FORT HOOD SHOOTINGS
A special mySA report
Army Maj. Nidal Malik Hasan, charged in November’s shooting rampage at Fort Hood that left 13 people dead and 32 others wounded, will be moved from San Antonio to a county jail near the military post.
Bell County Sheriff Dan Smith issued a statement Monday, saying Bell County commissioners court formalized a contract with Fort Hood officials in preparation for receiving Hasan at the jail in Belton.
The statement said that, for security reasons, Smith would not release the date and time of Hasan’s transfer from Brooke Army Medical Center in San Antonio.
Hasan, who is paralyzed from the waist down and incontinent, has been recovering at the military hospital under heavy guard.
He is scheduled for an Article 32 hearing on June 1, but his lawyer, John Galligan, said he will ask that it be postponed because the Army has not handed over all the discovery he has requested.
“Sadly, this is another example where the Army has kept the defense in the dark,” Galligan said. “I learned about the move (Monday) from the press.”
“He’s still in need of substantial rehabilitation,” Galligan said. “A hospital is the proper place for him.”
Nobody disputes the fact that there is significant and a very troubling racial disparity in how the United States military applies the death penalty. Currently, there are seven persons on death row at the Fort Leavenworth Disciplinary Barracks (DB). Of those,
– five (5) are African-American;
– one (1) is a Pacific Islander;
– one (1) is Caucasian.
On a national level, approximately 50 percent of the death row inmates are members of a minority. By comparison, the military has an 86 percent minority death row population.
The attached article provides an outstanding historical analysis of the role of mitigation specialists in the military justice system. The thrust of the article is consistent with the position advanced by the Hasan Defense Team.
Several weeks have now passed and Colonel Lamb still has not acted on the Defense Team request for reconsideration of his refusal to authorize retainer of the mitigation specialist requested by the Defense. Army prosecutors – who are also providing legal advice to Colonel Lamb – have been asked to inform the Defense when Colonel Lamb will act on this important issue.
Prejudice to the Defense is clear and substantial. The Article 32 hearing is currently scheduled to commence on June 1st. At that time, it is anticipated that the trial counsel (prosecutors) will present evidence that they consider to be “aggravating factors” associated with the charged offenses. Indeed, Colonel Lamb has also directed the Investigating Officer (Colonel Pohl) to consider if such aggravating factors are present. Colonel Lamb’s directive is clearly one-sided. To ensure a full, fair and complete investigation, the Investigating Officer should also be directed to consider the presence of “mitigating evidence” – particularly since that is the countermeasure to the presence of “aggravating evidence”. Support for the Defense position may be found in Rule for Court-Martial (RCM) 405 which specifically provides, “The defense shall have full opportunity to present [at the Article 32 hearing] any matters in defense, extenuation, or mitigation.” Against this background, the refusal to grant the defense request for its mitigation specialist constitutes a denial of procedural due process. The net effect of Colonel Lamb’s refusal is to render Major Hasan’s defense team “ineffective”, as that term has been construed by the appellate courts. See Pamela Blume Leonard, A New Profession for an Old Need: Why a Mitigation Specialist Must Be Included on the Defense Team, 31 Hostra L. Rev. 1143, 1146 (2003).
In capital cases, “the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304 (1976). in order to properly present the client’s character and other relevant information . . . . the defense must develop a comprehensive biography of the client. In capital cases, that biography is sometimes called a social or psychosocial history. A social history is “a multi-generational inquiry aimed at identifying the genetic predispositions and environmental influences which molded the client’s life and defined his or her range of choices.” See Russell Stetler, Mitigation Evidence in Death Penalty Cases, 23 The Champion 35, 38 (1999).
In the penalty phase, the prosecution will focus on whether thecrime committed deserves the death penalty. It is the defense counsel’s job – indeed, their ethical responsibility – to refocus the inquiry on whether this particular human being, considering the circumstances and events that shaped his life and behavior, is so hopelessly irredeemable and wicked that he must be “eliminated from the human community.” Stephen B. Bright, Developing Themes in Closing Argument and Elsewhere: Lessons from Capital Cases, 27 No. 1 Litig. 40, 42 (2000).
