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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

Bio

November 13, 2009 - 8:49 am

According to news accounts, of which there have been many, U.S. Army Major Nidal Malik Hasan is to be tried by general court martial on charges that he committed thirteen premeditated murders during his November 5 rampage at Fort Hood. The legal details are seeping out, slowly and sometimes erroneously. The case, as would be expected, has been widely covered by the media, and President Barack Obama has ordered a review of how U.S. intelligence agencies handled information they may have gathered about Hasan following questions about whether authorities may have missed warning signs about him.

With all due respect, this is not what President Obama should have said during his Fort Hood memorial charade, regardless of how much I agree with it:

We have allowed a traitor to gain a position of trust in your midst. We gave him high rank. We gave him the prerogatives and honors due to a member of the medical profession and an officer in the Armed Forces. And he used that position to kill the men and women we are remembering today. We who demand of you the courage to routinely risk your lives in the service of our nation did not ourselves have fortitude to expel a man from the service who by rights should have been gone because we feared criticism. We feared being accused of bigotry. We feared being accused of persecuting a religion. We feared the bad publicity that would come from recognizing the danger signals which have all too tragically culminated in this. It was out of fear that we forbore and men died.

Although I doubt that things said by President Obama will have much impact on how our military feels about the situation, they could have screwed up the military judicial process and provided grounds for appeal.

The legal process is moving far more rapidly than I had expected. Now is the time for restraint by the media and everyone else, lest Major Hasan be found to have been prejudiced by pretrial publicity. President Obama, a lawyer, should know about the deleterious impact of pretrial publicity, as should members of the Congress and even the media. That sort of thing can make it very difficult to empanel a board of officers, and now is not the time for showboating or gathering of political plums.

They should all sit back, calmly and quietly, and allow the military justice procedures to be followed, without providing a basis for a potentially successful appeal in the likely event that Major Hasan is convicted. The Fort Hood commanding general seems, thus far, to have done a good job of not exercising, or even seeming to exercise, command influence over the proceeding which he has apparently designated for general court martial. He should continue to keep as silent as possible, as his staff judge advocate has most likely advised him. This is a big case, and should it get hopelessly screwed up by any ill-advised comments from the commanding general or those on his staff, it could be very embarrassing and conceivably lead to his dismissal. It could also result in a new trial for Major Hasan.

There have been suggestions that Major Hasan may also be charged with the death of the unborn child of a pregnant victim who died during his rampage. The tragic death of an unborn child raises all sorts of legal and emotional questions, and it would be unwise to complicate an already complex legal proceeding by raising them. The penalty for fourteen murders is no greater than for thirteen, and the evidentiary and legal questions would be monumental. To the extent possible, the KISS (keep it simple, stupid) maxim should be followed.

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.

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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