Hasan Denied Access to Electronic Koran Reader

For several weeks now, Major Hasan has been denied access to an electronic Koran reader, provided by the Defense Team, because Army commanders have not yet decided whether he will be permitted to have access to the device.   No explanation has been provided as to why it taking Army officials so long to decide this matter. 

Of course, this is just another example of the discriminatory and unreasonable conditions of pretrial confinement imposed in the Hasan case.   Major Hasan was earlier ordered not to use any Arabic during his daily prayers. 

However viewed, these restrictions on Major serve no valid governmental purpose.

Major General Grimsley Denies Defense Requests

     After we waited patiently for almost two weeks, MG William F. Grimsley, Acting Commander at Fort Hood, denied the Defense Request to meet with him in person to discuss several important issues:

–  First, the Defense Team had requested that MG Grimsley transmit the Hasan case to his level, pursuant to Rule for Court Martial 601(f).   In a terse memorandum denying the requested relief, MG Grimsley basically says that he intends to remain out of the case “unless and until this matter is forwarded” to him or other competent authority.  It is absurd to think that the Hasan case will end up on anybody’s desk other than a General Court-Martial Convening Authority.  The effort to keep everything at the Special Court-Martial Convening Authority level is nothing more than a prosecutor’s tactic to build an artificial  firewall around the Commanding General.   But let’s not forget that the Commanding General at Fort Hood, together with his Staff, have already immersed themselves in the Hasan case in numerous ways.  For example, they welcomed and briefed the President of the United States and the First Lady when the latter attended the Memorial Service; the CG and his Staff welcomed the DOD Task Force that was sent to Fort Hood to conduct the 45-day review (see the attached Protecting the Force Report); the CG has already authorized numerous construction contracts to prepare for an Article 32 hearing and eventual trial; the CG has directed a post-wide survey to identify personnel impacted by the events of 5 November; and the CG’s Staff has coordinated the presence and funding of trial counsel (prosecutors) from distant posts.  They have even coordinated the presence of an active duty military judge to serve as the Article 32 investigating officer.   It is simply disingenuous to suggest that the Hasan case is anything other than a case on the fast track for General Court-Martial disposition. 

–  MG Grimsley’s refusal to reverse Colonel Lamb’s decision and to grant the Defense its requested mitigation specialist is particularly disturbing.  Colonel Lamb has already directed the Article 32 investigating officer to determine the presence of  any “aggravating factors specified under RCM 1004”  Simple fairness would seemingly demand that the investigating officer also be directed to consider the presence of “mitigating factor.”  But no, it appears that only a one-sided investigation will be directed.

– As noted in other posts, the Hasan Defense requested the appointment of Ms. Juliet Yackel as its mitigation specialist.  No adequate explanation has been provided for the denial.  It should not be forgotten that Ms. Yackel was approved by the Commanding General at Fort Lewis, Washington, to serve as the Defense mitigation specialist in an ongoing capital murder court-martial (United States v. Davila).   Why should the Hasan Defense Team be treated differently?  Should not the Army be expected to speak with one-voice when addressing the identical issue at Fort Hood and Fort Lewis?  Apparently not – it seems to be wholly legitimate for a female military defendant at Fort Lewis to receive the assistance of  Ms. Yackel, but a Muslim Major at Fort Hood is now being denied that same requested assistance.  

Sadly, we  now begin see why Major Hasan will not receive fair pretrial processing and/or trial at Fort Hood.   MG Grimsley’s action today effectively sanctioned the denial of pretrial due process.

Army Delay Prejudices Hasan Defense Team

Over a week ago, the Hasan Defense Team requested the Commanding General at Fort Hood to reject the decision of a subordinate commander (Colonel Lamb) who had denied the Defense Request for a Mitigation Specialist.  Additionally, the Defense Team requested an opportunity to meet with the General concerning this important matter.  Given the fact that the US Army has signaled this case will be processed for potential capital referral, it is absolutely essential that the Defense be able to start developing mitigation evidence.   Sadly, action has not yet been taken on the Defense Request.  The delay is unwarranted and prejudicial. 

As noted in earlier Posts, the Army’s position is misplaced – it has no rational basis in fact or law.   Indeed, the Defense has provided the Commanding General with an affidavit prepared by Mr. Russell Stetler, National Mitigation Coordinator for the federal death penaltyprojects.  In his affidavit, Mr. Stetler states that “mitigation specialists come from a variety of backgrounds – including anthropology, education, journalism, law, psychology, and social work – but their work is defined by their unique role as agents of capital defense counsel.  Several outstanding mitigation specialists with national reputations in the field are also licensed to practice law, but when they are retained as mitigation specialists in an individual case they play that role and only that role in the case.”  Mr. Stetler has also emphasized the need for prompt action on this important matter.  In his words, “Obtaining the timely appointment of a mitigation specialist is essential to counsel’s efforts to provide Major Hasan with effective representation, and denying counsel these services risks committing an “error of constitutional magnitude” (citation omitted).  Providing Major Hasan with effective representation, including the tools essential to capital defense, not only enforces the promise of the Sixth Amendment, but assures the court that it may be confident in the reliability of its proceedings.”

Against this background, prejudice stemming from the US Army’s dilatory stance is readily apparent.  The US Army needs to act now and favorably for the Defense on this critical issue.     

A copy of the pertinent Request for Defense Mitigation Specialist is included on the Motions and Legal Memo Page.  The Defense Request presents a compelling argument because it is rooted in fairness and consistent with applicable law.

Why Has The Army Delayed Release of Classified Information???

  • Months ago, the Hasan Defense Team requested release of the classified report stemming from the White House-directed intelligence review and the classified portion of the DOD-directed 45-day investigation at Fort Hood. 
  • To date, neither of the important documents have been provided to the Defense!  Why?  What are they hiding?

Are They Afraid of What He Might Say? US Army Won’t Let the Hasan Defense Team Question General Cone!

Let’s not forget, Lieutenant General Cone was the Commanding General of III Corps and Fort Hood on 5 November 2009.  Shortly after the tragic shooting incident, LTG Cone met and participated with the Commander-in-Chief Barak Hussein Obama in the memorial service at Fort Hood.  Both LTG Cone and President Barack Hussein Obama addressed the attendees.  Subsequently, LTG Cone directed a Survey of all personnel – civilian and military – at Fort Hood, attempting to determine if and/or how the events of 5 November may have affected them.  

Against this background, it is incredulous that Colonel Morgan M. Lamb, a mid-level commander in the chain of command could determine, as he did on 26 February 10, that there was “no probable relevance or necessity of LTG Cone’s testimony.”   Query – did Colonel Lamb attend the memorial service himself?  What communications, if any, has he had with the Commanding General concerning this case? 

This matter highlights the difficulty presented when low-level commanders are asked to make decisions that could significantly impact on their  superior officers.  Clearly, military authorities superior in rank to LTG Cone need to weigh in and reverse this senseless decision.

US Army Denies Hasan Defense Request for A Mitigation Specialist

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?

US Army Places “Gag Order” on Hasan Defense

      Finally responding to a request for disclosure of evidence that had been filed in early December, the US Army agreed to provide Defense Counsel with the type of evidence that is routinely made available in other cases.    The release of information, however, is subject a “gag order” issued by the Special Court-Martial Convening Authority, Colonel Morgan M. Lamb, which prohibits the Defense from inadvertently or purposefully  “divulging, publishing, or relealing, either by word or conduct” the belatedly disclosed information.   Needless to say, Army prosecutors have had access to this same information for the past several months.  The belated disclosure to the Defense and the accompanying “gag order” is evidence that the pretrial discovery process is not being conducted on an even playing field.