According to this Stars & Stripes report, “Army prosecutors have sent a notice that they plan to seek the death penalty against Maj. Nidal Malik Hasan, accused of the Fort Hood shootings, according to Hasan’s attorney, John Galligan.”

(One of our readers provides a link to the document that Mr. Galligan references, here.)

But here’s a warning:  much of the information in the article is just plain wrong.  Things start to go off track with this:  

The military last executed an inmate nearly 40 years ago.

The execution took place on April 13, 1961, when U.S. Army Pvt. John A. Bennett was hanged after being convicted of the rape and attempted murder of an 11-year-old Austrian girl.

Uhm, April 13, 1961 was more than 49 years ago, not “nearly 40 years ago.”  Things get worse after that, since at least that error is self-evident.  But I’m not going to squander my time cataloguing all of the errors in the article.  Bottom line:  don’t rely on the information in this article.  (That said, it’s a pretty good bet the government will seek death in the Hasan case.)

15 Responses to “Stars & Stripes reports prosecutors have notified MAJ Hasan’s defense counsel that the U.S. will seek the death penalty [expanded]”

  1. Anon says:

    Galligan is an idiot. If you go to his blog (, he’s got a copy of the memo. That is not a notice of aggravating factor under RCM 1004. That is an answer to the investigating officer’s question on which aggravating factors might be applicable. What a complete clown. Can’t believe that man was a military judge.

  2. Anonymous says:

    You know ordinarily I’d understand the concept of trying to generate sympathy for your client, e.g. portraying him as being railroaded by “the Man.”

    But in this case, the vast majority of folks in the country would pay good money to drive the train on that railroad, so I don’t understand why Galligan is wasting his time on that blog trying to portray his client as being railroaded.

    Would seem to me energy would be better spent quietly building the strongest mental disease or deficiency case that he can.

  3. Mike "No Man" Navarre says:

    Here is a question, is it a good strategic choice for the DC to be raising this question now and essentially blunting a perfectly good Apprendi/Ring v. Arizone issue by having the Art. 32 investigate the aggravating factors, make findings, and have them available for the CA in the charging decision? I don’t know the facts and can only speak in generalities, but, given the aprticular aggravating factor in this case, I’d say the charging issues are largely academic and I can see the strategy behind bringing out the TC early on this issue and forcing the TC to specify the aggravating factors before the CA can do so or has been provided any guidance on doing so. Without knowing more, I’d say that memo makes for a nice appellate exhibit.

  4. Cloudesley Shovell says:

    Good sir CAAFlog,

    Rather off topic, but it appears that as far as the courts of New Jersey are concerned, you have no grounds for criticizing Stars & Stripes. You, after all, are a mere blogger, whereas Stars & Stripes is a recognized news entity, which adheres to standards of professional responsibility regulating institutional journalism, such as editing, fact-checking, and disclosure of conflicts of interest.

    To quote the New Jersey Court:
    Simply put, new media should not be confused with news media. There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting. The transmission or dissemination of a “message” through the new medium of the Internet, or the display of one’s content or comment thereon, does not necessarily entitle the author or writer to the same protection as a “newsperson.” Although any attempt at defining “news” would ultimately prove illusory, some delimiting standards must pertain lest anyone with a webpage or who posts materials on the Internet would qualify.

    Too Much Media, LLC v. Hale, 2010 N.J. Super. LEXIS 62 at *26 (App.Div. Apr. 22, 2010).

    Another quote:

    Defendant has produced no credentials or proof of affiliation with any recognized news entity, nor has she demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest.

    Id. at *32.

    In reality, if you get into the meat of the opinion, you’d probably qualify as a “journalist” or “newsperson” under the NJ court’s test, but when appellate judges use phrases like “the new medium of the internet” they deserve ridicule. Anyone who thinks that having editors and fact-checkers (hah!) makes established “real” news media somehow better just isn’t paying attention. But then, imagine the horror if ordinary citizens, the unwashed masses, those plebes, qualified for protection under a shield law meant for chain-smoking hard drinkers in fedoras and wrinkled suits. Can’t have that!

