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Court upholds GI's conviction in Iraqi's death

Jul. 5, 2012 - 07:08PM   |   Last Updated: Jul. 5, 2012 - 07:08PM  |  
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OKLAHOMA CITY A military appeals court on Thursday narrowly rejected a request by a Fort Campbell, Ky., soldier to overturn his conviction for killing an unarmed Iraqi prison detainee in 2008.

In a 3-2 opinion, the U.S. Court of Appeals for the Armed Forces upheld 1st Lt. Michael Behenna's 2009 conviction for unpremeditated murder in a combat zone. Behenna, who is from Edmond, Okla., is serving a 15-year prison sentence at a military prison in Fort Leavenworth, Kan.

Prosecutors say Behenna took detainee Ali Monsour Mohammed to a secluded railroad culvert and shot him execution-style after interrogating the man at gunpoint about an April 2008 roadside bombing that killed two men under Behenna's command.

Behenna's Houston-based attorney, Jack Zimmerman, argued the conviction should be overturned because Army prosecutors failed to notify the defense that a crime scene expert retained by the military agreed with Behenna's claim that he shot the man in self-defense when the man reached for Behenna's handgun. Zimmerman also maintained the judge at Behenna's military trial gave faulty jury instructions that took away his claim of self-defense.

Although the court agreed the trial judge's instructions were faulty, it determined the error was "harmless" and did not affect the findings or the sentence.

"Even when viewed in the most favorable light, Appellant's own testimony about the events that transpired in the culvert demonstrate that he was the initial aggressor because he brought about the situation that resulted in his killing of (Mohammed)," Judge Scott Stucky wrote in the majority opinion.

Zimmerman said he's disappointed in the court's ruling and plans to discuss available options with Behenna and his family.

"All five judges agreed with us on both of the errors," Zimmerman said. "It's disappointing they wouldn't find that it was prejudicial.

"The majority found he didn't have a right to self-defense, which is hard for us to accept."

An after-hours message left with the U.S. Department of Defense was not immediately returned.

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