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Supremes asked to affirm right to defend against terror attack

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The family and supporters of a U.S. soldier convicted and sentenced to prison for shooting and killing a terror suspect who apparently lunged at him and tried to grab his weapon say they are preparing to ask the U.S. Supreme Court to intervene in the case and affirm the soldier's right to self defense.

The U.S. Court of Appeals for the Armed Forces (CAAF) recently upheld a lower court's decision to convict 1st Lt. Michael Behenna on a charge of unpremeditated murder in a combat zone for the death of "suspected terrorist Ali Mansur."

The conviction has been affirmed throughout the military court system even though testimony from a man summoned by the prosecution as an expert witness said that the evidence indicated Mansur was lunging at Behenna and probably trying to grab his weapon during an "unauthorized" interrogation.

In an email now to supporters, Behenna's parents, Scott and Vicki, who have generated support for their son with the Defend Michael website, said, "The [appeals] court agreed that favorable testimony had been withheld by the prosecutors and that the trial judge's instructions were in fact erroneous; but the majority ruled that none of that mattered because Michael had lost his right to self-defense the moment he pointed a gun at Ali Mansur.

"It is important to note that the government's argument in the appeal was not that Michael had murdered Mansur (they have all but conceded that was not the case), but rather than he had no right to defend himself in a war zone once he pointed a gun at Mansur (regardless of how many American soldiers Mansur had killed as the leader of an al-Qaida cell)," they wrote.

In fact, one government attorney argued Behenna lost any right to self defense against whatever Mansur would try to do.

"We have one more chance in the court system and that is to take Michael's case to the United States Supreme Court. We know that the odds are long, but after consulting with lawyers who have tried cases in this venue we have taken their advice to pursue a petition to have Michael's case heard before the highest court in the land," the Behennas wrote.

In the CAAF, Jack Zimmerman, Behenna's attorney, argued the court should overturn Michael's 15-year sentence based on several key errors made by the judge and prosecutors.

Also raised was the issue of a prosecution decision to prevent a key witness who would have supported Behenna's explanation of the shooting from testifying.

During the trial, Herbert MacDonell stated the evidence indicated that Mansur was actually standing and reaching for Behenna's gun when he was shot. MacDonell has over 50 years of experience in forensic science and participated in investigations of the Martin Luther King Jr. and Sen. Robert Kennedy assassinations and also testified in the O.J. Simpson murder case.

The following day, Behenna told the jury that, while interrogating Mansur, he turned back to talk to the interpreter. At that time Mansur, who was only three to four feet away, lunged for Behenna's gun, and Behenna fired. The explanation was identical to what MacDonell told prosecutors the evening before.

During a brief recess, MacDonell met with the prosecutors and said the evidence indicated "Michael must be telling the truth," and in the interest of justice they should put him on the stand.

The prosecution team then told MacDonell his services were no longer needed and he would be flown home that night. As he left the courtroom he told Zimmerman that he would be a great witness for Behenna. He stated he could not elaborate as he was still an expert witness for the government but told them to ask the prosecutors.

The following day Zimmerman asked the prosecutors if they had any exculpatory evidence that should be provided to the defense. The prosecution said it did not.

Following Behenna's conviction, but prior to the sentencing, MacDonell submitted an email to the prosecution expressing his concern over not being able to testify.

He said: "As I demonstrated to you and to the other two prosecutors, Dr. Berg, Sgt. McCaulley and Sgt. Rogers, from the evidence I feel that Ali Mansur had to have been shot in his 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."

MacDonell continued: "Admittedly, this would be an amazing coincidence, however, it fits the facts and ? I cannot 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 9 mm flattened out bullet which was tumbling? When I heard Lt. Michael Behenna testify [Thursday] as to the circumstances of how the two 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 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."

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