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Court-Martial Trial Practice

Major Hasan updateMarch 13, 2010

Daily Caller reports that:

Following a two-week absence, the Fort Hood attorney was back at it Friday despite a gag order, blogging on the perceived injustices suffered by his defense team in defending Major Nidal Hasan, the man charged in the shooting deaths of 13 people.

As previously reported by The Daily Caller, John P. Galligan, Hasan’s civilian defense attorney, made waves in the legal community when he launched the high-profile blog to highlight his obstacles in defending the case. The blog was silent for nearly two weeks after the initial controversy erupted, but he’s back, saying: “My blog will continue to highlight how my client is being unfairly treated.”

In my personal opinion, I don’t think it’s a good idea for the attorney representing the specific accused to be blogging about the ongoing case, even though I don’t know of any authority of an Article 32, UCMJ, appointing authority to issue a gag-order to defense counsel – and I include military counsel here.

However, I am also of the belief that the government should also face a gag order.  It is patently unfair for the prosecution and government to have the unrestricted ability to issue press statements and information – which may contain wrong or inflammatory information — or for politicians to be doing the same, and at the same time restrict the defense.

Mr. Galligan says:

“I believe I’m operating in a very, very unique environment, I’m representing a client in a potential court martial process, where there is no judge — I’m still operating in a command driven environment … where everybody from the commander-in-chief on down has already commented on this case and condemned my client.”

“I’m not disclosing anything, my client is getting screwed! How do you think you’d feel when you wake up every day and see on MSNBC or Fox news a tour of your client’s home? Do I have to get a press badge to get that kind of access?! … I’ve gotten more out of the press than I’ve gotten out of the military,” says Galligan.

Perhaps the government should begin to exercise some good judgment and have “no comment,” if for no other reason than to avoid litigating unconstitutionally prejudicial pretrial publicity.

If Mr. Galligan is correct that the Government Representative (there is no trial counsel at an Article 32, UCMJ, stage.  See R.C.M. 405(d)(3)(a),) and the Investigating Officer aren’t providing required information, R.C.M. 405(f)(10) ought to be invoked at some point.  IMHO that rule is actually broader than R.C.M. 701 and does require the government to seek out and provide information.  As to the mitigation expert, well perhaps R.C.M. 405(f)(11) applies.  I know it is routine for the government to deny expert assistance pretrial including at an Article 32, UCMJ, stage, but  . . .  If they are interested in a speedy trial, as they’ve said, why wait until referral (as if referral ain’t gonna happen) which is months away.  Without the mitigation expert how can the defense develop information for submission under R.C.M. 405.

Why Blog? To Ensure Fairness And Respond To Prejudice

Major General Grimsley Denies Defense Requests

     After we waited patiently for almost two weeks, MG William F. Grimsley, Acting Commander at Fort Hood, denied the Defense Request to meet with him in person to discuss several important issues:

–  First, the Defense Team had requested that MG Grimsley transmit the Hasan case to his level, pursuant to Rule for Court Martial 601(f).   In a terse memorandum denying the requested relief, MG Grimsley basically says that he intends to remain out of the case “unless and until this matter is forwarded” to him or other competent authority.  It is absurd to think that the Hasan case will end up on anybody’s desk other than a General Court-Martial Convening Authority.  The effort to keep everything at the Special Court-Martial Convening Authority level is nothing more than a prosecutor’s tactic to build an artificial  firewall around the Commanding General.   But let’s not forget that the Commanding General at Fort Hood, together with his Staff, have already immersed themselves in the Hasan case in numerous ways.  For example, they welcomed and briefed the President of the United States and the First Lady when the latter attended the Memorial Service; the CG and his Staff welcomed the DOD Task Force that was sent to Fort Hood to conduct the 45-day review (see the attached Protecting the Force Report); the CG has already authorized numerous construction contracts to prepare for an Article 32 hearing and eventual trial; the CG has directed a post-wide survey to identify personnel impacted by the events of 5 November; and the CG’s Staff has coordinated the presence and funding of trial counsel (prosecutors) from distant posts.  They have even coordinated the presence of an active duty military judge to serve as the Article 32 investigating officer.   It is simply disingenuous to suggest that the Hasan case is anything other than a case on the fast track for General Court-Martial disposition. 

