ARLINGTON, Va. â€” In a critical hearing for 1st Lt. Michael Behenna, the Edmond soldier's attorney argued Thursday that Behenna's 2009 conviction for unpremeditated murder should be overturned because key evidence was withheld and the judge failed to give the jury proper instructions.
Jack Zimmerman, of Houston, told the Army Court of Criminal Appeals that Behenna's claim of self-
Zimmerman, who was also Behenna's trial attorney, said the trial judge mangled the instructions he was supposed to give regarding self-
But a military attorney countered that there were no trial errors serious enough to warrant a reversal in Behenna's case.
Army Capt. Madeline Yanford told the panel of three Army colonels that Behenna had no legitimate claim of self-
Behenna, 27, is serving a 15-year sentence at Fort Leavenworth, Kan., for killing Ali Mansur in 2008 in Iraq after questioning him about terrorist activities and his possible role in planting a bomb that killed two members of Behenna's platoon.
The oral arguments on Thursday marked the second important event this month in Behenna's case.
Last week, Behenna's parents, Scott and Vicki, of Edmond, urged the Army Clemency and Parole Board to suspend their son's sentence, or at least reduce it to the point that he would be eligible for parole immediately. A decision on that could come later this month.
Behenna's sentence for unpremeditated murder in a combat zone has already been reduced twice, from the original 25 years.
A decision from the appeals court on the fairness of his trial could take months, Vicki Behenna said after the arguments.
Several members of Behenna's family attended the arguments on Thursday, as did friends and people from out of state who support his cause, including Beverly Perlson, of Chicago, who started the group Band of Mothers to support her own son and other soldiers.
Behenna's judicial appeal focuses primarily on aspects of his self-
Behenna testified at his 2009 trial that Mansur, who had been seated on a rock while being questioned, threw a piece of concrete toward Behenna and then lunged for his gun.
Behenna's appeal could turn on the question of whether he had assaulted Mansur by stripping him naked and threatening him with a gun and thereby lost his right to self-
Judges on Thursday asked both attorneys whether reaching for the gun would be considered escalating the situation to the point that Behenna could claim he had to shoot Mansur to defend himself.
Yanford, defending the military's case, said â€œthere was no possible way Mansur would be able to escalate the force'' since he was unarmed and wearing only sandals while Behenna was in â€œfull battle rattle'' with a loaded Glock pistol.
â€œThe right of self-
One of the judges asked Zimmerman, Behenna's private attorney, whether Behenna could have just evaded Mansur or withdrawn if he was fearful of him taking his gun.
â€œI don't think he had time to withdraw,â€ Zimmerman said, adding that was a question the jury should have been able to deliberate. The jury didn't have the chance because the judge didn't properly explain how Behenna could have retained, or regained, his right to self-defense in the situation.
Zimmerman also told the judges that prosecutors were obligated to disclose to him the private comments made by a forensic expert who was summoned by the government to the trial but wasn't called to testify.
The expert, considered a national authority on blood splatter evidence, was ready to testify that Behenna's story was consistent with Masur's wounds and the way he fell to the ground. As he was leaving the trial, the expert told Zimmerman that he would have made a great witness for him, though he wouldn't elaborate. Zimmerman didn't find out what he meant until after Behenna was convicted. The judge held a hearing on the matter but ultimately went ahead with sentencing.
Col. Kenneth J. Tozzi, the senior judge on the panel on Thursday, pressed Yanford on whether it was important to Behenna's case that the government's own witness had been ready to support the Edmond soldier's
â€œTo me, that seems like a pretty compelling argument that was taken from the defense in this case,â€ Tozzi said.
Yanford said the expert's testimony would have been limited to Mansur's physical position.
â€œHe could only have testified on whether Mansur was standing or sittingâ€ when he was shot, not on whether Behenna had a legitimate self-defense claim, Yanford said.