For months now, the Hasan Defense Team has been awaiting approval of its request for the approval and funding of a mitigation specialist. The US Army is now playing games with the notion that because the requested mitigation specialists are also attorneys, funding their appointment to the Defense Team would somehow run afoul of the prohibition on funding civilian counsel for a military defendant. Of course, Army officials have cited no case or regulation when this unreasonable interpretation has been upheld. Indeed, the US Army only several months ago approved the same mitigation specialist for a military capital defendant at Fort Lewis. it now seems that the Special Court-Martial Convening Authority is asking the prosecution to provide him with nominees for this important position on the defense team. This is totally absurd.
The role and significance of a mitigation specialist has been repeatedly recognized by both state and federal courts. The selection of the mitigation specialist devolves upon defense counsel, not special prosecutors who, as in the instant case, has been sent from Headquarters US Army to prosecute and secure the death penalty of Major Hasan. Army prosecutors and the Special Court-Martial Convening Authority need to reread the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003), reprinted in 31 Hosftra Law Review 913, 1022:
“Because the sentencer in a capital case must consider in mitigation anything in the life of a defendant which might militate against the appropriateness of the death penalty for that defendant, penalty phase preparation requires extensive and generally unparalleled investigation into personal and family history. At least in the case of the client, this begins with the moment of conception.”
The Hasan Defense Team continues to believe that it, not the prosecutors, are in the best position to determine a qualified and appropriate mitigation specialist. If the Hasan prosecutors want to assist the Defense, perhaps it could start by providing some of the important discovery which has been outstanding since early December 2009, e.g. FBI reports and the like. As the readers know, even United States Senators have been stymied in their efforts to secure this important information.