The Washington Post reports that Military Judge COL Gregory Gross has denied the defense motion to recuse him from the Hassan case. The defense sought the recusal in part because COL Gross was on Fort Hood the day of the shooting presiding over a court-martial.   Given the fact that military judges have served a career in the military by the time they become judges, would it be possible to find any military judge who did not feel personally impacted by the Fort Hood shootings?

16 Responses to “Military Judge will not Recuse Himself in Hassan Case”

  1. Babu says:

    Mr. Hansen, while it may not be possible to find a MJ who was entirely unimpacted, I would think that it would be relatively easy to find a military judge who did not personally face a potential threat of violence to himself or his family. 

    From the article:  “Gross has said he was presiding over a trial on Nov. 5, 2009, when someone handed him a note instructing him to take a recess immediately. He said he then called his wife, who was shopping on the post with some other relatives, but they were fine and left before Fort Hood was locked down.”

    So both the military judge and the military judge’s family were personally under a perceived threat of immediate violence as a result of the accused’s alleged actions–actions which are now the subject of the capital court-martial the military judge is presiding over?  

    Res ipsa loquitur,  

  2. Article16 says:

    The latin is not perfect, but yes, the judge speaks for himself.

  3. stewie says:

    It’s not a crazy argument, but probably not enough to get an appellate court to bite.

  4. McMurphy says:

    Judge should absolutely recuse, but seeing as a room ful of people ID’d the perp and he was shot in the spine at the scene of the crime, I’m not sure any error in this case will be seen as anything other than harmless.

  5. stewie says:

    Why should he “absolutely recuse?” I can see the argument, it’s a fair one, I get that he was tangentially affected by the crime in a relatively minor way, and if this were judge alone (which obviously it can’t be) then the bias concerns would grow…but not sure it’s as black and white clear as you state.

    Now maybe in hind sight, Army Trial Judiciary should have assigned another judge far removed to the case from the beginning, but it doesn’t strike me as something that “speaks for itself.”

  6. anon says:

    I believe Sharrod states that there is no distinction between the test for judge alone versus with members, it is still whether an objective person would think that the judge is not impartial.  Might have a tough time finding a judge for some of these terrorism cases if we view the community at large as a victim. 

  7. stewie says:

    If that is the test, then a panel member would simply be rehabilitated by saying he/she wasn’t directly affected and they can put it aside.

  8. Dew_Process says:

    Or they could consider the approach the AF used a couple of years ago when they prosecuted the 0-6 JAG and all of the AF judges recused themselves, they detailed an Army judge to preside.  Whether or not there’s an ethical or legal duty to recuse, is one issue — but, why in a capital case where the DP is a fair probability, create another appellate issue??  From a simple common-sense perspective, it makes no sense.

  9. Ama Goste says:

    Anyone remember what happened when a highly esteemed retired Army JAG declined to recuse himself from the Tim McVeigh OKC bombing case?  Um…yeah, he didn’t preside over the trial.  Of course, in that case, Judge Alley’s office was actually damaged in the blast.  Still, I’m with Dew on this one.

  10. Charlie Gittins says:

    I am with Dew.  Assign a Navy or Marine Corps GCM judge and take the issue off the table.  Dumb, dumb, dumb.  The call to the wife shopping on base is problematic on appeal, particularly if there are close evidentiary calls.

  11. Tami says:

    I guess I’m not seeing an “implied bias” that would require COL Gross to recuse himself.  While he was on Fort Hood at the time of the shooting, as was his family, there is nothing to show that any of them were victims.  This is a death penalty case, so he is not going to be the fact-finder or sentencing authority.  There is nothing to show that his rulings (even on this issue) are contrary to law or influenced by his presence at Ft. Hood during the shooting.  The evidence discussed shows he’s intentionally avoiding pretrial publicity/discussion about the case.  This isn’t a “who done it” case.  EVERYONE in the Army knows about this case–the chances of finding another experienced judge without knowledge of the publicity is slim to none.

    I think you have to consider COL Gross’ level of experience and his track record as a judge.  Anecdotally, I defended a rape case (panel members) with COL Gross presiding–my client got a fair trial.  Although COL Gross denied some of our motions, he granted others, ended a government witness’ interference w/ our ability to access the complainant, allowed thorough voir dire, kept a tight right rein on the trial counsel (even cut off his cross-exam of a witness for disobeying his ruling), and his decisions were IAW the law.  The end result was an aquittal.

    If the defense really wants a different judge, then they should be prepared to identify who they think would be appropriate, and they need to be very careful who they ask for, because they might get a judge they wouldn’t want (enough said), which would then of course raise another appellate issue.  On top of that, this case has been lingering for over 2 YEARS–if another judge was brought in at this time, that judge will need time to get familiar with the case, then how long is that going to be?  I think Hasan’s best chances of a favorable outcome are w/ keeping COL Gross on as MJ.

  12. McMurphy says:

    not sure it’s asking for the moon for a judge who didn’t have (even if only for an instant) a fear that the accused may have shot his family.

  13. Tami says:

    That may be so, but there is no evidence that he felt personally impacted, and his location was on the other side of post from where the shooting allegedly occurred.  So, there’s no actual bias, and there really isn’t enough that I’m seeing to show implied bias.  And why detail a new judge to the case when the implied bias standard hasn’t been met?

    Even if COL Gross recused himself, there would still be an appellate issue.  If Hasan gets sentenced to death, his case will be in appellate litigation for probably 2 decades with 70+ issues, one of which will be “the new judge erred in ruling X,Y, Z………ZZ” and “there are so many errors that this judge shouldn’t have presided,” and “the judge was biased in favor of the government.”

  14. Cap'n Crunch says:

    It seems to me that there are two standards in military appellate practice.  One for DP cases and one without.  DP cases appear to receive a searching review and thorough analysis.  And the CCAs and CAAF are not afraid to set aside sentencing or members cases with error in the DP context nearly as much as they are in other cases.  Death is different.
    As to the argument that this matter has already been pending for two years, my response is that, post trial, it will be around for another 20.  And the cost to redo a trial of this magnitude and complexity should be a huge disincentive to everyone involved.
    There are two issues here, if I recall correctly — both actual bias and the perception of bias.  The Colonel should recuse himself, avoid the appellate issue, and a MJ from another branch should be assigned.  If the goal is finality and you want a DP sentence to stick, everyone involved need to be committed to doing it right the first time.  Hasan may get another bite at the apple due to this issue that could easily have been avoided.

  15. stewie says:

    Absolutely right, people should stop complaining about how long DP cases take. Akbar was tried in 05 and he’s still awaiting completion of ACCA review…and the odds are it will go to CAAF, then back to ACCA for something, then back to CAAF, and if something isn’t overturned then you have Federal Habaeus assuming a President ever signs off.
    But the reality is we are no good at DP cases because we rarely do it, and our reversal rate on appeal shows it. Although for obvious reasons the likelihood of success for government in Hasan is pretty high.

  16. Tami says:

    I think people are incorrect in thinking that the judge recusing himself will eliminate an appellate issue–recusal won’t eliminate the issue, it will just create a different appellate issue.