Prosecutors Oppose Art 32 Delay And Delay Action on Defense Mitigation Specialist

Prosecutors have voiced objection to anything more than a one-week continuance in the Article 32 hearing which is now scheduled to commence on 1 June.  They appear uncaring about that fact that the new member of the Defense Team is not expected to arrive at Fort Hood for several more months or the fact that basic discovery associated with the case (e.g. FBI reports and classified/restricted investigations) still have not been provided to the Defense counsel.  Most disturbing, the Army continues to stonewall Defense efforts to get its requested mitigation specialist on board.  In its most recent statement about this issue, the prosecutors have argued, “The Government notes that as the present case has not been referred to any level of court-martial, the defense is not presently entitled to a government funded mitigation specialist as a matter of right.”   It is time for them to stop playing games.  Dilatory actions like this is what gives military justice a bad rep – fundamental fairness and a balanced presentation of evidence apparently is of no concern to this crop of prosecutors.

Defense Team Requests Article 32 Hearing Continuance

Earlier today, the Hasan Defense Team submitted a request to the Article 32 Investigating Officer, requesting the Article 32 hearing  (currently scheduled to commence on June 1st) be continued until October 1st.  Compelling reasons for the requested delay include:  substantial pretrial discovery still has not been provided to the Defense; the Defense Team (Galligan, Martin, and Poppe) will not be fully assembled for several more months; and Army prosecutors and the Special Court-Martial Convening Authority have improperly denied employment of the Defense Mitigation Specialist.

Valid Criticism of the Death Penalty

As of March 2005, 119 innocent people have been released from death rows across the country since 1973 (Northwestern University, DP Information Center). Researchers Radelet and Bedau found 23 cases where innocent people were executed since 1900 (In Spite of Innocence, Northeastern University Press, 1992). Murder Victims’ Families for Reconciliation, Inc.

It’s Carried Out Disportionately: Thurgood Marshall said it was racist, unfair to poor and the mentally retarded, and often ends in the state sanctioned murder of innocents. Less than 1% of all murderers are condemned to death 2% of death row inmates are actually executed.  Over 113 people on death row have been exonerated since 1973 68% of the death penalty convictions between 1973 – 1995 were reversed Today more than 75 death row inmates have spent 20 years on the Row.

Capital punishment is applied to a higher percentage of minorities than whites.

It is not cost effective: Capital murder trials threaten to bankrupt townships costing taxpayers: $2 million in legal fees to try a death penalty case, nearly 4 times higher than comparable murder trials. The automatic appeal process costs up to $700,000 in legal fees. $1.2 million in execution costs. 1973 -1998, Florida spent $57 million on 18 executions.

It is does not deter crime: The two states with the most executions in 2003, Texas 24, and Oklahoma 14, saw increases in their murder rates from 2002 to 2003. Both states had murder rates above the national average in 2003: Texas – 6.4, and Oklahoma – 5.9. The top 13 states in terms of murder rates were all death penalty states. The murder rate of the death penalty states increased from 2002, while the rate in non-death penalty states decreased.

The Death Penalty has been abolished in all other Western Countries and civilized societies, except the US: The European Union (EU) is opposed to the death penalty in all cases and is “deeply concerned about the increasing number of executions in the United States of America (USA), all the more since the great majority of executions since reinstatement of the death penalty in 1976 have been carried out in the 1990s. Furthermore, in the US, young offenders who are under 18 years of age at the time of the commission of the crime may be sentenced to death and executed, in clear infringement of internationally recognized human rights norms.” Even Russia and Turkey have abolished the death penalty which is condemned by the European Union and the World Court, which claimed that the U.S. violated the rights of 51 Mexicans on death rows in eight states.

EMCT – Acronym for US Army Death Squads

EMCT – Execution Management and Coordination Team

Official Army Definition: Represenative from HQDA key staff elements responsible for monitoring and coordinating the execution policy and procedures to conduct a presidentially approved death sentence.

