For the past several months, the Hasan Defense Team has actively solicited the appointment and government funding for a mitigation specialist. Every step of the way, US Army prosecutors have resisted our efforts. Because all of the Defense nominees just happened to be licensed attorneys, Army prosecutors argued that we were trying to backdoor the retention of additional civilian counsel. Of course, that argument is ridiculous and overlooks the fact that many experts who also happen to be attorneys are routinely appointed as experts in military courts-martial. Moreover, they have served as expert witnesses for both the defense and the prosecution. And, more significantly, the position of Army prosecutors in the Hasan case is totally at odds with the fact that one of the defense nominees is now serving as a mitigation specialist in an ongoing court-martial at Fort Lewis (United States v. Davila). Apparently, the US Army does not speak or act with one voice on this important issue.
Anyway, after months of wrangling, the Special Court-martial Convening Authority (SPCMCA), Colonel Morgan M. Lamb, has now finally approved the Hasan Defense request for appointment and funding of its mitigation specialist. Sadly, the inexcusable delay in processing this important and rather straightforward matter has signficantly impacted on the ability of the Defense to prepare for the upcoming Article 32 investigation or any future trial.
Although the Hasan Defense Team now has a mitigation specialist on board, it should be noted that US Army prosecutors at Fort Hood – or at least the special prosecutors sent at the direction of Headquarters, Department of the Army – continue to advance the ridiculous argument that a mitigation specialist is being appointed only out of “an abundance of caution.” Incredibly, these experienced prosecutors still advance the inane argument that the Hasan Defense is not “entitled to a mitigation specialist in this case at this time.” Not surprisingly, they cite no case-law to support that absurd position.
As noted previously, the approval of a defense mitigation specialist did not come without restrictions and sanctions. Indeed, the SPCMCA continues to adopt the unreasonable position of his prosecutor-legal advisors, by placing the following restrictions on the Defense mitigation specialist:
– the Defense mitigation specialist must provide Colonel Lam with proof that “any license he has to practice law is inactive.”
– any reactivation of the defense mitigation specialist’s law license “during the period of his employment in this case may result at the time of reactivation in no further government payment…..”
These onerous restrictions associated with the appointment of the Defense mitigation specialist will be grist for argument and eventual litigation. Sadly, it just highlights how difficult it has been for the Hasan Defense Team to secure fair pretrial procedural due process.