–  MG Grimsley’s refusal to reverse Colonel Lamb’s decision and to grant the Defense its requested mitigation specialist is particularly disturbing.  Colonel Lamb has already directed the Article 32 investigating officer to determine the presence of  any “aggravating factors specified under RCM 1004”  Simple fairness would seemingly demand that the investigating officer also be directed to consider the presence of “mitigating factor.”  But no, it appears that only a one-sided investigation will be directed.

– As noted in other posts, the Hasan Defense requested the appointment of Ms. Juliet Yackel as its mitigation specialist.  No adequate explanation has been provided for the denial.  It should not be forgotten that Ms. Yackel was approved by the Commanding General at Fort Lewis, Washington, to serve as the Defense mitigation specialist in an ongoing capital murder court-martial (United States v. Davila).   Why should the Hasan Defense Team be treated differently?  Should not the Army be expected to speak with one-voice when addressing the identical issue at Fort Hood and Fort Lewis?  Apparently not – it seems to be wholly legitimate for a female military defendant at Fort Lewis to receive the assistance of  Ms. Yackel, but a Muslim Major at Fort Hood is now being denied that same requested assistance.  

Sadly, we  now begin see why Major Hasan will not receive fair pretrial processing and/or trial at Fort Hood.   MG Grimsley’s action today effectively sanctioned the denial of pretrial due process.

Army Delay Prejudices Hasan Defense Team

Over a week ago, the Hasan Defense Team requested the Commanding General at Fort Hood to reject the decision of a subordinate commander (Colonel Lamb) who had denied the Defense Request for a Mitigation Specialist.  Additionally, the Defense Team requested an opportunity to meet with the General concerning this important matter.  Given the fact that the US Army has signaled this case will be processed for potential capital referral, it is absolutely essential that the Defense be able to start developing mitigation evidence.   Sadly, action has not yet been taken on the Defense Request.  The delay is unwarranted and prejudicial. 

As noted in earlier Posts, the Army’s position is misplaced – it has no rational basis in fact or law.   Indeed, the Defense has provided the Commanding General with an affidavit prepared by Mr. Russell Stetler, National Mitigation Coordinator for the federal death penaltyprojects.  In his affidavit, Mr. Stetler states that “mitigation specialists come from a variety of backgrounds – including anthropology, education, journalism, law, psychology, and social work – but their work is defined by their unique role as agents of capital defense counsel.  Several outstanding mitigation specialists with national reputations in the field are also licensed to practice law, but when they are retained as mitigation specialists in an individual case they play that role and only that role in the case.”  Mr. Stetler has also emphasized the need for prompt action on this important matter.  In his words, “Obtaining the timely appointment of a mitigation specialist is essential to counsel’s efforts to provide Major Hasan with effective representation, and denying counsel these services risks committing an “error of constitutional magnitude” (citation omitted).  Providing Major Hasan with effective representation, including the tools essential to capital defense, not only enforces the promise of the Sixth Amendment, but assures the court that it may be confident in the reliability of its proceedings.”

Against this background, prejudice stemming from the US Army’s dilatory stance is readily apparent.  The US Army needs to act now and favorably for the Defense on this critical issue.     

A copy of the pertinent Request for Defense Mitigation Specialist is included on the Motions and Legal Memo Page.  The Defense Request presents a compelling argument because it is rooted in fairness and consistent with applicable law.

Injustice anywhere is a threat to justice everywhere.

