It does not take a trained eye to recognize that the US Army is aggressively pursuing a capital (death penalty) case against Major Nidal Hasan. For beginners, they have assembled a select group of military attorneys, the bulk of whom are from distant posts or from US Army Headquarters, to spearhead the prosecution - in fact, that is now their only mission.
High-dollar contracts have been issued to remodel the courthouse at Fort Hood which reportedly is where the Article 32 investigation will be held. Upon information and belief, the Army has budgeted millions of dollars to conduct this trial and to secure a death penalty sentence.
The Army has even taken the unusual step of directing an active duty military judge to act as the Article 32 pretrial investigation officer and specifically tasked him to consider the aggravating factors that are a necessary predicate for any capital referral in the case.
Against this background, it is hard to believe that even though the Hasan Defense Team requested a specific mitigation specialist in mid-December, the US Army refused to act on the request until today when Colonel Morgan M. Lamb issued a formal denial. Colonel Lamb claims that the defense requested mitigation specialist cannot be approved because the mitigation specialist also happens to be an attorney. Obviously, Colonel Lamb was not properly advised that this same mitigation specialist has also been requested and approved in another Army capital murder case now pending at Fort Lewis, Washington. In short, the US Army is operating with a double set of standards.
The Hasan Defense Team will seek appropriate reconsideration and appeal of this very troubling development. The law clearly supports the Defense position.
As noted previously, Colonel Lamb has already directed that the Article 32 investigating officer examine whether any of the aggracating factors outlined in RCM 1004(c) are present and if they might warrant a capital referral. Due to this possibility, the Hasan Defense Team took immediate steps to request a qualified mitigation specialist to assist in preparation for the Article 32 hearing. Prior to employment of an expert, the Defense must show that an expert is necessary and that denial of said expert would result in a fundamentally unfair trial. US v. Robinson, 39 MJ 88 (CMA 1994). The Court of Appeals for the Armed Forces, in US v. Gonzalez, 39 MJ 459 (CMA 1994), articulated a three-part test in determining whether government funded expert assistance is necessary: First, why the expert assistance is needed? Second, what would the expert assistance accomplish for the accused? Third, why is the defense counsel unable to gather and present the evidence that the expert assistance would be able to develop?
However viewed, the Defense request for a mitigation specialist satisfies the Gonzalez factors mentioned above. The Hasan case presents the possibility of a capital referral, an action that can only follow the Article 32 hearing. Thus, the Defense has every right to fully explore any potential aggravating, mitigating or extenuating factors that may influence a capital referral and prosecution following the Article 32 investigation. See Rule for Court-Martial 405(e). A mitigation specialist is uniquely situated to assist the Defense with this important effort. The military and federal courts have highly encouraged the approval of mitigation consultants in capital cases. See e.g. United States v. Kreutzer, 59 MJ 771 (ACCA 2004) and Wiggins v. Smith, 539 US 510 (2003). A military accused has, as a matter of Equal Protection and Due Process, the right to expert assistance when necessary to present an adequate defense. The failure to provide this important requested assistance is certain to be an appellate issue. As the Court stated in Kreutzer, “Appellant’s trial can be summed up in one sentence: three defense counsel who lacked the ability and experience to defend this case case were further hamptered by the military judge’s erroneous decision to deny them necessary expert assistance, thereby rendering the contested findings and the sentence unreliable.” 59 MJ 773, 786. Colonel Lamb needs to read this case and then follow its clear mandate.
Against this background, it is abundantly clear that, in denying the defense request for a mitigation specialist, the US Army at Fort Hood has effectively decided that Major Hasan’s case is to be processed under a different set of rules than those at Fort Lewis! What is the rationale for such disparate treatment? One can’t help but wonder – is it because is Muslim?
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QUOTE – “Appellant’s trial can be summed up in one sentence: three defense counsel who lacked the ability and experience to defend this case case were further hamptered by the military judge’s erroneous decision to deny them necessary expert assistance, thereby rendering the contested findings and the sentence unreliable.”
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Sounds like the ruling was overturned because the defense counsel were incompetent and didn’t ask for help…
QUOTE – “Third, why is the defense counsel unable to gather and present the evidence that the expert assistance would be able to develop?”
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Also lends one to believe that a mitigation specialist should only be required if you are not competent to to the job yourself.
Perhaps by denying a specialist they are paying you the complement of having determined that you are in fact competent enough to perform this function.
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That is a very good response. You rock John.
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How would I go about volunteering to serve on this firing squad?
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Two lawyers for the defendant in a capital case has been required by federal law since the Judiciary Act of 1789. This law is now codified at 18 U.S.C. 3005. I realize that this statute is not applicable to a military case, but it demonstrates that Atty Galligan’s request is entirely reasonable, and reflect a historic American tradition. A mitigation specialist, who may or may not be an attorney, is appointed in every civilian criminal case of similar seriousness. I hope the convening authority will reconsider.
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The request was most likely denied in order to expedite the case. Before you go getting emotionally tied into all this, You must keep in mind that this a military matter in it’s entirety. The victims were not “innocents”, they were combatants. They were engaged by one of their own during a time of war. That seriously skews the “justice system” as most people understand it.