                                                                                   Army Regulation 190-55

How Does The US Army Kill Defendants? Call It “A Procedure” And Issue “A Reg”

Army execution procedures are no more humane or legitimate than those employed by State and Federal authorities and that have been under continuous Constitutional challenge.  The current Army procedure is referenced below:  
Chapter 3
Execution Procedures
 3–1. General
 3–2. Execution by lethal injection
 a. The execution is conducted by means of continuous intravenous administration of a lethal substance, or substances,in a quantity sufficient to cause death. All lethal substances, or residue thereof, remaining after completion of the execution will be disposed of appropriately. 
b.  The condemned prisoner will be moved from his cell to the execution area prior to the execution with a time duration limited to the minimum aount of time absolutely necessary to prepare the prisoner for execution.
(1) The condemned prisoner will be placed on the execution table and restrained by means of appropriate fasteners to ensure safety and security of the prisoner and EWT personnel.
 (2) Once the prisoner is secured to the table, the Execution Team will insert a large–bore intravenous channel into an appropriate vein, assure the flow of a normal saline solution, and connect the condemned prisoner to the electrocardiograph machine.
(3) The execution area will be cleared of all nonessential personnel. At that time, the execution area will be opened and made visible to all assembled witnesses.
(4) Those personnel approved to witness the execution will be escorted from the witness assembly area to the witness viewing rooms prior to the opening of the execution area. Witnesses arriving after others have been escorted to the witness viewing rooms will normally not be permitted to enter or view the execution. Once in the viewing area, all witnesses will receive a final briefing on the specifics of the procedure they are about to observe and the behavior and decorum expected. Those who cannot maintain the expected level of behavior will be removed.
 (a)  At no time will media representative conduct intereviews of witnesses while congreated in the witness assembly or viewing areas. 
(b) At the time designated for the execution, the CMDT, USDB, will read aloud the charge or charges, the finding of the court, the sentence, and the execution orders. The CMDT, USDB will then order the execution to begin. 
(c)  Following the CMDT’s reading of documents in (b), above, the execution team will administer the lethal agents.
(e) A senior medical officer, appointed by TSG, will certify death and provide a report of death at the morgue or medical facility. 
 (f) The senior medical officer will notify the Fort Leavenworth Casualty Office of the prisoner’s death.  Persons authorized to direct disposition may desiante the Army to provide the mortuate benefits.  
Military executions will be by lethal injection.

The High Cost of Death Penalty Prosecutions

“Every dollar we wpend on a capital case is a dollar we can’t spend anywhere else. . . . . We have to let the public know what it costs to process a capital case”

                               John M. Bailey, Chief State’s Attorney, Connecticut

Just or Not, Cost of Death Penalty Is a Killer for State Budge

Hasan Defense Continues Battle For A Mitigation Specialist

A copy of the most recent Defense demand for appointment of mitigation specialist is attached in the Motions and Legal Memo Section.  Otherwise, Click Here:  

Hasan – Mitigation Specialist Request_Hasan 26 Mar 10

It is incredible to think that the Hasan Defense Team even has to engage in this kind of protracted battle with Army prosecutors.  

Defense Asks Office of General Counsel (DA) To Weigh In

As reported in earlier posts, the Special Court-Martial Convening Authority (Colonel Lamb) has denied the defense request to employ, at government expense, the services of Ms. Juliet Yackel as a mitigation specialist.  Colonel Lamb has been informed that Ms. Yackel is extremely well-qualified to perform this vital role in the Hasan case.  Nevertheless, Colonel Lamb has twice now rejected the Defense request based on the legal advice of the prosecutor, Colonel Michael Mulligan.  Mulligan argues that because Ms. Yackel is also a licensed attorney, to employ her as a mitigation specialist is tantamount to hiring her as an attorney.  Colonel Mulligan’s position is not supported by case law, regulation, or even common sense.  Actually, it flies in the face of the fact that Ms. Yackel was approved recently by the Lieutenant General at Fort Lewis to serve in this same capacity for the Defense in an ongoing capital murder court-martial, United States v. Davila.  The Hasan defense believes that, in deciding this issue, the Fort Lewis 3-star general (advised by a Staff Judge Advocate) got it right and that the Fort Hood Colonel (advised by prosecutor Mulligan) got it wrong.  It is patently unfair that these military defendants should be treated so differently – why else call it a Uniform Code of Military Justice?   Colonel Lamb has, by accepting the lead prosecutor’s advice, impermissibly interfered with the composition of the Defense Team and built error into the case.  See e.g. United States v. Kreutzer, 61 M.J. 293, 295 (CAAF 2005)(erroneous denial of mitigation specialist was “error of constitutional magnitude.”). 

In an attempt to resolve this important issue so that the Defense can begin to properly prepare its case, the question of Ms. Yackel’s eligibility has been presented to the Office of General Counsel, Department of Army, for appropriate staffing and resolution.  The Defendants in the Hasan and Davila courts-martial should be treated fairly and uniformly.  Although Colonel Mulligan may be the legal advisor and mouthpiece for Colonel Lamb, he certainly does not speak for the Department of Army – as he now purports to do.   The Hasan defense has heard enough about Colonel Mulligan’s personal view of the issue – we now anxiously await word from a much higher source, i.e. the Department of the Army.

