HUNTSVILLE, Ala. (WHNT) — The Alabama Court of Criminal Appeals has taken the rare step of ordering oral arguments in the murder case of former Huntsville Police Department officer William “Ben” Darby.

The appeals court issued an order Monday notifying attorneys in the case that it wants to hear argument Nov. 10 on the defense’s claim that Darby was denied a public trial and on their claim the judge erred by not giving a specific jury instruction on the use of deadly force from the perspective of a police officer facing a split-second decision.

Darby is appealing his conviction and 25-year prison sentence in the 2017 on-duty shooting of Jeffrey Parker at Parker’s Huntsville home. Parker called 911 saying he was suicidal and Parker was the third officer on the scene.

Testimony and bodycam footage from his trial showed Darby was the third officer on the scene. When he arrived, the first officer on the scene was pointing her gun down while she was talking to Parker, who held a gun to his own head. A second officer was partially in the doorway of the home. Darby entered the home with his service shotgun, told the first officer to raise her gun and issued multiple orders for Parker to drop the weapon pointed at his own head. Parker didn’t drop his weapon and Darby fired once, killing Parker.

A Huntsville Police Department shooting review board found Darby had acted within HPD policy, but he was indicted by a Madison County grand jury in August 2018.

He went on trial in May 2021 and was found guilty of murder. The defense has argued Parker’s holding a gun and refusing officer commands created a deadly threat to the other officers and that Darby acted to protect himself and those officers. Bodycam video shows Darby was in the house roughly 11 seconds before shooting Parker.

The prosecution argued Parker was calm and talking to officers and there was no imminent threat when Darby shot him.

The court is asking lawyers for both sides to argue on two issues of Darby’s appeal: If a live-feed camera showing the trial was improperly turned off at times during the trial, and, if the judge erred with her jury instruction on self-defense for a police officer.

Huntsville defense attorney Ron Smith, who is not involved in the Darby case, told News 19 today it is rare for the Alabama Court of Criminal Appeals to grant oral arguments. Smith estimated about 2 percent of appeals before the court are granted oral arguments.

The court’s request seems to invite argument about how Alabama’s self-defense law applies to police shootings and, what is considered  a public trial during a pandemic.

“I think you can infer that some justices are very interested in the arguments,” Smith said.

Darby’s appeal argues that a livestream camera —  allowing spectators to watch the trial under COVID-19 protocols — was routinely turned off, preventing spectators from watching aspects of the case. The defense says that action by the court that denied Darby his constitutional right to a public trial.

“It’s unique when you appeal that you do not have to show that it’s been violated,” Smith said. “You don’t have to show any specific harm or prejudice to your case, because it’s called ‘structural error,’ it’s so fundamental to our way of doing things, you just basically have to show there’s a violation.”

During the proceedings, the camera was regularly turned off during sidebar conferences between the lawyers and the judge at the bench. The timing of other instances where the camera may have been turned off will be key to the court’s review, Smith said.

“Whether there’s a violation is going to be real fact-specific as far as what was turned off, what was not. And that’s all going to be something that should be in the court record,” he said.

Darby’s lawyers also say the judge should have allowed a jury instruction they requested, on how the use of deadly force should be viewed from the perspective of a reasonable officer facing a split-second decision.

In the defense’s appeal brief, they said the court rejected this proposed instruction:

“The reasonableness of an [officer’s] actions in using deadly force may be objectively reasonable judged from the perspective of a rea[1]sonable officer on the scene, the fact that officers are forced to make split second decisions, [and] in light of the facts and circumstances confronting them at the time.”

The court’s instruction on deadly force cited Alabama’s self-defense law, it didn’t make an additional provision for police officer self-defense as Darby’s lawyers had requested.

The Alabama self-defense law reads, in part,  A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (5), if the person reasonably believes that another person is: (1) Using or about to use unlawful deadly physical force.”

Smith said in self-defense claims, two elements are important.

“You have to show a subjective belief that you’re in fear of death or serious physical injury,” he said. “The other aspect is it has to be objectively reasonable.”

The background of the person making the self-defense claim is usually part of that review, Smith said, as the parties try to prove, or disprove the tests of fear and reasonableness. Darby’s job will be a factor in the review, Smith said.

“It is important to determine who is this officer, what’s his background, what kind of situations has he been in before,” Smith said. “So I think the fact that he was an officer should definitely come into play because it’s a police officer making these decisions, not a school bus driver, not some other occupation.”

The Court of Criminal Appeals will hold the oral arguments at Samford University.