Court-Martial Military Defense Under UCMJ
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.