Fort Hood Attorney Post

Why all the fuss, some have asked, about Major Hasan’s medical treatment while in the Jail Infirmary? 

It goes without saying, an inmate has a right to whatever care is necessary to treat serious disabilities.  See., e.g., Frost v. Agnos, 152F.3d 1124 (9th Cir. 1998)(holding that a pretrial detainee who wore a leg brace and relied on crutches was entitled to accessible shower facilities); Davis v. Hall, 992 F. 2d 151 (8th Cir. 1993)(inmate sent to facility not equipped to accommodate disability); Hicks v. Frey, 992 F. 2d 1450 (6th Cir. 1993)(paraplegic kept in room, denying mobility and without proper facilities); Mackline v. Freake, 650 F.2d 885 (7th Cir. 1981)(paraplegic given no physical therapy); Leach v. Shelby County Sheriff, 891 F.2d 130 (8th Cir. 1993)(paraplegic inmate given inadequate mattress and no assistance in cleaning himself); Candelaria v. Coughlin, 787 F. Supp. 368, 378 (S.D. N.Y. 1992)(paraplegic had need for “adequate wheelchair and for orthopedic treatment [and]  . . . liquid dietary supplement”).   See also U.S. Dept of Justice, Federal Standards for Prisons and Jail sec 5.27 (1980); ABA Standards for Justice sec 23.5-1 (commentary)(1986); American Correctional Assn. Standards for Adult Correctional Institutions, Standard 3-4358 (1990); National Commission on Correctional Health Care, Standards for Health Services in Jail J-57 (May 1999); Commission of Accreditation for Corrections, Certification Standards for Health Care Programs (HC-077 (1989).  Failure to provide handicapped-accessible facilities can also result in liability.  LaFaut v. Smith, 934 F.2d 389 (4th Cir. 1987)(Justice Powell); Weeks v. Chaboudy, 984 F.2d 185, 187 (6th Cir. 1993); Hicks v. Frey, supra ( officer in charge of jail liable because he received daily reports of conditions).  It is clear that, in an appropriate case, discrimination against disable inmates could violate the Equal Protection Clause of the Fourteenth Amendment.  See also Rainey v. County of Delaware, 18 Nat’l Disability Law Rep. para 208, 2000 WL 1056456 (E.D. Pa. 2000)county and corporate owner of the prison could not assert an Eleventh Amendment or qualified immunity defense because it is well-settled that a paraplegic confined to a wheelchair has a serious medical condition that warrants recognition under the Eighth Amendment).  The Americans With Disabilities Act (ADA) prohibits discrimination against disabled people and does apply, in appropriate cases, to inmates.  Additionally, The Rehabilitation Act also prohibits discrimination against disable people in a federally funded “program or activity.”  The Rehabilitation Act has been held to apply to prisons and, in 1998, the Supreme Court unanimously held that the ADA also applies to state prisons.  See Pennsylvania Department of Correction v. Yeskey, 524 U.S. 206 (1998).

Need we say anything more?

The soon to be released AR 15-6 investigation will hopefully document how the US Army responded to Major Hasan’s reports of suspected war crimes.   

What should a person do when they either hear about or observe suspected war crimes?   All of us probably will react differently – indeed, some might not even react at all.   Is is, however, a very perplexing issue that has profound legal and moral dimensions.  It undoubtedly will have a significant impact on an individual’s state of mind. 

For example, what is your reaction upon seeing the following recently disclosed combat footage - http://www.collateralmurder.com/  ?  Should persons knowledgable about it have reported the matter to superior military authorities?  Should it have been investigated by military legal authorities?  If it was not earlier investigated, should it be investigated now?

After initial complaints were raised with Jail officials concerning the very troubling appearance of a bedsore very shortly after Major Hasan was moved from an Army hospital to the Bell County Jail, the Army dispatched a physician to the jail.  A photo of the sore was taken and presumably a report was made – but the doctor has not returned to the Jail.   So much for continuity of care.  And, although the unit commander made a perfunctory visit, he too has not been seen nor heard from. 

In addition to the bedsore, the Defense has repeatedly complained that Major Hasan is suffering from chills.  Efforts to get the temperatature increased in his jail infirmary room (as was done at BAMC) or to permit a space heater, as well as to secure another blanket – well, these efforts have thus far been unsuccessful. 

The health concerns are well-placed.  Spinal cord injury patients often have difficulty maintaining a stable core body temperature. They tend to take on the room temperature; if it is hot, they are hot, and conversely if it is cold, they will be cold. Patients commonly arrive at the acute care setting with hypothermia or hyperthermia, and must be managed by someone skilled in the rehabilitation of acute spinal cord injury.  The chills Major Hasan is experiencing may very well also reflect other internal medical problems.  It is sad that the US Army has seen fit to spend hundreds of thousands of dollars for a round-the-clock guard to watch over an inmate who is virtually immobile, but seems to dismiss his valid health-related complaints.

There should  be no doubt as to why Army prosecutors have resisted or refused to disclosure important evidence in the Hasan case.  The Washington Post recently reported that, in an April 12 letter, lawyers for the Justice and Defense departments said some of the requested materials could compromise Hasan’s prosecution.   Both Senators Lieberman and Collins have correctly stated that position is total nonsense. 

Shortly we will request government lawyers to provide the Hasan Defense with a copy of the referenced letter.   We are willing to bet that prosecutors will similarly stall on dislosing even this letter of so-called explanation for nondislosure of relevant evidence.

A forgotten story in the Hasan case is that the current senior legal advisor (LTC Febbo) at Fort Hood, Texas, already has acknowledged that he cannot participate in any legal advice associated with this controversial case.  Of course, that leaves open the question about how any of his subordinates can be expected to be impartial against this backdrop.  Fairness, however, does not seem to have been a controlling purpose in the investigation and/or prosecution in this case. 

It is expected that the US Army will release the AR 15-6 investigation associated with the Febbo-Hasan connection.   Like much of the other requested discovery in this case, the disclosure of this important information comes far too late in the pretrial process.  As readers know, the Defense still has not been in receipt of associated FBI reports. 

For an earlier national news media report about the Feebo connection, see the following:  Febbo and Hasan’s Mindset

“I regret to say our efforts to obtain this information necessary to conduct a thorough investigation of this homeland terrorist act have been met much foot dragging, very limited assistance, and changing reasons why the administration cannot provide us with the information that we have requested”                                                                      Senator Joe Lieberman

He added, “The response of the executive branch … has been inadequate and unreasonable.” 

Senator Collins, who also joined Lieberman at the recent news conference, accused the administration of “spoon feeding us selected facts rather than giving us information to the data and individuals that we need.”

“The president said that he not only welcomed a congressional investigation; he said that Congress should investigate. And we took him at is word,” Collins said. “The administration has prevented us … from gaining access to the information that we need to effectively carry out our constitutional role.”

Collins said it was “most disturbing” the information her committee seeks has been given to three groups that have been conducting investigations on the administration’s behalf.

Sounds like the same complaint the Hasan Defense Team has been making over the past several months.