US Army Discriminates Against Muslim Major

For several months, the Hasan Defense Team has been requesting the expert assistance of Ms. Juliet Yackel as a defense mitigation specialist.   However, the Defense has been frustrated in its efforts to get this important segment of the Defense Team finalized so that we can begin preparing for the Article 32 Investigation.   The Special Court-Martial Convening Authority, Colonel Lamb, initially denied the request for Ms. Yackel, arguing inter alia that because she also happened to be an attorney (as are many of the foremost mitigation specialists in the United States), her appointment would run afoul of restrictions on funding a civilian attorney for a military defendant.   Efforts to get the Commanding General at Fort Hood to reverse Colonel Lamb’s decision were unsuccessful and so the Defense provided Colonel Lamb with additional information related to the issue in a request for reconsideration.  For example, he was reminded that both government and defense military counsel frequently retain the assistance at government expense of experts in various fields and who also happen to be attorneys.  More significantly, he was advised that the US Army had approved Ms. Yackel as a defense requested mitigation specialist in the on-going capital murder case United States v. Davila, at Fort Lewis, Washington. 

Today, Colonel Lamb on again denied the defense request.  A copy of his decision can be seen here.  Hasan – CA Action on Defense Re-Request for Mitigation Specialist – 23 Mar 10

Colonel Lamb seems transfixed on the notion that the Defense is trying to retain another attorney.  He obviously overlooks several important facts and continues to premise his decision on questionable legal norms.  Let’s not forget that he is being advised by several prosecutors.  The bottom line is that the prosecutors are trying to dictate the composition of the defense team. 

Colonel Lamb’s position in this important matter is best described as unreasonable and discriminatory.  There is simply no basis for distinguishing the Defense Requests for Ms. Yackel as a Mitigation Specialist in the courts-martial of Davila (Fort Lewis) and Hasan (Fort Hood).  A General (with the advice of a Staff Judge Advocate) approved the request at Fort Lewis and a Colonel at Fort Hood (advised by prosecutors) has denied what is virtually the same request.   The US Army should be expected to speak with one voice. 

Against this backdrop, it is not surprising that many outside observers will invariably conclude that the reason Major Hasan is not being provided the services of Ms. Yackel is because he is Muslim.

Defense Objects to One-Sided Article 32 Investigation

 Yesterday, the Defense filed an objection to the current memorandum issued by Colonel Lamb wherein he directs the Article 32 Investigating Officer to consider any evidence of “aggravating factors” as defined in RCM 1004.  To ensure a full, fair, and complete investigation, the Defense has requested that Colonel Lamb instruct the Investigating Officer that his inquiry should also be directed to the presence of “mitigating” facts as well.  Action by the Special Court-Martial Convening Authority on this important matter will dictate whether Major Hasan can be assured an impartial and fair hearing is conducted.  For a complete copy of the Defense submission – Click Here  Hasan – Amend 32 Appointment 23 Mar 2010

Bell County Officials Refuse Defense Request To Inspect Jail Facility

Following notice that the Bell County Commissioners and the US Army signed a contact to house Major Hasan in the Bell County Jail for 180 days at a cost of almost $207,000.00, the Defense requested an opportunity to examine the specific section of the jail where he would be incarcerated.  Jail officials did not immediately grant the request – instead, they said they would get back with the Defense.  Now a day later – and still there has been no approval from Jail officials.

Army To Pay Bell County $207,000 For 6-Months Jail Space

The US Army executed a contract with the Bell County Commissioners Court which provides for housing Major Hasan in the Bell County Jail.  The cost: $206,796.30 for the brief term of 183 days .  Thereafter, the contract will have to be renegotiated.

The expenditure is a financial windfall for Bell County, but it serves no legitimate governmental purpose.  The Defendant is not a flight risk and his confinee status while at the Brooke Army Medical Center  (BAMC) has not presented any problems.  Indeed, the safety and security of Major Hasan could have, for far less cost, been achieved by housing him in Darnell Hospital or in unoccupied billeting at Fort Hood.  More disturbing, the contract does not adequate provide for Major Hasan’s continuing serious medical problems and the Bell County Jail Infirmary is not properly equipped or staffed to handle his unique medical and rehabilitation needs.  In short, Major Hasan should continue to be in a hospital, not a jail.