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Major Hasan to Face Court Martial — What to Expect

First, stop hoping that officials and the media will speak out about the Fort Hood shooter's guilt. That creates grounds for an appeal.

by
Dan Miller

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November 13, 2009 - 8:49 am
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Court martial procedures under the Uniform Code of Military Justice and the Manual for Courts Martial are in some respects similar to those in civilian courts, but there are notable differences. As a former JAG officer, it is my belief that the court martial proceedings, in general, are better and fairer to the accused and also more likely to result in justice than those in many civilian jurisdictions. Here are the steps I think have been or will be taken:

1. An Article 32 investigating officer, equal or senior in rank to Major Hasan, was appointed by the commanding general at Fort Hood (or by the commanding general, with authority to convene a general court martial, of a subordinate command there to which Major Hasan was assigned).

2. The Article 32 officer conducted an investigation and interviewed witnesses. Major Hasan had an opportunity to testify, but on advice of counsel probably declined to do so soon after he ceased to be comatose. He was also entitled to cross-examine witnesses against him, normally through counsel. At the conclusion of the Article 32 investigation, the investigating officer apparently recommended to the convening authority that Major Hasan be tried on first degree murder charges.

3. The convening authority apparently agreed, and the trial has been or will be assigned to a military judge, almost certainly a full JAG colonel with many years of judicial experience. General courts martial are almost always the province of lieutenant colonels and above. There will be at least twelve members of the court of rank equal or superior to that of Major Hasan, if possible. At Fort Hood, it should certainly be possible to detail twelve or more senior majors or above to the court martial. The officers to be so detailed are to be, in the judgment of the convening authority, those “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” The convening authority has no further authority during the trial except perhaps to dismiss the charges. He is not permitted to exert “command influence” over the proceeding.

“No authority convening a general, special, or summary court martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”

In about 1969, when I was a student at the JAG judge’s school, it was emphasized that several commanding generals had been relieved of their commands and otherwise punished for attempting to exercise command influence. I understand that it is now rare.

4. Numerous pretrial motions will be heard and decided by the judge. There will also be ample opportunity for discovery by defense counsel and for gathering witnesses, psychiatric experts, and others. Then the trial will take place, and the prosecuting attorney, called “trial counsel,” will present his case. I would be very surprised were trial counsel to be lower in rank than major. Although at the end of the trial counsel’s presentation the defense could ask for summary acquittal, that seems at the moment highly unlikely to be granted.

5. Next, defense counsel will have the opportunity to present his evidence and arguments. I hope that he will do a very good job of it, since otherwise a guilty verdict could be overturned on the basis of inadequate representation of counsel. The defense is entitled, under the Manual for Courts Martial, to have the assistance of trial counsel in securing witnesses and in other matters. The Army will have appointed a defense counsel for Major Hasan, but since he has apparently already retained a retired JAG colonel, appointed counsel will serve in an advisory capacity. At the moment, an insanity defense seems possible; it seems quite unlikely that Major Hasan will testify under oath, since that would open the door to cross-examination. He could make an unsworn statement, but they are not given significant weight by military courts.

6. At the conclusion of the evidentiary phase and arguments by counsel, the judge will instruct the military jury on the law and they will then decide on guilt or innocence based on the law as explained to them; the law as explained by the military judge will take precedence over any contrary interpretations presented by trial or defense counsel in their closing arguments.

7. Should Major Hasan be found guilty, there will be a second phase to determine the appropriate punishment. That should be interesting, with multiple counts of first degree murder. The death penalty — rarely imposed by a court martial — will be a possibility. Major Hasan will have an opportunity to make an “unsworn statement,” not subject to cross-examination, or a sworn statement, subject to cross-examination. Any such statement, sworn or unsworn, is subject to rebuttal by the trial counsel.

8. Following the conclusion of the trial, the record will be sent to the commanding general who convened the court. With guidance from his staff judge advocate, he will have the authority to do just about anything he wishes, except increase the severity of the charges or the court’s findings on them, or the penalty. After sending the case to the court martial and appointing the court and the judge, that will be the first opportunity for the convening authority to say or do anything; generals have been summarily relieved from their duties for exercising “command influence” over courts martial.

9. The record is then sent to the Army Review Board, where the Government Appellate and Defense Appellate Divisions will present their cases. Should the Review Board affirm the results of the court martial, the proceeding will almost certainly go to the Court of Military Review, where the Government and Defense Appellate Division counsel will brief and argue their cases.

10. There may be collateral appeals to the U.S. Supreme Court.

It is anybody’s guess what sorts of evidence will be presented by trial or defense counsel, and there may well be some surprises in store.

I shall attempt updates as the matter proceeds.

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Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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