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An unlikely witness provides one last hope for soldier in murder case

The U.S. Army lieutenant shot an unarmed Iraqi detainee in a culvert, but was he acting in self-defense? Forensic evidence materializes, but not before a verdict is formed.

September 14, 2009|Joe Mozingo

At the Dillard's counter in Oklahoma City, Vicki Behenna was buying a beachy canvas purse for summer when her oldest son called from Iraq.


"Hey Mike, how are you doing?" she asked. She was relieved to hear his voice, but quickly sensed the strain in it.

When the connection failed, she kept the phone in her hand, waiting. In the last few weeks, she had been desperately worried about him.

Michael Behenna, 25, was an Army lieutenant leading an infantry platoon on his first tour in Iraq. He had just been home to Oklahoma for a three-week leave. He was distant and withdrawn, tormented by a roadside bomb that killed two of his soldiers.

For The Record
Los Angeles Times Tuesday, September 15, 2009 Home Edition Main News Part A Page 4 National Desk 1 inches; 37 words Type of Material: Correction
A killing in Iraq: An article in Monday's Section A about the trial of Army 1st Lt. Michael Behenna, who shot an unarmed Iraqi, misstated the age of bloodstain expert Herbert MacDonell as 88. He is 81.

His family tried to get Michael out to reengage in his old world. They went horseback riding in the Arbuckle Mountains, hosted game nights of Scattergories and Pictionary. None of it could get him out of the storm in his mind.

In the mall during that visit, his younger brother Brett asked him a question about his platoon. Michael didn't say anything. His lips tightened and his eyes teared up. Brett had never seen him cry. He quickly put his arm around Michael's shoulder and pulled him in close so other shoppers couldn't see him. Michael struggled to say something but couldn't. He fumbled to get sunglasses out of his pocket. His mom and girlfriend rushed over, and they walked to Vicki's car, where he wept inside alone.

Now Vicki's phone rang again, and she rushed into the open mall to hear him better. Children's laughter from the play area resounded from the floor below. She could barely make out his words -- something about him being removed from his base, an investigation.

"An investigation on what?" Vicki asked.

He told her it was about the death of an Iraqi. "If they just know what happened out there it will be OK," he said.

Vicki Behenna was a 20-year federal prosecutor. As a mother, she wanted to hear every detail. But the attorney in her knew that he had to stop talking. If he made some terrible admission, there was no legal privilege protecting her from being called to testify.

"Don't tell me anything," she said.

For the next few weeks, in June 2008, Vicki and her husband, Scott, an FBI intelligence analyst, could barely eat or talk. They couldn't ask questions or get facts.

Vicki needed to see for herself how Michael was doing. She knew he needed counseling. He had tamped so much down. If only he could come home.

A dread took root like a tumor in her gut, a fear of what he might do to himself. She wouldn't form the words to give it currency. But it was there, swelling, finding resonance in the heavy hopelessness of his voice.

She asked if he was still working out at the gym.

"The person I worked out with is no longer here," he said. "I can't go back there."

His weight-lifting partner, Adam Kohlhaas, had been killed in the attack.

"Are you sleeping, Michael?"

"No. I'm not."

On July 31, 2008, Behenna was charged with premeditated murder, assault and making a false official statement in the killing of an Iraqi detainee named Ali Mansur Mohamed. A conviction on the charges would carry an automatic life sentence.

Television news crews pulled up outside the Behenna home in Edmond. Scott and Vicki were well known in local law enforcement circles: Scott, a 25-year veteran of the Oklahoma State Bureau of Investigation, had been shot in the head during a shootout with a fugitive in 1987. Vicki was part of the seven-person team that prosecuted Timothy McVeigh.

The Behennas holed up inside, praying, trying just to breathe. They still didn't know what happened.

In bed at night, Vicki's mind lashed about in the vacuum. Was it really Michael? Maybe it was someone else. Maybe it was self-defense. Maybe it was an accident. He wouldn't just kill someone in cold blood.

She knew her son. But she knew how disturbed he was too.

She always cycled back to that dread.

The Behennas talked to dozens of attorneys and hired Jack Zimmerman, a former Marine Corps trial judge and Vietnam vet with two Bronze Stars.

After an Article 32 hearing, the military equivalent of a grand jury proceeding, details emerged in the news. The dead man was an unarmed detainee. His body was found in a culvert, naked, shot in the chest and head, partially burned.

Vicki's inner-mother tried to stifle the inner-prosecutor. She clung to what he had said: "If they just know what happened out there."

She trusted him. But those scant words looked awfully rickety under the weight of the allegations. Why did he take him out in the desert in handcuffs? she thought. Why did he strip him? Why did they burn the body?

Vicki called Zimmerman, wondering if they should try for a plea deal. He assured her that Michael had a plausible defense.

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