The Defense Counsel’s duty to investigate mitigation is clear. As the United States Supreme Court has recognized, defense counsel has the duty to “discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Wiggins v. Smith, 539 UI.S. 510, 524 (quoting ABA Death Penalty Guidelines section 11.4.1.(C)(1989)); see also Williams v. Taylor, 529 U.S. 362 (2000)(counsel ineffective in capital sentencing for failure to perform the necessary investigation into the defendant’s life). Defense Counsel’s duty requires investigating:
the client’s life history, and emotional and psychological make-up, as well as the substantive case and defenses. There must be an inquiry into the client’s childhood, upbringing, education, relationships, friendships, formative and traumatic experiences, personal psychology, and present feelings. The affirmative case for sparing the defendant’s life will be composed in part of information uncovered in the course of this investigation. The importance of this investigation, and the thoroughness and care with which it is conducted, cannot be overemphasized.
See Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L. Rev. 299, 323-324 (1983).
The duty to investigate survives even a client’s request that no mitigating evidence be presented. Rompilla v. Beard, 125 S. Ct. 2456 (2005)(even when capital defendant and his family have stated that no mitigating evidence is available, defense counsel had duty to make reasonable efforts to obtain and review court file of prior conviction that counsel knew would probably be relied upon as evidence of aggravation at penalty phase). Without knowing the full story of the client’s life and background, defense counsel cannot advise the client about what is being forfeited by foregoing mitigation evidence. See Hardwick v. Crosby, 320 F.3d (1127, 1190 n.215 (11th Cir. 2003)(“Even if Hardwick did ask [counsel] not to present witnesses at the sentencing proceeding . . . . [counsel] had a duty to Hardwick at the sentencing phase to present available mitigating witnesses as Hardwick’s defense against the death penalty.”); Blanco v. Singletary, 943 F.2d 1477, 1501-03 (11th Cir. 1991)(counsel ineffective for “latching onto” client’s assertions he did not want to call penalty phase witnesses and failing to conduct an investigation sufficient to allow their client to make an informed decision to waive mitigation; see, e.g. Kimmelman v. Morrison, 477 U.S. 365, 385 (1986)(“viewing counsel’s failure to conduct any discovery [regarding suppression motion of seized items] from his perspective at the time he decided to forgo that state of pre-trial preparation and applying a ‘heavy measure of deference’ to his judgment, we find counsel’s decision unreasonable, that is, contrary to prevailing professional norms.”
A “half-hearted” effort to investigate mitigation will not do. Wiggins, 539 U.S. at 526. “In assessing the reasonableness of an attorney’s investigation, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Id. at 527.
Against this background, it is patently obvious why Colonel Lamb’s initial denial of the Defense request was misplaced. The Defense request for reconsideration affords him the opportunity to reverse course and ensure that Major Hasan is accorded procedural due process and effective defense counsel. Both the law and simple notions of fundamental fairness support the Defense position.
On March 15th, the Defense requested that the Special Court-Martial Convening Authority, Colonel Lamb, reconsider his earlier denial of the Defense Mitigation Specialist. Now, almost two weeks later, Colonel Lamb still has not acted on this important matter. A copy of the recent request for reconsideration is attached. Hasan – SPCMCA Mit Spec Request 15 Mar 10
Until this important matter is resolved, the Hasan Defense is effectively precluded from preparing its mitigation case to be presented at the upcoming Article 32 hearing. No explanation has been given for the delay in resolving this important matter. Perhaps it is because Colonel Lamb’s legal advisors (the prosecutors in this case) have been traveling about the country, at government expense, to observe other capital murder cases and/or to interview witnesses!
The delay in resolving this matter is unwarranted and prejudicial.
Included among the outstanding Defense discovery requests is a complete copy of the Task Force Report (Protecting the Force) authored by the former Secretary of the Army, Togo D. West, Jr. That Report was prepared after he and other high level officials conducted a 45-day on site review at Fort Hood.
