As reported in earlier posts, the Special Court-Martial Convening Authority (Colonel Lamb) has denied the defense request to employ, at government expense, the services of Ms. Juliet Yackel as a mitigation specialist. Colonel Lamb has been informed that Ms. Yackel is extremely well-qualified to perform this vital role in the Hasan case. Nevertheless, Colonel Lamb has twice now rejected the Defense request based on the legal advice of the prosecutor, Colonel Michael Mulligan. Mulligan argues that because Ms. Yackel is also a licensed attorney, to employ her as a mitigation specialist is tantamount to hiring her as an attorney. Colonel Mulligan’s position is not supported by case law, regulation, or even common sense. Actually, it flies in the face of the fact that Ms. Yackel was approved recently by the Lieutenant General at Fort Lewis to serve in this same capacity for the Defense in an ongoing capital murder court-martial, United States v. Davila. The Hasan defense believes that, in deciding this issue, the Fort Lewis 3-star general (advised by a Staff Judge Advocate) got it right and that the Fort Hood Colonel (advised by prosecutor Mulligan) got it wrong. It is patently unfair that these military defendants should be treated so differently – why else call it a Uniform Code of Military Justice? Colonel Lamb has, by accepting the lead prosecutor’s advice, impermissibly interfered with the composition of the Defense Team and built error into the case. See e.g. United States v. Kreutzer, 61 M.J. 293, 295 (CAAF 2005)(erroneous denial of mitigation specialist was “error of constitutional magnitude.”).
In an attempt to resolve this important issue so that the Defense can begin to properly prepare its case, the question of Ms. Yackel’s eligibility has been presented to the Office of General Counsel, Department of Army, for appropriate staffing and resolution. The Defendants in the Hasan and Davila courts-martial should be treated fairly and uniformly. Although Colonel Mulligan may be the legal advisor and mouthpiece for Colonel Lamb, he certainly does not speak for the Department of Army – as he now purports to do. The Hasan defense has heard enough about Colonel Mulligan’s personal view of the issue – we now anxiously await word from a much higher source, i.e. the Department of the Army.