Here’s an interesting perspective from uber-litigator (and military justice practitioner extraordinaire) Jack Zimmermann raising unlawful command influence concerns resulting from President Obama’s public remarks about the Fort Hood shootings.

18 Responses to “Major Hasan, President Obama and UCI?”

  1. Dew_Process says:

    As usual, Jack’s correct – in principle. At a minimum, it’s good for a LOT of motion practice. For those of you old enough to remember, when LT Calley was tried, it became a 4 month long circus, based upon all of the pretrial publicity, “commentary” by Nixon and just about everyone else in DoD.

    Talk about “tainting” the pool of potential members!

  2. Phil Cave says:

    I think more important for the taint issues are all of the extra-judicial statements from people who have been told not to discuss the case, but who do; and statements of the various investigators.
    Sen x, now wants to hold Senate hearings on the case.

  3. Anonymous says:

    Let the state of Texas try him and fry him.

  4. Some Army Guy says:

    I had some of the same thoughts when Abu Ghraib broke.

  5. CPT Rob M says:

    “The defense asserts, and the Government concedes, that the pretrial publicity was massive. The defense perceives the publicity as virtulent and vicious. At trial, it submitted a vast array of newspaper stories, copies of national news magazines, transcripts of television interviews, and editorial comment.Counsel also referred to comments by the President in which he alluded to the deaths as a “massacre” and to similar remarks by the Secretary of State, the Secretary of Defense, the Secretary of the Army, and various members of Congress. Before us, defense counsel contend that the decisions of the United States Supreme Court in Marshall v United States, 360 US 310 (1959)(conviction reversed because jurors read newspapers) , Irvin v Dowd, 366 US 717 (1961)(conviction reversed because media in courtroom disrupted trial), and Sheppard v Maxwell, 384 US 333 (1966) (conviction reversed because 2/3 of jurors admitted to being prejudiced against the accused and that he was guilty even before testimony began) require reversal of this conviction. In our opinion, neither the cited cases, nor others dealing with pretrial publicity and its effect upon an accused’s constitutional right to a fair trial, mandate that result.” United States v. Calley, 22 U.S.C.M.A. 534, 537 (parenthetical explanations added). The court goes on to note that most of the official government statements were neutral and refrained from drawing conclusions, and both the military judge and trial counsel were aware of and took measures to mitigate the potential effect of the widespread publicity. See also the court’s denial of the petition for injuncitve relief restraining media coverage, 19 U.S.C.M.A. 96.

    I think that, though it’s possible that it would become a problem, irreparable damage hasn’t occurred yet. Though Dew_Process is probably right about lots of motions (and an almost certain ground for appeal), if the goverment does its job right they should be able to withstand all those challenges. That said, it would help if senior members of both the legislative and executive made statements to the effect of “there’s an investigation ongoing, and we don’t want to jump to conclusions yet.”

  6. Socrates says:

    While deliberate and temperant statements by political leaders are always prudent, military justice should not be the only consideration. This is too narrow. Political leaders, especially the President (domestically) and Secretary of State (internationally) must be able to comment on such incidents to some degree and communicate with the public. Conveying moral outrage at crime is a legitimate thing for political leaders to do.

    I say the following with some irony – but is there not a principle in criminal law – dealing with conversations – that “silence conveys consent”? The same idea losely holds true for the public conversation.

  7. Anonymous says:

    Whence shall we expect the approach of danger?
    Shall some transatlantic giant step the earth and crush us at a blow? Never! All the armies of Europe and Asia could not by force take a drink from the Ohio River or make a track on the Blue Ridge in a thousand years.
    If destruction be our lot, we must ourselves be its author and finisher. As a nation of free men, we will live forever, or die by suicide.

    Abraham Lincoln
    1837

  8. LCDR F says:

    The UCI argument is a great defense tool as there are great cases that provide a strong remedy (ie. US v Gore). The argument for the Ft Hood case is similar to one raised (but never litigated as the case has been stayed) in the 9/11 case in Guantanamo wherein the defense alleged the following (motion overview):

    The Military Commissions Act of 2006 (MCA) expressly prohibits any unlawful influence upon the action of a military commission. Congress included this prohibition to establish the confidence of the general public in the fairness of the proceedings. President Bush has, through his public comments that are both prejudicial and inflammatory, unlawfully influenced this case by amassing such unmovable public hostility towards the co-accuseds that any objective, disinterested person would harbor a significant doubt that they can receive a fair trial by military commission. The Commission is duty-bound to ensure that the co-accuseds are afforded process that will guarantee them that a death sentence will not be imposed due to the passion and prejudice that has been injected into the proceedings by the President of the United States. Dismissal of all charges and specifications is the only remedy that can prevent an “intolerable strain on public perception of the military justice system.” United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001).

