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?