Personally I would hate to have the defense teams job, but I have to respect the men doing it. Engaging combatants on your own side during war smacks of treason, and he actually could probably legally be put in front of a firing squad, or hanged…
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I read, at one time, that the defendant suffered serious harassment at the hand of his fellow soldiers. Is this the “mitigating circumstances” that they are talking about?
I would like to know what charges were filed against these individuals and what sentences they are receiving.
I’ll be the first to admit that I don’t know all the facts to this case but that is one question that I’ve wondered about since day one. I’m not too surprised that there isn’t a lot of news on that subject.
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I do not understand why the government is choosing to do things that will result in needless litigation and call into question the fairness of this trial.
Granting reasonable defense requests like this one will speed the trial along and will ensure that Hasan gets a fair trial, which should be what we all want.
- James M. Branum
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The simple fact is that the Government is acting in an unreasonable and discriminatory manner. The Defense requests being made in the Hasan case are similar to those made in virtually all other courts-martial. Bottom Line – Major Hasan is being treated differently. One can’t help but ask- Why?
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The Defense will continue to insist that Major Hasan’s Constitutional rights be protected.
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What about the God Damn civil rights to those he MURDERED?? Let’s not forget their right to exist and not be gunned down by a terrorist in officers clothing. I agree the best thing for the coward Nidal “Hussain” is to hang himself with his jail house issue bed linens. You intentionally mispell the Presidents name, I ask; are you a racist? Are you not happy that a black man is in the White house? You spoke earlier in the blog as though you are angered that President Obama is somehow blocking your access to crucial documents. So I ask again, Are you a racist? Did you work in the JAG field? I see now your clinging to the fact that as a civilian you can say what you want and pronounce the President’s name anyway you want. Reguardless if you like him or not he is our President. The vast majority of the country put him in office so that racist punks like yourself could be stopped from ruining this country. Your client deserves his day in court. Let’s hope you don’t intentionally waist tax payers money by dragging this out for years seeing how the tax payers are now paying your legal fees to represent him. Because of your comments I have nothing but the sincerest hatred for you and I hope someday you are caught in the same actions inwhich your client inflicted apon others. You need to be disbarred. You are a racist even if you won’t admit it. P.S. Stop calling him Maj, He is certianly no officer in this Countries Army.
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Corey,
It saddens me that you are a member of the US Army but don’t believe in the constitution and go as far as to wish death upon those who stand up to defend people under the constitution.
I am disgusted and angered by the actions that MAJ Hassan is alleged to have done. But I want him to get his day in court. If he is proven to be guilty, then I hope he gets life in prison. But I want him to get a fair trial. If we don’t give this, we have failed as a nation.
And speaking of the victims, they deserve this fair trial too. The only way their loved ones will know what happened that day will be if the trial is done right. If as you wish, Hassan did kill himself in jail, we will never know the truth.
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Alleged???? There is no disputing what he has done… I dispise you for saying that somehow as a nation we are responsible for this individual. He went in and killed innocent, unarmed soldiers. That is fact. He did it with such malice and disreguard for anyone safty. This is as well a fact. He was hoping to be killed for his actions so that in the muslim world he would be martered. You say your saddened? You disgust me. You claim that somehow if he does not get an impartial trial that somehow we aas a nation failed? You are dead wrong. I pay my taxes. I raise my children properly. I have not failed this nation, lawyers like you have. It is lawyers like you that protect the criminals and not the victims. I do not nessesarly wish your death, I wish that you could someday feel the pain and hatred these family mambers had to feel because our military failed to protect the victims. Our military chose to employ this deranged terrorist. I blame you for making the country out to be the bad guys here. Your saddened that a soldier would feel the way I do??? You have no idea what I really feel. I did not spend my career figureing out how to kill my fellow soldiers and friends. I served with honor. How did your client serve???
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P.S. Either your illiterate or you just seem to enjoy mispelling peoples names. My first name has no (e). I really think you designed this blog to further facilitate hostilities surrounding this terrorist. So when he gets sentenced to death you can claim this as evidance that he did not have an inpartial jury or a fair trial.
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Cory, this isn’t my website. I do happen to be an attorney but I am in no way involved with the Hasan defense.
Also your remark, “I have not failed this nation, lawyers like you have. It is lawyers like you that protect the criminals and not the victims” is utter rubbish. The role of the attorney is part of our constitutional system of government.
The US Constitution’s Sixth Amendment says:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”
Read that last line again. The Founding Fathers believed it was critical that all accused people have the right to have “the assistance of counsel.”
Do you? Or do you think the Founding Fathers were wrong to put this in our Bill of Rights?
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Richard Saunders: such a response has nothing to do with the post. Move on.
Sir, I see what you are arguing, but I am under the impression you are not a military attorney, but a civilian one. If you’ve taken this case pro bono, why not assign a mitigation specialist from your own firm, or hire one, to assist you if the government will not make one available? That’s hardly an uncommon practice.
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Cory Steffen, Mr. Branum is correct. If you are not willing to defend every aspect of the Constitution, even those that sometimes work against what you want, then you should leave the military. The Oath does not ask us to pick and choose what parts of the Constitution to defend, but all of it.
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“Bottom Line – Major Hasan is being treated differently. One can’t help but ask- Why?”
Sir,
Would you clarify in what ways? I agree that this case, due to its emotionally charge nature, seems heavily stacked against the defense. But, given the gag order in place, can you elaborate on that?
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