The final Report was composed of two parts: the first part was released to the public and generally focused on Army policies and operational responses at Fort Hood on November 5, 2009. The second part, which was classified, focused directly on Major Hasan.
Although the Defense has requested production of the complete Report, Army prosecutors have not yet released the classified portion which, of course, is clearly relevant to the ongoing case.
Against this background, the Defense was surprised to learn that the Honorable Togo D. West, Jr. was included among various speakers at the recent “2010 Judicial Conference and Continuing Legal Education Program of the United States Court of Appeals for the Armed Forces.” A copy of the CLE Program is attached. Hasan – 2010 Judicial Conf
It is quite the anomaly that the Honorable West serves as a guest lecturer on the very subject of his Report before an audience of appellate judges while the Defense still waits to be in receipt of the complete Report.
For several weeks now, Major Hasan has been denied access to an electronic Koran reader, provided by the Defense Team, because Army commanders have not yet decided whether he will be permitted to have access to the device. No explanation has been provided as to why it taking Army officials so long to decide this matter.
Of course, this is just another example of the discriminatory and unreasonable conditions of pretrial confinement imposed in the Hasan case. Major Hasan was earlier ordered not to use any Arabic during his daily prayers.
However viewed, these restrictions on Major serve no valid governmental purpose.
Click to Listen: KCEN Interview
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Posted: // Mar 02, 2010 12:35 PM CST
BELTON – Officials with the Bell County Sheriff’s Office say no decision has been made to accept Fort Hood shooting suspect Major Nidal Hasan to the Bell County Jail.
They say Hasan’s transfer is not imminent.
The press release from the office reads: “Despite numerous media reports and claims by Hasan’s attorney, nothing has changed since the last press release issued from this office. Negotiations with Fort Hood are still ongoing. No contract has been finalized and no decision has been made to accept Hasan at the Bell County Jail. If and when an agreement is made to accept Hasan, his transfer date and time will not be announced in advance.”
BELTON, TEXAS — For days, retired Army Col. John Galligan tracked each wrenching update about the shooting rampage at Ft. Hood, the place where he had spent the final months of a 30-year military career.
As a former military lawyer, he ran through his mind the legal issues in a possible case against Maj. Nidal Malik Hasan, the man accused in the shootings, including whether Hasan could get a fair trial there.
Within 24 hours, Galligan was introducing himself to the soldier whose picture he had seen in newspapers and on national television.
“Anytime anyone wants me to help a soldier, I’m pleased,” said Galligan, 61, who operates a private practice in Belton, about 16 miles east of Ft. Hood. “It’s an extension of my service. Soldiers defend us, and I think it is only proper we defend them.”
On Tuesday, the day after he went public as Hasan’s attorney, Galligan was at the Bell County Courthouse handling state felony cases, which make up about half his business. He attended the sentencing of a man already convicted of sexual assault and prepared for a trial next week for another suspect on the same charge.
In between, Galligan was bombarded by reporters who showed up at his office and with calls from friends and strangers.
Fellow defense attorneys, he said, support him in his quest to make sure Hasan’s rights are protected as a military investigation into the massacre continues. But others questioned how he could have accepted a case involving the man accused of killing 13 people and wounding dozens on a U.S. military post.
Galligan said he has a standard answer for similar questions when he represents suspected rapists and child molesters. He said it applies to Hasan as well. “My goal is to ensure that the defendant receives a fair trial,” Galligan said.
The lawyer would not comment on his conversation with Hasan, other than to say that the two talked for about 30 minutes. However, he did say that one of his first actions afterward was to notify investigators that Hasan had an attorney and would not be answering questions.
Galligan said he has requested that a military-appointed lawyer work with him.
“John, he is one who believes in the Constitution,” said Joe Trevino Jr., president of the Belton Concerned Community Alliance and a friend of Galligan’s. “People are justified in their sadness and anger, but with John, our American justice system is still the place that guarantees citizens have the right to legal representation.