WASHINGTON — Judges on the military's highest appeals court voiced concern on Monday that the jury in U.S. Army 1st Lt. Michael Behenna's murder trial received confusing instructions about how they should evaluate his claim of self-defense.
“I read this instruction about four times, and it is very confusing,” Judge Scott W. Stucky said as the U.S. Court of Appeals for the Armed Forces heard oral arguments in the Edmond soldier's appeal.
Another judge questioned whether the instruction from the trial judge in 2009 even misstated the law regarding self-defense.
Army Capt. Stephen E. Latino, who represented the Army at the arguments, conceded Monday that the trial judge's instructions were confusing. But Latino said that didn't affect the outcome of Behenna's 2009 trial because Behenna couldn't legally claim self-defense since he was pointing a weapon at an unarmed man.
Behenna, 28, was convicted by a general court-martial of unpremeditated murder in a combat zone in Iraq for killing an Iraqi man that Behenna had been questioning about terrorist activities.
Behenna testified at his trial that he shot the man, Ali Mansur, twice after Mansur threw a piece of concrete at him and lunged for his gun.
Behenna is serving a 15-year sentence at the military prison at Fort Leavenworth, Kan.
Several members of Behenna's family — including his parents, Scott and Vicki Behenna, of Edmond — attended the arguments in Washington on Monday. It is not clear when the court will issue an opinion in the case.
Issues on appeal
The court accepted Behenna's appeal to hear two issues: whether the judge's instruction regarding self-defense deprived Behenna of a fair trial; and whether Army prosecutors withheld evidence that would have helped Behenna's defense during the trial.
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.