The U.S. Army Court of Appeals for the Armed Forces is composed of five civilians. In Behenna's case, the court is hearing an appeal from the U.S. Army Court of Criminal Appeals, which last year upheld Behenna's conviction and sentence.
Houston attorney Jack B. Zimmerman, who is representing Behenna, told the judges Monday that the jury in the case had asked the judge for a written copy of the instructions but that the judge declined and instead read them again.
The trial judge's instructions sought to lead jurors through the legal determinations they would have to make to find Behenna could regain the right to self-defense given his advantage of being armed and wearing armor while the man being questioned was unarmed and stripped naked.
Zimmerman has contended since the 2009 trial that the instructions were too confusing — grammatically and on points of law.
Three of the five judges on the appeals court seemed sympathetic to that argument Monday.
Latino, representing the Army, said the instructions were not “crystal clear,” but he argued that the jury ultimately understood them.
And he said there was nothing Behenna could have done, besides totally withdrawing from the immediate scene, to regain his right to self-defense; because of that, Latino argued, any error the trial judge might have made with his jury instructions was “harmless.”
Zimmerman also said that Army prosecutors should have told him during the trial that their own expert witness was ready to testify that evidence at the scene supported Behenna's story that Ali Mansur had stood up and reached for Behenna's gun. That contradicted the government's assertion that Behenna had shot Mansur while he was sitting on a rock.