    For example, the defense found the following stats regarding public comments by President Bush regarding one of the co-accuseds, Khalid Sheikh Mohammed:

    Subsequent to his capture in 2003, the President has publically spoken about Mr. Mohammed, by name, on at least thirty-six separate occasions. The President’s statements about Mr. Mohammed are both prejudicial and inflammatory. For example, President Bush, the Commander in Chief of the U.S. military, has referred to Mr. Mohammed as the “mastermind” of the attacks on September 11th on thirty-six occasions, called him a “terrorist” on thirty-three occasions, called him an “extremist” on three occasions, called him a “killer” on two occasions, called him the “enemy” on two occasions, and called him a “radical” on one occasion. In addition, President Bush has directly stated or inferred that Mr. Mohammed is guilty of the charged offenses on thirteen occasions, that Mr. Mohammed confessed to the crimes alleged on twelve occasions, that he is guilty of offenses not charged in the present case on nine occasions, and that he will be brought to “justice” on thirteen occasions. The President’s statements about Mr. Mohammed have also “saturated the community.” For example, over a period of years, President Bush has spoken about Mr. Mohammed in the following locations: Washington D.C.; Langley, Virginia; Charlotte, North Carolina; Atlanta, Georgia; Reno, Nevada; Stockton, California; El Dorado Hills, California; Englewood, California; Scottsdale, Arizona; Macon, Georgia; Chicago, Illinois; Sarasota, Florida; Des Moines, Iowa; Sellersburg, Indiana; Statesboro, Georgia; Sugar Land, Texas; Perry, Georgia; Billings, Montana; Elko, Nevada; Springfield, Missouri; Joplin, Missouri; Le Mars, Iowa; Greely, Colorado; Grand Island, Nebraska; Pensacola, Florida; Dallas, Texas; New London, Connecticut; and Arlington, Virginia. In addition to those members of the public present to hear the statements, these statements were also available to be heard by the public, writ large, on television, radio, print media, and/or the internet.

    The facts don’t get much better than that for UCI.

  9. Cossio says:

    Hmmm…Kinda saw this one comming. I agree with the above posts that the “irrepitable harm” hasn’t been done yet.

    And Barack Obama has been very cautious in his remarks, though to the ire of Consevatives, it is for the best.

    This will rear its ugly head in pretrial motions, to be sure a DC isn’t doing his job if he doesn’t.

    However, absent any catostraphic failure on the President and the rest of the Government to remain neutral and unbias, this will go the way as so many other UCI motions – into the garbage.

    Although this makes for terrific discourse, anyone who is seriously entertaining the notion that this case will be in jeopardy of going away on a UCI motion needs a reality check.

  10. Cossio says:

    Ahaha !!

    We have Hasan’s counsel (so far) named:

    Lawyer asks investigators not to question Hasan

    KILLEEN, Texas – A lawyer for the Army psychiatrist accused in a deadly shooting spree at Fort Hood said Monday he asked investigators not to question his client and expressed doubt that the suspect would be able to get a fair trial, given the widespread attention to the case.

    Retired Col. John P. Galligan said he was contacted Monday by Maj. Nidal Malik Hasan’s family and was headed to an Army hospital in San Antonio to meet Hasan.

    “Until I meet with him, it’s best to say we’re just going to protect all of his rights,” Galligan said.

    Hasan, 39, is accused of opening fire on the Army post on Thursday, killing 13 people and wounding 29 before civilian police shot him in the torso. He was taken into custody and eventually moved to Brooke Army Medical Center, where he was in stable condition Monday and able to talk, hospital spokesman Dewey Mitchell said.

    Galligan said he didn’t know if Hasan had been medically cleared to talk.

    “There’s a lot of facts that still need to be developed, and the time for that will come in due course,” he said.

    Authorities won’t say when charges would be filed or if Hasan would face military justice.

    Galligan questioned whether Hasan could get a fair trial in either criminal or military court, given President Barack Obama’s planned visit to the base on Tuesday and public comments by the post commander, Lt. Gen. Robert Cone.