    Apologies for ranting off topic,
    Yrs humbly,

  5. Mike "No Man" Navarre says:

    CS: You can’t imagine how on topic you actually are.

  6. Article16 says:

    They’ve spent considerable energy trying to get a mitigation specialist–their priorities appear right to me.
    It also seems like a pretty credible complaint that the prosecutors have specific defense-requested documents in hand, and yet certain “higher-ups” are not approving or stalling in releasing them to the defense. So it’s not working as it does in other cases, which is frustrating.
    I could see the government-side hesitation in that the defense is pretty open in releasing material & taking opportunities to complain to the press, but asking for, e.g., an FBI report–with tons of statements and contact info, I’d imagine–is completely legitimate and necessary.

  7. Snuffy says:

    Keeping off topic. But CS- arent the rule sin California going the opposite way (NJ v Cali- of course they are). this was “evidenced” in akl the hullabaloo over the leaked iphone and Gizmodo.

  8. Anonymous says:

    We will see in Akbar, where Ring/Apprendi was raised and it will be the first military DP case where those two cases apply fully.

    If eventually, ACCA or CAAF overturn based on it, then it will have been a bad strategic choice. If they say Ring/Apprendi somehow don’t apply to the military or some other way say it isn’t a problem, then it will have been a good? strategic choice to know early what the aggravating factors are.

    I’d personally side on letting the government have every possibility to mess up without any intervention from me.

  9. Anonymous says:

    My understanding is that the mitigation expert approach by defense is not exactly…perfect.

    Regardless, I think it’s a waste of time, even if it is a “credible complaint” this isn’t a case that is going to garner any sympathy and if he is going to go to the media and try and establish a meme, my guy is nuts works a lot better than my guy is getting screwed by the man.

  10. Article16 says:

    If you read the requests for mitigation experts on Galligan’s website–three alternatives have been proposed–you’d probably see that requests are fine. The basis for denial is what seems strange to me (first choice denied because she’s an attorney).

    I don’t understand the going to the media part, either, but the prosecution should work to furnish things that have been requested that they have on hand or that they can easily obtain…make a checklist…send things over and check them off. The stakes are high, and there’s no good reason for them to deviate from prevailing practices of open discovery.

  11. I've got it !!! says:

    Galligan is really a genius !!! Don’t you see his plan of making IAC issues on his client’s appeal !!!

    Kind of like “The Real Ronald Reagan”:

  12. Anonymous says:

    It may be “strange” but denying any expert who is also an attorney is not unusual and happens often out of concerns (which may or may not be legitimate, I lean towards may not be) that the CA would be in effect funding an attorney for the accused.

    There are quite a few qualified non-attorney mitigation experts out there that it seems to me Galligan could have found one by now. And based on Galligan’s own use of the plural, all or nearly all, of his requests so far have also been attorneys.

    “The US Army is now playing games with the notion that because the requested mitigation specialists are also attorneys, funding their appointment to the Defense Team would somehow run afoul of the prohibition on funding civilian counsel for a military defendant.” Blog Post dated 25 Apr 10.

  13. Phil Cave says:

    Actually, I have been told it’s now Army policy to ask the IO to investigate aggravators?

  14. Cloudesley Shovell says:

    Mr. Snuffy:

    According to the NJ court’s opinion, there is a California case reaching the opposite conclusion. Both are state cases deciding the applicability of shield laws, as far as I know.

    Don’t know much about the Apple case, except that I agree with what Jon Stewart had to say about it. Only took Apple about a generation to switch sides in the whole “1984” metaphor.


  15. DC Steve says:


    Be real now. I know part of you is dying to draw up the litany of errors.

    Please! It will be fun! (But, in case there are other math errors, please feel free to skip over those.).