Here is a link to an all CAAFlog NLJ article on the challenges of the Hasan case.  CAAFlog, Gene Fidell, and JO’C are all quoted in the story.

10 Responses to “NLJ article on Maj. Hasan Case”

  1. Balkan Ghost says:

    Well-said. The fact that we keep re-inventing the wheel, especially when the stakes are as high as they are in capital cases, is a strong argument against the “every officer is a pentathlete” concept that is so fashionable in JAG circles. There will always be room for specialists.

  2. Anonymous says:

    The fact that 90% of Majors and above get told (and it’s often true) that you will never see the inside of a court-room again is inexplicable to me.

    I understand the world needs Ad Law attorneys too. I understand some folks want to be SJAs one day. But there are enough of those folks out there and enough that don’t want to be criminal law attorneys the rest of their career to leave open those who do a track.

    So you can have defense counsel and trial counsel who are Majors or even heaven forbid Lieutenant Colonels, particularly in the more complicated cases. But we can’t do it because, well, we don’t and because to get promoted you have to be a jack of all trades officer.

  3. John O'Connor says:

    Anon:

    That was a point I made to the NLJ reporter (though she made the point ably through quotes from others). The JAG is unlike the civilian law firm model in that it takes its more experienced litigators out of the courtroom in many (though not all) cases and elaves litigation largely in the hands of more junior attorneys.

  4. Look, Man says:

    The Army has just started a program for prosecutors – 15 slots for majors and LTC’s to try complicated cases. Perhaps the defense will catch on too?

  5. John O'Connor says:

    Can the defense really “catch on” and replicate this program on its own initiative? I assume they can only work with the personnel the Army gives them.

  6. Comrade Cossio says:

    The slots should be based on experiance, not rank. It is erroneous to assume a Major has more experiance than a Captian because:

    1. Some Captains have a lot of outside experiance and joined JAG later in life.

    2. Some Majors/LtCl started from different career fields and transfered to JAG.

    3. Some JAG Majors just simply lack trial skills and have a better time with other areas of Military Law.

    Speaking for my “experiance” in the AF I do not think the Airforce has any problem with getting experianced Captains or even Majors and LtCl. into the courtroom.

    As I stated earlier they had LtCl. Spath actively prosecuting cases.

    In addition when, and I am speaking about my own “understanding of the ways of the world”, it would be a calamity to thrust someone who has been working in an administrative capacity (and out of practice) back into practice, no matter how good they were.

    Outside the Military there are many examples such as Chief Justice Jackson’s lackluster Prosecution of Herman Goering.

  7. Anonymous says:

    Perhaps someone can enlighten me. I continuously read about the military counsel’s “lack of capital experience” and the defense’s “lack of resources” – many of which are contained in this article and the subsequent comments/whinings. As to the latter issue, my question is: compared to what? Exactly what plethora of resources does a defendant in the civilian sector have that a military accused doesn’t. Last time I checked, I didn’t see state and federal authorities handing out checks to defense counsel to go hire their own private experts. In the military, however, the defense gets whatever expert assistance it needs, so long as it can meet the Gonzalez test. How exactly is this a failing of the system and how exactly is a civilian defendant better off?
    As for “experienced counsel” why is there this belief out there that most civilian defendants are represented by qualified capital litigators? I’ve been to enough death penalty courses and seminars to know that any such sentiment is a complete lie. Most civilian defendants are represented, at trial, by public defenders who have neither the experience nor the resources to adequately defend their clients. Most people convicted of a capital offense don’t receive “capital-qualified” legal counsel until their case is on appeal; at which point the new counsel will, without a doubt, raise IAC against the trial defense counsel. It’s simply the way its done.
    So stop all the “Woe is me” crap about how bad the accused has it in the military. It’s simply not true. Are there inexperienced counsel in the military? Yes, without a doubt. But are they any less experienced then their civilian counterparts? No.
    And can we please stop with all the “He won’t be able to get a fair trial because of all the publicity and emotion.” John Muhammad was tried in both Virgina and Maryland after killing 10 people and holding the DC area hostage for weeks. I seem to remember a fair bit of publicity in the Washington Post during that time period. I guess he didn’t get a fair trial either, huh? Anyone who’s ever tried a military capital case knows this case won’t go to trial for at least 2 years. By that time, it’s unlikely anyone on the panel will have been stationed at Ft. Hood at the time of the shooting. All of them will say they heard about the shooting and saw the news – just like everyone else in the country. All of them will say they can decide the case on the evidence. Motion for Change of Venue – DENIED. Just as it should be.

  8. Southern Defense Counsel says:

    Anon,

    Your response seems to be a variation of, it sucks for civilians, so it should suck for military members too. I fail to see that logic. If we CAN do it better, we SHOULD do it better. The same goes for the change of venue argument. I fail to see what good it does to try these cases at Fort Hood. Given the vast majority of the victims were military, they are less likely to have any direct, non military ties to Killeen, TX than they would any other area in the country, so it’s not doing it for the victims.

    Same goes for deterrence. This trial will be highly publicized. All Army units will see it, will know what happens, will see the military justice system in action.

    Retribution? Same thing. No retributive purpose is served by trying the case on Fort Hood. So why would you risk the off chance that an appeals court agrees that not moving the trial caused prejudicial error? It would cost the government so little to do this, and save so much in extra litigation. Again, just because the government can do something to the detriment of the accused’s rights, doesn’t mean it should. On the other hand, if they can provide more benefits at a lesser cost, I see no reason to deny it.

  9. John O'Connor says:

    “Again, just because the government can do something to the detriment of the accused’s rights, doesn’t mean it should. On the other hand, if they can provide more benefits at a lesser cost, I see no reason to deny it.”

    O’Connor’s Law: Don’t create appellate issues by doing stupid things in easy cases. I’m not sure this applies to motions to change venue, as it’s a real uphill argument to bounce a case on venue grounds when the members say they can be impartial, but this is the sort of case where minimizing appellate risks seems prudent.

  10. Comrade Cossio says:

    I’m with Mc’Connor.

    First, The Gov. can get a conviction in any state, any base. Why? Because he’s guilty. The only thing he can do is prevent his execution. Which considering he may be paralized from the waist down for the rest of his life may not be a bad thing for him to think about.

    Second, I agree with Anon 0931. Military Counsel are typically better than their counterparts. In addition I am sure the Army has an interest in Hasan’s rights and even an interest that Hasan recieves quality counsel with the Four Layers of Appeal this thing will hit.

    Third, he’s already got good counsel. He has a Civilian lawyer who got his J.D. next to a Taco stand* in Puerto Rico and a Military DC (potentially a second DC and Military Investigator if his pre-trial motion is granted).

    *Tacos are actually a Purely Mexican Cuisine, “Mofongo Stand” doesn’t make the joke as funny.