It has been more than a month and a half since we last reported on the postponed Maj. Nidal Hasan Art. 32 hearing.  Austin News 8 reports here that the more things change the more they stay the say.  Hasan’s attorney is still complaining about a lack of discovery.  Though he says he has received 80-90,000 pages from the government, he is quoted as saying that key documents (such as the West-Clark report) have still not been produced.  Mr. Galliganis quoted as saying that 113 witnesses, many of them government witnesses, are scheduled to testify at the Oct. 12, 2010 Art. 32 hearing.   Given the facts of the case, I am curious why 113 witnesses (and, yes, I realize they won’t all testify) are needed for a preliminary hearing?  I guess we’ll just have to wait until this Fall.

9 Responses to “Hasan Art. 32 Update”

  1. Ama Goste says:

    Assuming a push for this to be referred as capital and realizing “death is different,” it still seems the government could put on about 3 witnesses to get to “prima facie”–a survivor who says “that’s the dude who shot all those other people and me,” a medical person to say “yep, multiple people died,” and a psych to say “he can aid in his defense and wasn’t insane when he committed the crimes.”

  2. Presley O'Bannon says:

    I think “death is different” wins out. Given the appellate track record for military death cases, if they really want this guy dead they are going to have to take anal-retentive to a whole new level and go above and beyond for all requirements.

    Although, if they aren’t freely providing discovery, they have already begun with an inauspicious start.

  3. John Harwood says:

    As a DC, I’m partial to early discovery. However, since the case has not yet been referred, there’s no hard and fast discovery obligation yet. Am I wrong?

  4. Anonymous says:

    the problem I’ve seen in my track record with appellate death penalty cases is less on the government not being anal retentive enough and more on defense counsel not being qualified to do a death penalty case.

    Not a knock on defense counsel, because we don’t provide the level of preparation and training that the folks who do this in the civilian world often get.

  5. Anonymous says:

    I hope Galligan charges by the hour. Why not 114 witnesses? I’ll fly over as an aggravating witness to describe what I saw on CNN and how it harmed morale here in D.C.

  6. Anonymous says:

    Have you read some of the appellate capital cases arising out of states like Georgia and Florida? The civilian side of the house encounters the same funding and experience issues as the military. From a layperson’s viewpoint, the more recent capital cases tried under the UCMJ seem to have better overall litigation support than most states currently do.

  7. Anonymous says:

    Not sure what the facts are behind the discovery dispute, but I cannot fault Galligan’s statement that the Army’s track record in capital cases is less than stellar. TC had better have a very defensible reason for any production request they deny.

  8. Anonymous says:

    not from my pov, but like other things, everyone’s got a pov.

  9. Phil Cave says:

    John, I take a strong hard position that R.C.M. 405(f)(10) in particular is a broader production requirement than R.C.M. 701. If the defense sufficiently identifies sought information the government has the obligation to produce unless they can demonstrate unavailability under R.C.M. 405(g). And as oftens happens to me, “It’s not in my file” is NOT the answer under R.C.M. 405(f)(10), anymore than it is with a specific request under R.C.M. 701.
    Article 32’s often being the road-bump on the way to trial the prosecution unfortunately gets away with it because MJ’s won’t direct a new Article 32, but go to the government default that the defense has the information now and can prepare for trial. Thus everyone ignores the importance of the Article 32 process to a fair process — because it’s a mere roadbump on the way to trial.