Here is a collection of reports on the MAJ Hasan arraignment.

NYT with this additional statement from “former” Hasan defense counsel John Galligan, “”Over the past year, my family and I have been vilified by many for defending Major Nidal Hasan. . . . That disparagement is misplaced. You will recall that an early president, John Adams, was subjected to similar scorn when he led the defense of British soldiers charged in the Boston Massacre. President Adams reminded critics that he performed a vital role and served a noble function.”

CBS News reports on the eagerly awaited entry of a plea, which was deferred at yesterday’s hearing. Iwonder what it will be?

Killeen Daily-Herald, for a little local flavor and noting the addition of a new TDS attorney, CPT Justin Oshana, to the defense team (which has been LTC Kris R. Poppe and MAJ Christopher E. Martin).

22 Responses to “MAJ Hasan Arraignment Reports”

  1. Ama Goste says:

    Interesting that the NYT believes conviction=death sentence in the military. (See the end of the article.)

  2. Mike "No Man" Navarre says:

    Ama–I’ll cut them a little slack. It says “if convicted . . . . COULD join . . . . death row.” That’s close enough for government work ;-)

  3. Mike "No Man" Navarre says:

    I take that back, it says “will join.” Nice.

  4. Bill C says:

    Shocking development in the case:

    At one point, a lawyer for the prosecution asked to read the charges, but one of the defense lawyers told the judge that Major Hasan had waived the reading.

  5. Ama Goste says:

    While we’re critiquing these articles, the Killeen paper says Hasan asked to be tried by a panel of 12 officers. I didn’t realize he could go judge alone in a capital case or have enlisted on his panel, given his rank. Of course, we have no way of knowing whether there will be 12 or 16 or 13 sitting on the panel either. I seriously doubt choice of forum was discussed in the 15 minute arraignment during which Hasan released his lead counsel.

  6. Mike "No Man" Navarre says:

    Isn’t forum selection part of the Benchbook gouge for arraignment? The script has some issues when it is a capital case.

    By the way, I just tried to update our link for the 2011 Benchbook. That is way too high tech for me and more complicated than encessary. Can’t someone just put a PDF on the web?

  7. k fischer says:

    Bill,

    I heard they deferred motions, too. I’m appalled. How dare they!

    By the way, this question goes out to all the defense attorneys: How many times have you answered, “Yes” to the question, “Would the accused like the charges read?”

    Speaking of defense counsel and their dirty defense tricks, I’ve been considering organizing a deep sea fishing CLE inviting COL(R) Galligan, Jose Baez, and (LCDR) Charlie Swift to speak and provide insight to the security risks of representing those people love to hate. I bet they have some interesting stories. Unfortunately, I’ll have to wait for Red Snapper season to open back up……

  8. Bill C says:

    Once: TC was being a complete a**. It was a bad check case. Had him read every one of them. MJ couldn’t stop laughing.

  9. Ama Goste says:

    Yes, forum selection is pretty early in the script. I’m just doubtful how much of the script they got through in 15 minutes. Maybe I’m wrong.

    Get hold of Col Rodger Drew (caaflog should have contact info) for Benchbook issues–the electronic version is his baby.

    KF–of course the answer is “never,” although I’ve seen some defense counsel insist on having them read on occasion.

  10. Charles Gittins says:

    I made the Government read the allegations in the Greeneville Court of Inquiry. The Navy was playing games with the press about the specific allegations involving the skipper, so I called them out and made them read them in open court. I think I have done it in other cases where the G has played games, but that is usually the reason that I do it — to have transparency when I am not inclined just to release the charge sheet to the press. Of course, since some high profile slams to the G in the late 90′, (Mckinney comes to mind) the Government has started to try to play nice with the press and kiss ass with background briefings to the press
    .

  11. Dew_Process says:

    KF – I’ve done it a couple of times; once where the Gov’t decided that the Charge Sheet itself was classified Secret, even though there wasn’t a thing on it that was properly classified and we had objected at the Art. 32, about it. It took 3 days to “de-classify” the charge sheet.

    The other was an Art.15 turn-down, where the larceny specification alleged that my client had, “with the intent to permanently deprive, wrongfully and unlawfully taken two pieces of bread, an unknown amount of peanut butter and jelly, of some value, the property of the U.S. Air Force.” My client, a cook, had also originally been charged with violating an order from his 2LT not to take food out of the chow hall – only the 2LT had been discharged for not making his promotion to 1LT [something REALLY tough in the AF], so they went to a Special CM on the purloined “PB&J” sandwich. With a full confession, after the laughing stopped, the enlisted panel came back with the 2 word verdict.

