In reality, none of these matters should affect the trial in the slightest. In a criminal trial, the conclusions of other fact-finders about matters relevant to the guilt or innocence of the accused are inadmissible. This is because, in our system, the verdict must be rendered by the jury. Trial judges thus make every effort to keep conclusions by outside factfinders from the jurors — just as jurors are constantly told to avoid reading media accounts about the case.
Of course, juries will often know or learn about extrajudicial factfinding anyway. After all, a defendant would not be standing trial in the first place unless government lawyers had determined he was guilty (it is unethical to prosecute otherwise). There would also be no trial unless a grand jury (or its military equivalent, an Article 32 investigative body) had been persuaded that there was sufficient cause to indict.
Moreover, it is often very obvious that defendants on trial — especially in a murder trial — are incarcerated. Invariably, there is heavy security in the courtroom; sometimes the trial testimony touches on things that happened in jail, unavoidably bringing the defendant’s detention to the fore; and sometimes the lawyers or the defendant himself will blurt out something that makes it clear that the defendant, though presumed innocent, is in custody and thus, in a sense, being treated as if he is already guilty.
Juries, however, are always instructed to ignore these things and decide the case based solely on their own assessment of the proof. The law presumes that jurors follow these instructions — and experience shows that jurors tend to weigh the evidence carefully in deliberations and to acquit where the evidence is weak. And again, military officers on a panel must be trusted to follow legal instructions not to factor in conclusions by outside investigators — the awarding of Purple Hearts to Hasan’s victims no more proves his guilt than the denial of Purple Hearts proves his innocence.
Most preposterous of all to this former prosecutor is the military’s silly assertion that awarding the Purple Heart to Hasan’s victims would enable Hasan’s lawyers to claim prejudice. Much of what prosecutors do in litigation involves responding to frivolous defense motions – that’s the job. Claims that defense lawyers now have no real chance of succeeding routinely get posited anyway, for two reasons: (a) Defense counsel seed the appellate record with any conceivable reason to get a conviction overturned (if counsel fails to raise a matter, it is deemed waived, so the lawyer’s incentive is to raise everything); and (b) defense counsel realize that, if the defendant is convicted, they will inevitably be accused of having performed incompetently – by making lots of motions, even weak ones, counsel help the reviewing court conclude that counsel provided zealous defense.
If I were a government lawyer, I’d be licking my chops to respond to defense lawyers who were claiming prejudice based on awarding Purple Hearts to the victims. Not only are the victims extraordinarily sympathetic – and some of them performed heroically. Remember that we’re talking here about a “Purple Hearts are prejudicial” claim being advanced by lawyers who themselves have already announced that Hasan wanted to plead guilty. Many litigation arguments are stressful. For a prosecutor, that one would be fun.
Hasan was an international terrorist plant who infiltrated our military and killed and wounded our troops in an atrocity that claimed many more lives than the jihadist bombing of the World Trade Center in 1993. He was not merely a domestic imitator of al Qaeda; he was in frequent communication with Anwar al-Awlaki. Awlaki was a significant al Qaeda operative according to the Obama administration. That’s why the president authorized his killing — which would be a murder if it were not justified by Awlaki’s status as an enemy combatant under the laws of war.
Palpably, what Hasan executed, with Awlaki’s encouragement, was a jihadist atrocity — one that precisely targeted American armed forces personnel who were about to deploy to war zones to fight Hasan’s fellow jihadists.
To be sure, Hasan’s situation is highly embarrassing for the government. His communications with Awlaki were well-known to government officials. (And need we be reminded of Awlaki’s own communications with Pentagon officials? Of the FBI and Justice Department’s decision to release him after 9/11?) The failure to investigate Hasan competently and prevent him from being in a position to attack American troops was a gargantuan blunder; the effort to cover it up by labeling a jihadist attack as “workplace violence” has been even more offensive.
The awarding of Purple Hearts to Hasan’s victims would carry an implied acknowledgement by the government of its abysmal performance. But it would have nothing to do with, and no meaningful effect on, Hasan’s murder trial. For the administration to claim otherwise is fraudulent.