Deadline for Discovery – What Will The Army Provide?

Today is the deadline, imposed by the Article 32 Investigating Officer, for Army prosecutors to respond to long outstanding Hasan Defense Team discovery requests.  As of this posting – after COB at Fort Hood, Texas – no formal response from the prosecutors has been received.  And, as readers are aware, the initial Article 32 session is scheduled for just several days hence.

DOD & DOJ Now Border on Contempt

The standoff between US Senators Joseph Lieberman and Susan Collins has been addressed in many earlier postings.  Like the Hasan Defense Team, these Senators have been stymied at every turn when they requested material evidence pertinent to this case.  Although subpoenas were issued, both DOD and DOJ have thumbed their nose to these wholly legitimate Senatorial demands.  It should come as no surprise – senior Administration officials care about nothing except to promptly prosecute and secure a death penalty sentence in the court-martial of Major Hasan.  Readers are encouraged to review the full letter, together with all enclosures, that was sent – just yesterday – to Secretary Gates and Attorney General Holder.  It is a damning indictment about the process and it validates the frustration that has been expressed on this blog for several months.  Some highlights of the Lieberman-Collins letter follow:

  1. Senate subpoenas were issued after five months of unsuccessful efforts to obtain the Administration’s cooperation to secure the requested documents and interviews.
  2. More than one month after the Senate subpoenas were issued, DOD and DOJ have “failed to produce to the Committee all the responsive materials sought in the subpoenas or to assert any legal basis for withholding the materials.”
  3. That DOD and DOJ had filed to explain their “defiance of the subpoenas” or to offer “any supportable legal ground” for their refusal to produce the materials identified in the subpoenas.
  4. That DOD and DOJ had not property asserted executive privilege in this case inasmuch that “executive privilege may be formally involved to prevent disclosures to Congress only by the President personally.”
  5. The Departments have  offered “weak and unsupported explanations for why they would prefer not to provide the Senate Committee with the requested documents.
  6. neither Department have offered any “principled reason why DOD’s internal review was permitted to examine the transcripts and summaries of prosecutorial interviews by Confress is blocked from doing so.”

Senators Lieberman and Collins have fprmallywarned both Secretary Gates and Attorney General Holder that unless they respectfully “come into full compliance with [their] legal duties under the subpoenas by June 2, 2010 at 10a.m., the Senators will convene the Committee on the earliest date practicable to consider measures for enforcing the subpoenas, including holding [them] in contempt of Congress.

Against this background, nobody should question Defense assertions that Major Hasan is being denied pretrial procedural due process.

For a complete copy of the Senators’ letter to Gates and Holder, click here.  Hasan – 5.24.10 Letter to Gates and Holder

Senators Lieberman and Collins – Like the Hasan Defense Team – Continue To Be Denied Access to Relevant Evidence

Senators Lieberman and Collins are basically fed up with DOD stalling tactics in disclosing relevant associated with this case.  No surprise, the Hasan Defense Team has been experiencing this same kind of stonewalling since Day One.  Thank goodness these senior Senators have taken formal objection to the arrogance of these Army prosecutors and senior Administration officials. 

A complete copy of the Senators’ formal written respose to the contemptible position taken by DOD and DOJ on this important issue will be posted shortly.

Army Is Unresponsive to Harsh Pretrial Conditions

Over the past several weeks, the Hasan Defense Team has voiced repeated complaints to the Administrative Staff at the Bell County Jail, as well as to US Army officials.  The principal complaint is that Major Hasan, a paraplegic, is experiencing continuance chills.  His repeated complaints have basically been ignored.   During many visits with counsel, he shivers nonstop. 

The Defense made several requests to address the problem.  It was requested that the air conditioner vents in his cells be sealed shut – that request was disapproved.   A portable space heater was requested for his cell – that request also was denied.  And finally, it was requested that Major Hasan be permitted to wear a sweater and a knitted cap.   Although Jail officials finally relented and permitted the cap, they have prohibited Major Hasan from using a sweater or insulated underwear.  Their rationale – Major Hasan is to be treated like every other prisoner.  Of course, their argument overlooks the fact that US Army officials, when placing Major Hasan in pretrial confinement, noted that his circumstances were unique and would require individualized treatment.  For that reason, US Army officials have paid Bell County over $200,000 for a six-month term.  The great bulk of the contract fee is literally wasted on a unncessary round-the-clock guard inside the jail.  Bell County is not responsible for any guard services when Major Hasan is transported outside the jail facility for pretrial hearings, meeting with Defense Counsel, etc.   As noted in earlier posts, ambient temperatures can present serious medical problems for paralyzed individuals like Major Hasan.  The refusal of Army and Jail officials to provide Major Hasan with a sweater or other appropriate clothing constitutes intentional pretrial maltreatment, a direct violation of Article 13, UCMJ.

Another Slap At Due Process – Army Denies Defense Request for Reconsideration of Continued Pretrial Confinement

Notwithstanding Major Hasan’s move from a medical ward at Brook Army Medical Center to the infimary unit at Bell County Jail -where the differences in available medical care is as stark as night and day, Army officials recently denied the Defense Request to Reconsider Continued Pretrial Confinement.

Hasan Defense Finally Gets A Mitigation Specialist – But Not Without Penalty & Restrictions

For the past several months, the Hasan Defense Team has actively solicited the appointment and government funding for a mitigation specialist.  Every step of the way, US Army prosecutors have resisted our efforts.   Because all of the Defense nominees just happened to be licensed attorneys, Army prosecutors argued that we were trying to backdoor the retention of additional civilian counsel.  Of course, that argument is ridiculous and overlooks the fact that many experts who also happen to be attorneys are routinely appointed as experts in military courts-martial.  Moreover, they have served as expert witnesses for both the defense and the prosecution.  And, more significantly, the position of Army prosecutors in the Hasan case is totally at odds with the fact that one of the defense nominees is now serving as a mitigation specialist in an ongoing court-martial at Fort Lewis (United States v. Davila).   Apparently, the US Army does not speak or act with one voice on this important issue. 

Anyway, after months of wrangling, the Special Court-martial Convening Authority (SPCMCA), Colonel Morgan M. Lamb,  has now finally approved the Hasan Defense request for appointment and funding of its mitigation specialist.   Sadly, the inexcusable delay in processing this important and rather straightforward matter has signficantly impacted on the ability of the Defense to prepare for the upcoming Article 32 investigation or any future trial. 

Although the Hasan Defense Team now has a mitigation specialist on board, it should be noted that US Army prosecutors at Fort Hood – or at least the special prosecutors sent at the direction of Headquarters, Department of the Army – continue to advance the ridiculous argument that a mitigation specialist is being appointed only out of “an abundance of caution.”  Incredibly, these experienced prosecutors still advance the inane argument that the Hasan Defense is not “entitled to a mitigation specialist in this case at this time.”   Not surprisingly, they cite no case-law to support that absurd position. 

 As noted previously, the approval of a defense mitigation specialist did not come without restrictions and sanctions.   Indeed, the SPCMCA continues to adopt the unreasonable position of his prosecutor-legal advisors, by placing the following restrictions on the Defense mitigation specialist:

–  the Defense mitigation specialist must provide Colonel Lam with proof that “any license he has to practice law is inactive.”

– any reactivation of the defense mitigation specialist’s law license “during the period of his employment in this case may result at the time of reactivation in no further government payment…..”

These onerous restrictions associated with the appointment of the Defense mitigation specialist will be grist for argument and eventual litigation.  Sadly, it just highlights how difficult it has been for the Hasan Defense Team to secure fair pretrial procedural due process.