  12. Ama Goste says:

    All good reasons to have the charges read. I’ve also seen the charges read in cases in which the defense thought the charges failed to state an offense.

  13. k fischer says:

    Dew,

    I don’t know what’s worse. The amount of Taxpayer dollars wasted on this frivilous court-martial, or the possibility that a TC would be forced into taking said charge to a CM by a 2LT.

    I’ve done it twice. One time I was ticked about my client being overcharged.

    The other time, the TC charged my African American client with calling his African American friend a n!**er. All of the witnesses told me they heard him say n!**a, which is more of a term of endearment amongst men of color during after duty hours. I wanted to hear him pronounce the word to set him up for my awesome 917 motion by arguing the difference between n!**er and n!gga, and that the charge should be dismissed since there was no evidence that my client said ‘n!**er.’ The MJ slapped it down and castigated me for nickel and diming him and not bringing a ‘real motion.’

    My client was fully acquitted, but I do have a verbatim transcript of the trial, which makes for great reading.

  14. Ama Goste says:

    KF, how did you get a verbatim transcript from an acquittal?

  15. Charles Gittins says:

    I have had V transcripts made in some of my cases. They do it so they can explain what happened in the acquittal, I think.

  16. Mike "No Man" Navarre says:

    KF–Im similar situations one might ask the court for an expert sociologist (ala Henry Louis Gates) and make the gov’t pay for it. It sets up the issue nicely for appeal should your client not be acquitted.

  17. k fischer says:

    Short Answer: The SJA told the court reporter to do it, so he could have a record in order to file a SOCO/bar complaint against me.

    Long Answer: My client, an MP dog handler, was charged with a bunch of offenses involving shooting a loaded firearm on Ft. Benning at 12 a.m. He decided to pop off a round after his sober buddy punched him because my drunk client accidently punched him when they were slap boxing.

    The only problem with the Government’s case was that my client used a fake 9mm to train his dog to get used to gunfire and THAT is what he shot in the air. The Government never got the fake handgun, and immediately preferred charges for agg assault, discharging a loaded firearm, communicating a threat while holding a loaded firearm and the 134 N-word charge.

    I did not submit a discovery request, so it was my opinion that I did not have to comply with reciprocal discovery. When I told the MJ what my defense was, the TC complained that I had not turned over any fake handguns to him. The MJ confirmed it on the day of trial by saying that if I wanted to introduce the fake handgun through my client, then he would grant the TC a continuance to investigate the fake handgun. I did introduce the fake handgun into evidence through my client, but the TC did not ask for a continuance.

    Thankfully, they did not charge my client with disorderly conduct or public drunkeness, so he was fully acquitted because I argued that a projectile cannot be fired from a fake handgun. It looked real, it was semi-automatic, and it was LOUD. I clumsily conducted a demonstration outside in front of the panel and my ears were ringing.

    So the SJA submitted a SOCO complaint stating that I obstructed justice, and I was cleared. A month later, the TC filed a Florida bar complaint, and I was cleared because in Florida it is very clear that you can opt out of discovery just like the military.

    There were huge ommissions of material facts in their complaints, which ironically were the same. They actually had the gall to say that had I told them about the fake handgun, then they would have opted to conduct no court martial at all, saving the system a whole bunch of time. If you knew who the SJA and COJ were at Ft. Benning in 2006, then you would know what a farce that statement was.

    When I first got to TDS, I filed a 31 page UCI motion at a GCM, which resulted in the case being dealt to an Article 15 within days. I kind of called out the SJA for failing to reel in his out of control GCMCA who published his list of offenses that my client was charged with for which he was “non-negotiable.” A few months later, I caught a TC in an ex parte communication with a 32 officer on tape b/c the court reporter forgot to turn off the recorder during a break: http://www.kylesfischer.com/Court_Martial_Multimedia.html

    I requested and got a new 32, after which my client was fully acquitted at trial. At the time of the complaint, I had 2 full acquittals and one manslaughter acquittal in a two-month period of time, plus a dismissal at the 32 on an Article 120 offense about the same time. It appears they filed a complaint to (a) get me back for the bona fide ethical issues I raised against them or (b) to slow me down because I wasn’t rolling over on my clients the way a good little TDS attorney should.