    More at:

    http://news.yahoo.com/s/ap/us_fort_hood_shooting

    ————————-

    Uh-huh

    Sure, President Obama shows up to Ft. Hood for a memorial and will (most likely) give a vanilla flavored sppech.

    And therfore Hasan will not be able to recieve a fair trial, not only at Ft. Hood, but anywhere in the US. So maybe we should move the trial to Yemen, if at all.

    Good luck with that argument Col. John P. Galligan.

    BTW, what is Galligan’s background? Well here:

    John P. Galligan
    Firm: John Paul Galligan

    Address: 315 South Main Street
    Belton, TX 76513-4868
    Map & Directions
    Phone: (254) 939-5646
    Fax: (254) 939-5646

    AL ’69, has graduated from the University of Puerto Rico Law School, Active Duty (ret.) Army

  11. Anonymous says:

    Here’s a clip from CAAF’s opinion in the Delmar Simpson case (the worst case of drill sergeant sexual misconduct ever):

    “The gist of Appellant’s argument is that unlawful command influence may be established if substantial public interest in a pending proceeding is generated when the military leadership provides information to the media in general, and members of the armed forces in particular, regarding pending charges, which then results in extensive media coverage, commentary, and congressional interest. As we noted in United States v. Rockwood, 52 M.J. 98, 103 (C.A.A.F. 1999), [**17] “Public criticism of military operations – including withering critiques of strategy, tactics, personnel policies, and human rights concerns – is inherent in a democracy.” HN9The prohibition against unlawful command influence does not require senior military and civilian officials to refrain from addressing such concerns — including matters affecting the training of recruits — through press releases, responses to press inquiries, and similar communications.

    When members of the public entrust their sons and daughters to the military training process, they expect to receive accurate and complete information about the quality of the training environment, including the state of discipline. The public also expects military leaders, who exercise both prosecutorial and judicial functions in the military justice process, to exercise due care in developing and executing communications plans when potential military justice actions are pending.”

    I don’t see much of a difference–President Obama isn’t saying anything the public doesn’t already know. I would bet that when this case finally does get to trial, the panel will undergo significant voir dire, and the defense will ask the panel members about President Obama’s statement. You know what the answers will be? “I don’t remember, it was so long ago,” or “it doesn’t matter to me what President Obama said, my decision will be based solely on the evidence brought in court.”

  12. John Harwood says:

    I think it’s a little nit-picky to claim the rather tame comments of President Obama constitute UCI. Certainly any panel of members will have to be thoroughly voir dired – who hasn’t heard of this? But the president has to be able to comment on domestic and military issues. When he does so in measured tones, that shouldn’t be the basis for UCI.

  13. RY says:

    It could make for an interesting strategic decision in voir dire… While certainly any member could ignore the vanilla comments of the President, you might think those from the opposing political party are more energized to do so. In essence, those most compelling in voir dire that they will give no weight whatsoever to the President (because they don’t give him much weight on anything else) may be the very people whose ideology is most dangerous for a capitol defendant (i.e., republicans). Thus, pushing the issue is voir dire may expose those most likely to vote in favor of the death penalty and yield little in the way of for cause challenges.

  14. Southern Defense Counsel says:

    Just to throw my two cents in, I think it’s awfully early to claim UCI in this case. From the article it looks like Mr. Zimmerman is complaining that President Obama didn’t say “allegedly.” Tempest in a teapot. I’d be more worried about the leaks of Maj. Hasan shouting Allahu Akhbar (especially if no admissible evidence of such a statement can be found).

  15. Roger Wilco says:

    Were these the comments after he gave his “shout out” at the Indian conference?

  16. Cossio says:

    RW,

    I think BO went a whole two minutes about Indians and Casinos before mentioning Ft. Hood as an after thought.

  17. Anonymous says:

    The “shout out” was to a Native American Medal of Honor winner.

    Yeah, that President Obama, what a jerk, right? Praising a MOH winner right before talking about a military tragedy.

  18. Former JAG says:

    Since Obama is Commander-in-Chief, Hasan, through his attorney Galligan, has STANDING to question whether Obama is a “natural born citizen” since Obama would be the ultimate “Convening Authority” in a capital case. Obama would have to approve the death penalty; therefore the issue of whether Obama is eligible to be President and Commander-in-Chief is a legitimate issue to Galligan to pursue.