Sunday, March 7, 2010

The Lawyer That Blogs…

Nidal Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood last November is currently being reprepresented by John Gallian. Some background information on Mr. Gallian…
-Retired Colonel from the U.S. Army
-Last Appointment within the Army: Chief Circuit Judge, 3rd Judicial Circuit, Fort Hood, Texas
Before a case goes to trial, lawyers from both the defense and prosecution have what is termed “discovery”. It is the procedure of each side releasing evidence to the other. This is the current stage of this case.
According to CNN.com the Army began releasing some of their evidence to the defense team, and Galligan alleges that the judge issued a gag order forbidding Galligan from inadvertently or purposfully “divuling, publishing or revealing, either by word or conduct,” information from the evidence. Mr. Galligan, being the lawyer he is, responded to the gag order by launcing a blog about the case. This is what I like to call a FAIL Moment.  On the blog, Galligan writes that “the U.S. Army is operating with a double set of standards” in Hasan’s case because, he said, there is no gag order for the Army prosecutors. While Mr. Galligan is not fully describing the evidence he is seeking, he is tredding in merky waters. He states the Army is not releasing evidence that is readily available (ummm, Mr. Galligan, Classified Documents are NEVER readily available… and it is Classified because it deals with a Shooting on a Military Base AND Mr. Hasan’s CONFIDENTIAL records… so yeah, expect it to take a while).
He proceeds to rant and rave about the Military and their “double-standards” in terms of this case… What Galligan does not realize is that it is not a case being tried by the U.S. Federal Government, but by the Military – hence, Military rules apply.
His blog, in my opinoin, only proves one point: Mr. Galligan “Attorney at Law” is not a professional. This may be his attempt to sky-rocket to fame via this case, but news-flash, no one is going to want a lawyer who is going to rant and rave on a blog about not getting his way. Do what you have to do, but always ALWAYS be professional about it. In addition, as an attorney if your response from a Judge issued gag order is to create a blog about your dislikes about the case and they way the other party is handling it – look in the mirror. No, Mr. Galligan is not breaking any laws… but a BLOG online is not the avenue an Attorney for an impending CRIMINAL proceeding should use to voice his opinoin. Be Smart. If you are not obtaining necessary documents in a “timely manner” (keep in mind that attorney’s aren’t REQUIRED to submit any evidence into discovery until RIGHT before trial)… FILE A MOTION… if that doesn’t work FILE ANOTHER… Do what you have to do to WIN.. If Mr. Galligan was a female, I would immediatley think she was PMSing when she decided to create that blog. That is completly irrational and does not lead closer to the goal – which is winning the trial.
Posted by Lilly at 6:13 PM

Are You or Have You Ever Been a Lawyer?

Editorial

In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within.

In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within.

These voices — often heard on Fox News — are going after Justice Department lawyers who represented Guantánamo detainees when they were in private practice. It is not nearly enough to say that these lawyers did nothing wrong. In fact, they upheld the highest standards of their profession and advanced the cause of democratic justice. The Justice Department is right to stand up to this ugly bullying.

Senator Charles Grassley, Republican of Iowa, has been pressing Attorney General Eric Holder Jr. since November to reveal the names of lawyers on his staff who have done legal work for Guantánamo detainees. The Justice Department said last month that there were nine political appointees who had represented the detainees in challenges to their confinement. The department said that they were following all of the relevant conflict-of-interest rules. It later confirmed their names when Fox News figured out who they were.

It did not take long for the lawyers to become a conservative target, branded the “Gitmo 9” by a group called Keep America Safe, run by Liz Cheney, daughter of former Vice President Dick Cheney, and William Kristol, a conservative activist (who wrote a Times Op-Ed column in 2008). The group released a video that asks, in sinister tones, “Whose values do they share?”

On Fox News, Ms. Cheney lashed out at lawyers who “voluntarily represented terrorists.” She said it was important to look at who these terrorists are, including Salim Ahmed Hamdan, who had served as Osama bin Laden’s driver. Let’s do that.

Mr. Hamdan was the subject of a legal battle that went all the way to the Supreme Court. Ms. Cheney conveniently omitted that the court ruled in favor of his claim that the military commissions system being used to try detainees like him was illegal. Republican senators then sponsored legislation to fix the tribunals. They did not do the job well, but the issue might never have arisen without the lawyers who argued on behalf of Mr. Hamdan, some of whom wore military uniforms.

In order to attack the government lawyers, Ms. Cheney and other critics have to twist the role of lawyers in the justice system. In representing Guantánamo detainees, they were in no way advocating for terrorism. They were ensuring that deeply disliked individuals were able to make their case in court, even ones charged with heinous acts — and that the Constitution was defended.

It is not the first time that the right has tried to distract Americans from the real issues surrounding detention policy by attacking lawyers. Charles Stimson, the deputy assistant secretary of defense for detainee affairs under George W. Bush, urged corporations not to do business with leading law firms that were defending Guantánamo detainees. He resigned soon after that.

If lawyers who take on controversial causes are demonized with impunity, it will be difficult for unpopular people to get legal representation — and constitutional rights that protect all Americans will be weakened. That is a high price to pay for scoring cheap political points.

David

David P. Hoose
Sasson, Turnbull & Hoose
100 Main Street, 3rd floor
Northampton, MA  01060
(413) 586-4800
(413) 582-6419 Fax
www.sthlaw.net

By Professor Alberto Bernabe – The John Marshall Law School

Friday, March 5, 2010

http://bernabepr.blogspot.com/2010/03/cnn-is-reporting-here-that-john.html

CNN is reporting here that John Galligan, the attorney for the Army psychiatrist implicated in a shooting at a Texas military base, has responded to a military gag order by starting a blog on the case. More here.

