MAJ Hasan’s Article 32 hearing has been pushed back from 1 March┬áto 1 June according to this KWTX report.

h/t Phil Cave’s Court-Martial Trial Practice blog

11 Responses to “MAJ Hasan’s Article 32 rescheduled”

  1. Cloudesley Shovell says:

    John Hinckley shot James Brady, Thomas Delahanty, Timothy McCarthy, and Ronald Reagan on 30 March 1981. His trial started 13 months later at the end of April 1982.

    Justice delayed is justice denied, but then doing it right is more important than doing it fast, within limits. One hopes that the Army can get this case to trial within 13 months.

    In the event of a conviction, I boldy predict that appellate review through CAAF will take at least 5 years, and at least 10 years with at least one remand in the event of a death penalty.

  2. Anonymous says:

    death penalty practice was a wee bit different in 1982 then it is now 30 years later.

  3. Cap'n Crunch says:

    Sure Anonymous, which is why the Witt case before the AFCCA still has not been decided, even though the conviction and sentence was complete on 13 October 2005. Lets see thats 5 years just for the service court review (and I’m not betting we get a decision in Witt before the end of 2010, but, of course, defer to Col. Sullivan in that regard), and then you can add another 3 years (at least) for CAAF’s review — thats 8.

    The point here is this: military appellate litigation, as Mr. Shovell notes, is notoriously slow.

  4. Anonymous says:

    it’s notoriously slow because we don’t know what the heck we are doing because we almost never do it.

  5. Cloudesley Shovell says:

    A little military justice history . . . Pvt. Clarence Whitfield raped Aniela Skrzyniarz in a farm field near Vierville-sur-Mer on 14 June. He was apprehended in the act by three US Army officers and Aniela’s husband. A general court-martial was convened on 20 June at the Vierville Chateau. Pvt. Whitfield was convicted and sentenced to be hanged. The Army JAG approved the findings and sentence on 24 July.

    Pvt. Whitfield was executed by hanging on 13 August in the garden of the chateau in Canisy.

    This all happened in 1944, so not under the current UCMJ. But why should a trial (through final execution) under the modern UCMJ take literally decades when the US Army managed to handle a death penalty case in only two months (and in the field at that!) in the middle of one of the most massive military operations in history?

    Major Hasan murdered 13 people and wounded 30 others in front of numerous witnesses. The trial should already be over, and this case in front of ACCA. That what should take weeks now takes years says something awful about not only the military justice system but criminal justice generally, and indicates a system paralyzed by fear.

    And I don’t buy the groundless theory that “death is different.” There is only one due process clause, and it applies to all cases equally. If the death penalty demands extra scrutiny, then every case, down to the most routine UA/drug pop SpCM demands the same scrutiny, as a matter of due process. If courts have to invent legal theories like “death is different” to justify their hesitance to approve death sentences, then the courts ought to have the courage to just disapprove death penalties (esp. CCAs, since they have the power to do so under Art. 66.).

    Same goes for the President, regardless of who’s in office. Refusing to act on otherwise final military death penalty cases is indefensible.

  6. Dwight Sullivan says:

    My Dear Admiral,

    Congress has made death different in the military. In any case, an accused can plead guilty — except a death penalty case. In any case, an accused can choose to be tried by military judge alone — except a death penalty case. The minimum number of members in a general court-martial is 5 — unless it’s a death penalty case, where the minimum number of members is generally 12. In most cases, CAAF can decline a servicemember’s petition to review a conviction, but Congress has required CAAF to review cases in which a CCA has affirmed a death sentence. Most sentences go into effect automatically or upon approval by the convening authority or appellate review. But Congress has required that the President approve a military death sentence before it can be carried out.

    Under the UCMJ, death is demonstrably different, as it should be. And in a military justice context, “death is different” isn’t a judicial invention; rather, it’s a statutory mandate. Of course in pre-UCMJ days, servicemembers were executed quickly. But there’s also been considerably scholarship that suggests innocent servicemembers may have been executed quickly — particularly minority servicemembers. In fact, one of the key historic events that set our military justice system on a path toward the UCMJ was the 1917 execution of 13 African American soldiers twelve days after their court-martial ended and before the case was reviewed by the Office of the Judge Advocate General. This is certainly one area where it is much more important to get the outcome right than to execute it quickly.

  7. Anonymous says:

    well heck, let’s make it really quick and just string em up with a rope like in the 1800s, no need for a trial, I mean if we are going to look back to 70 years ago why not go full hog?

    You have more due process because taking a life is more than any other punishment that is out there. Even Scalia and Thomas at least give lip-service to the basic principle of heightened due process for death penalty trials.

  8. John Baker says:

    Having just completed my first capital case, I can attest to the concept that legally, factually, personally, and professionally “death is different.” I didn’t really buy into this theory until I did a capital case. Training takes time, establishing effective rapport takes times, a seperate criminal investigation takes time, a complete mitigation investigation takes time, creating a record takes time, thinking takes time, etc…. In the Walker case, the prosecution was lead by a seasoned, experienced, and professional reserve ltcol (a former MJ who is an AUSA) who understood the need to allow the defense time on the front end to avoid re-doing the trial (I’ve heard the same was true in Akbar’s case) and the case was presided over by an experienced and patient military judge who set firm deadlines and got Walker’s re-trial to the members within 18 months of the remand. Similarly, the SJA ensured we had funding to train and investigate and allowed me to put together an extremely effective defense team. Funny thing about having the parties represented by experienced litigators and going slow in the beginning — it made us get to trial faster at the end.

  9. Cloudesley Shovell says:

    I am not disagreeing with any of the fine non-anon comments following my discussion of history. My real point is why all those hurdles exist in the first place in a death case. And I stand by my point. The hurdles are there because of fear, at multiple stages. Courts are scared to death of the death penalty, because they might make an irrevocable mistake. Thus all the hurdles and “death is different” approach to appellate review. Many, if not all, of those extra hurdles and fears disappear when it is just a regular serious felony with a decades-long sentence. Why? Is not every appelllant entitled to the same level of review? Can courts be more cavalier about a life sentence or a 30-year sentence because heck, if there’s a mistake it can be fixed with habeas, and they guy’s not dead, just rotting in prison? It seems to me to be a poor approach. There should be one standard of review for all cases. (I’m referring to appellate review when I talk about “death is different” by the way.)

    Given the “death is different” approach on review, and all the procedural hurdles and difficulties in trying a death case, if I were a CA or SJA advising, I may well advise to just go for the life sentence, now that LWOP is available, especially if doing so gets a plea deal. A death sentence is, as a practical matter, an LWOP sentence anyway. Why bother going for death with its demonstrated issues and long-term costs, based on the nearly-inevitable appellate wrangling, remands, and endless litigation? It’s not worth it.

  10. Anonymous says:

    We don’t give the same level of review to someone who is facing less than 6 months confinement and no discharge in a court-martial as we do to someone who gets a dischage and say no confinement.

    We have different levels of due process based on the potential deprivations all of the time. Why is it surprising to you that we also do so when the ultimate punishment is at stake as compared to when it is not?

    It’s a pretty clear sliding scale…

    admin
    misdemeanor/straight special
    BCD-Special/GCM leading to less than death
    Death

    Each step has it’s own increasing level of due process.
    It’s not about being “cavalier” it’s about being “extra” careful. And yes, it is about the fact that you can fix something while a person is still alive, not so much after they are dead.

    We have at least four levels of due process granted in the military system from NJP to DP. I may even be missing one or two. It’s a bit more complicated and varied than you are making it. And giving one group more due process does not logically suggest per se that the other groups have inadequate due process, which seems to be your argument.

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