kansas, prison.
This appeal could overturn that conviction and the sentence for killing Ali Mansur in 2008.
Behenna previously testified he shot in self-defense when Ali Mansur reached out for his gun.
Prosecutors argued that Behenna killed Mansur by shooting him in the head, execution style.
"Those shots are horizontal and parallel to each other, inconsistent with the fact that I'm standing above you, you're seated on a rock and I'm shooting down to your head," explained Vickie Behenna.
Vicki Behenna said the jury did not hear key testimony from prosecutors' own forensic expert.
"When the government's own forensic expert tells them, ‘Your theory is wrong. It's not an execution. I believe that Mansur was standing at the time he was shot, that this was the first shot. It was not a shot to the head. As he fell to the ground, the second shot occurred,'" said Behenna as she recalled. "That evidence didn't get to the jury."
Behenna, a prosecutor herself, explained this omission of testimony was a violation of the Brady Rule which states that all evidence a prosecutor has that may negate the defendant's guilt, must be presented. She said that omission of evidence is enough to overturn the conviction.
"The jury didn't hear that both experts, defense and prosecution experts, agreed that the man was coming towards [Michael] when he got shot," she said.
Behenna's mother said the defense team will now focus on the Brady Rule during the appeal Until then, she said Michael would have to wait in his prison cell.
"I was so afraid that Michael would become angry and bitter and give up," she said. "But he hasn't."
Michael was not aware of the good news Friday since he can only communicate by letters or face-to-face. Vickie said she would go to Fort Leavenworth on Saturday to deliver the good news.
She said they do not expect a ruling on the appeal until late summer or early fall. They now have 30 to 60 days to file a brief, then the government has 30 to 60 days to respond before the court even hears the case.