For his dedication to his role, Simple Justice praises Galligan stating that “Galligan’s representation of Hasan reflects the best of our profession. It’s not about his personal definition of justice, but about his duty to his client. . . . By creating [the] blawg, John Galligan made clear that his duty is to zealously represent his client, and that the villification of Hasan in the media requires some degree ot leveling the playing field, whether the Army agrees or not. John Galligan is unapologetic for being Nidal Hasan’s defense lawyer, and is clearly willing to face the consequences for doing his job well.”

I greatly admire attorneys who make a commitment to represent trully unpopular clients. It takes courage, determination and conviction. Go take a look at the blog and particularly at the comments that people are posting to get a sense of how difficult it can be to zealously stand up for the rights of the accused.

Attorney for Fort Hood suspect starts blog to state his case CNN.com

Attorney for Fort Hood suspect starts blog to state his case

By Larry Shaughnessy, CNN Pentagon Producer

 http://www.cnn.com/2010/CRIME/03/02/fort.hood.suspect.blog/index.html?iref=allsearch

The civilian attorney for Maj. Nidal Hasan has started a blog in response to a judge’s gag order.

STORY HIGHLIGHTS

  • Lawyer for Maj. Nidal Hasan responded to judge’s gag order by launching a blog
  • On blog, lawyer says that he is under a gag order, but Army prosecutors are not
  • Lawyer said Army won’t allow him to depose Fort Hood’s former base commander

Washington (CNN) — In response to a partial gag order, the attorney for the Fort Hood, Texas, shooting suspect has started a blog to make his case on the high-profile case.

The civilian attorney representing Maj. Nidal Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood last November, has been working for weeks to get evidence in the case in preparation for trial. The routine legal procedure used in most criminal cases is called discovery.

Continue reading Attorney for Fort Hood suspect starts blog to state his case CNN.com

MAJ Hasan’s Civilian Defense Counsel Establishes Blog…CAAflog.com

MAJ Hasan’s civilian defense counsel establishes blog

By Dwight Sullivan, March 2, 2010

Speaking of blogging about military matters, a friend o’ CAAFlog has sent us this link to a CNN report that John Galligan, MAJ Hasan’s civilian defense counsel, has set up a blog about the case here.  According to the CNN report, Mr. Galligan states that when he received discovery, “the military judge issued a gag order forbidding [him] from inadvertently or purposefully ‘divulging, publishing or revealing, either by word or conduct,’ information from the evidence.”  Mr. Galligan protests that there is “a double set of standards” because the trial counsel aren’t subject to a gag order.

Gag Me, Gag Me Not: Simple Justice…. A New York Criminal Defense Blog

Gag Me, Gag Me Not

Posted by SHG at 3/2/2010 1:48 PM
John P. Galligan, a former Colonel in the United States Army, has taken on the task of defending the Fort Hood Shooter, Maj. Nidal Hasan.  It’s a capital prosecution against a widely vilified defendant.  Who better than the former Chief Circuit Judge, 3rd Judicial Circuit, Fort Hood, Texas to stand beside the defendant. 

For the younger criminal defense lawyers out there, Galligan’s representation of Hasan reflects the best of our profession.  It’s not about his personal definition of justice, but about his duty to his client.  And this duty led him to a place where few would go: Galliigan has started a blawg, called Fort Hood Attorney, in the face of a gag order against him, and only him.  Galligan explains:

Finally responding to a request for disclosure of evidence that had been filed in early December, the US Army agreed to provide Defense Counsel with the type of evidence that is routinely made available in other cases.    The release of information, however, is subject a “gag order” issued by the Special Court-Martial Convening Authority, Colonel Morgan M. Lamb, which prohibits the Defense from inadvertently or purposefully  ”divulging, publishing, or relealing, either by word or conduct” the belatedly disclosed information.   Needless to say, Army prosecutors have had access to this same information for the past several months.  The belated disclosure to the Defense and the accompanying “gag order” is evidence that the pretrial discovery process is not being conducted on an even playing field.

It’s unlikely that many will feel particularly sympathetic to Hasan, and it’s unclear whether there is any reason why they should.  But that changes nothing for John Galligan.  He’s got a job to do, and he clearly means to do it. 

Continue reading Gag Me, Gag Me Not: Simple Justice…. A New York Criminal Defense Blog