    All they did was throw gasoline on the fire……..

  18. k fischer says:

    No Man,

    I should have just to run up the expenses on them, but I had his company commander who was a man of color explain to the panel who had three African American members that after duty, which was when he said it, it was neither service discrediting, nor was it prejudicial to the good order and discipline of the unit.

  19. Phil Cave says:

    KF:

    Agree on the reciprocal and opting out of discovery.

    The “rule” starts out very clearly (OMG it’s actually written in that red book people keep on their desk and rarely open [I know, I read mine on the computer too :-) ]):

    IF (emphasis added) the defense requests disclosure under subsection (a)(2)(A) of this
    rule, . . .

    That is the opt out language that I assume your are referring to.

    Now, let me add another piece of fuel (and this is sometimes relevant, but not to your scenario), the same sentence goes on to say, ” upon compliance with such request by the Government[.]

    Well ladies and germs. What does “upon compliance” mean? You’ve been given the usual hand-out around the time the case is referred. And you’ve sent your discovery request, and as sometimes happens they don’t even acknowledge receipt, or if they do, they say, we’ve given you everything. Is that in fact compliance? Well, I’ve been there but haven’t gotten to the final question, because the MJ has required compliance with things like Brady and such. In those situations (that I’m feeling the prosecutor is one of the slow-rollers or gamers out there) I file a Notice of Intent Not to Comply,” and cite the government’s non-compliance. Then I wait, because that doesn’t always get them moving, and then file the discovery motion. One of these days . . . .

    BTW Did you file a cross ethics complaint and lawsuit for a frivolous ethics complaint?

    But for the more common situation where there is a discovery request, read the language.

    You only have to give reciprocal on what you will use in your case in chief. If you are using for XE, you don’t have to disclose even if there is a right to reciprocal because you asked and they gave. Of course the risk is you can’t get the evidence in through XE and you are then stuck because you can’t use it in your case-in-chief. Here is what the rest of that part of the rule says — and I have used this.

    [A]nd (emphasis added) which the defense intends to introduce as evidence in the defense case-in-chief at trial.

    Therefore, reciprocal discovery need not be provided if the evidence is only to be used in cross-examination of prosecution witnesses. CAUTION, if you do it this way, you have to moot the consequences on your case if it can’t come in through cross-examination and the only other way to get it in would be through the client or a defense witness during the defense case.

    Oh, and this also means that you have to give “evidence” back to them — the TC gives the ROI, in the ROI is a letter, an email, or something. You look at that document and realize it can be of help. Er, you got it from the government in the first place, so you don’t have to give it “as reciprocal discovery” folks.

    And something else on discovery, the . . . nah . . . I’ll save that for later. Gotta finish a pre32 objection to a 32 for failing to comply with R.C.M. 405(f)(10).

  20. k fischer says:

    Phil,

    I did not file a cross complaint because the relationship was contentious enough at that time. Plus, I figured I would take the high road. However, I did make numerous references to the false statements and ommissions of material fact in the complaints in my rebuttal just in case someone who was charged with investigation me wanted to investigate them sua sponte.

    Later, I actually looked at filing a lawsuit after I realized that I would have to put down on every application for the rest of my life that I had a bar complaint, but Georgia and Florida bars attorneys by statute from suiing for slander when someone accuses them of an ethics violation, even if it is a false allegation.

    I agree with you on the reciprocal issue, but I know a military judge who discussed discovery with me and the TC at a trial at GITMO who said he expected open discovery, even if there was not an initial request by the Defense. I think he said that neither side deserved a trial by ambush.

  21. Dew_Process says:

    As stated by Mr. Justice Black in Williams v. Florida, 399 US 78 (1970):

    “The defendant, under our Constitution, need not do anything at all to defend himself, and certainly he cannot be required to help convict himself. Rather he has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process the defendant has a fundamental right to remain silent, in effect challenging the State at every point to: “Prove it!” 399 US at 113 (Black, J., concurring in part and dissenting in part).”

    And:

    “The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case.” Wade v. United States, 388 U.S. 218, at 256-58 (1967) (White, J., dissenting in part, concurring in part)

  22. Michael Korte says:

    Same as Bill C: I only have the charges read when the prosecution has overcharged onto 3-4-5 pages. Goal: lost voice so they can’t respond to 917 motions. And if that’s wrong, I don’t wanna be right.