The Army Court of Criminal Appeals today affirmed a military judge’s order that MAJ Nidal Hasan can be forcibly shaved before appearing in a military courtroom.  Here is the en banc, but unpublished, opinion of the court in Hasan v. United States et al, Docket Nos. Army Misc 20120876 and 20120877 (A. Ct. Crim. App. Oct. 18, 2012):

In conclusion, we hold that petitioner is not entitled to extraordinary relief in the nature of a writ of prohibition. The military judge did not commit clear error in determining petitioner’s desire to appear unshaven in court was not based on a sincerely held religious belief at this time. Further, even if petitioner had succeeded in demonstrating his wearing a beard in court was based on his sincere religious beliefs, compelling interests justify the military judge’s order and no lesser restrictive means are available to accomplish these interests. Accordingly, the Petition for Extraordinary Relief in the Nature of a Writ of Prohibition and the Petition for Extraordinary Relief in the Nature of a Writ of Mandamus are DENIED

Four judges concurred in the opinion of Senior Judge Yob (Cook, Gallagher, Haight, and Martin), three judges took no part in the decision (Ayres, Aldykiewicz, and Kraus) and two judges dissented (Kern and Burton). 

The dissent would have actually disqualified the military judge for wading into this mess, writing:

In the military justice system, the military judge wears a uniform and holds authority as a leader as well as a judge. He must remain keenly aware of not only the authorities he holds, but how orders executing those authorities are viewed and options available to him, always keeping in mind perceptions regarding his impartiality. The military judge utilized his contempt authority, which was a proper method to try to compel petitioner to comply with uniform requirements. When those attempts failed, he not only disregarded an avenue customarily used in enforcing uniform requirements-utilizing the chain of command to enforce compliance with uniform standards-but he also issued his order for the  forcible shaving at the behest of the government. Like removal, such an invasive order by the military judge should only be utilized if there is a showing of material interference with the conduct of the proceedings. . . .

Without compelling the government to act, the military judge’s decision to order the forced shaving at the government’s request was inappropriate as it compromised his impartiality. As such, I would grant petitioner’s writ of prohibition, invalidating the military judge’s order, and also disqualify the military judge from further participation in the proceedings because he took an action that reasonably put into question his impartiality.

[Sorry for earlier versions, technical difficulties]

H/t KAG

23 Responses to “ACCA to Military Judge – Shave and Haircut Will Not Cost Hasan Two Bits”

  1. Gene Fidell says:

    I wonder if there is a different way to look at at least part of this controversy. The opinion — why is any en banc decision unpublished? — notes (at 6) that “Army regulations mandate [that] all male soldiers be clean-shaven.” If so, then why aren’t the summary contempt proceedings and fines defective by analogy to United States v. Bratcher, 18 U.S.C.M.A. 125, 39 C.M.R. 125 (1969)? Never mind Goldman v. Weinberger and RFRA; where the circumstances constitute an orders offense, does the art. 92 preempt the field and preclude use of the judge’s contempt power? Isn’t this what the antepenultimate paragraph from the Discussion to R.C.M. 809(a) suggests? Cf. MCM para. 60.(5)(a) (art. 134 preemption doctrine).

    “The military judge may issue orders when appropriate to ensure the orderly progress of the trial. Violation of such orders is not punishable under Article 48, but may be prosecuted as a violation of Article 90 or 92.  See also  Article 98.”

    If the case goes to the Court of Appeals, as I imagine it will, perhaps this analytical approach could dramatically simplify the contempt aspect. If anyone cares enough in this capital case, they can add disobedience charges or impose nonjudicial punishment for the orders violation.

    That would leave the correctness of the judge’s order that Maj Hasan be shaved against his will. On that score, Goldman and RFRA might indeed come into play, but I still wonder if anyone has found a case in which, other than for purposes of identification, a federal district judge or state trial judge has ordered involuntary shaving by custodial personnel. If this point is not addressed in the briefs, I wouldn’t be surprised if there were some questions from the bench about it.

    I’m so sorry not to be teaching military justice this semester. Can’t wait for the spring semester.

  2. Michael A says:

    I don’t see how Article 92 could preempt the field if Article 48(a)(3) authorizes a judge to punish for contempt the willful disobedience of court orders.  I believe that portion of the discussion section pre-dates the amendments to Article 48.  Questionable whether that portion of the discussion accurately represents the law.

    Re: civilian analogies, I’m having trouble envisioning a situation, other than identification, where a federal or state judge would have to order the involuntary shaving of a civilian accused.  I’m wondering why that would ever be required other than ensure witnesses can identify the accused.  Plus, if a civilian accused were in pretrial confinement, I imagine he/she would be shaved pursuant to civilian confinement SOP (if there is one) to protect the security of correctional officers.

  3. Eugene R. Fidell says:

    The problem is, what if the art. 48(a)(3) order simply restates a requirement prescribed by a lawful general order? That sure looks like a Bratcher issue. Or a first cousin. Why deny the accused in such a case the full panoply of trial rights?

  4. teddy_r says:

    I’m going to go ahead and state the obvious here and say that MAJ Hasan, bless his heart, seems like the kind of fellow that might turn down non-judicial punishment.  I can’t put my finger on it, but something about the cut of his jib tells me he is something of a non-conformist. 
     

  5. Eugene R. Fidell says:

     Touché, Teddy.

  6. Bill C says:

    I will say that I think the dissent is partly right, in the sense of why shouldn’t the onus of this be on the government?  MJ:  TC, you make sure that the next time he comes in here, he is clean shaven.  Doesn’t that put the emphasis back where it belongs?

  7. Eugene R. Fidell says:

    Can you imagine a federal district judge saying that to an Assistant United States Attorney, Bill?

  8. westpointquaker says:

    Not sure the Army CCA has jurisdiction to hear the matter at this interlocutory stage.  The CCA cites the All Writs Act (which doesn’t give it jurisdiction) and then says, “Under the circumstances presented, it is appropriate for this court to consider whether a writ of prohibition should issue to limit the military judge’s authority to order the government to forcibly shave petitioner prior to his appearing at court-martial hearings.”  Just because the CCA thinks it is “appropriate for this court to consider,” does not give it jurisdiction under Art 62 or Art 66.   

  9. Paul McConnell says:

    I agree with the analytical framework articulated by Gene.  That said, and more to the point at the practical level; I humbly suggest that the MJ would have been better served by not allowing the accused to drag him into this fight.  If somebody chooses to break the law then they should be punished for that, but there is no reason to test the limits of contempt power and embolden the accussed in his chosen game.  Essentially this is giving the accused EXACTLY what he wanted =publicity and the satisfaction of knowing that he is frustrating due process.  IMHO, the better course of action would be to proceed with the trial and instruct the members that the defendant has had the opportunity to shave and be in uniform, but has voluntarily chosen to disobey the uniform regulations.  This issue will be dealt with in separate proceedings and should not be a factor in your deliberations.  The defendant can live with the consequences of his decsion for the remainder of his life, which he appears to be trying to shorten.  
        I do not believe (i have no authority) that contempt powers extend to forcibly shaving someone.  I am certain that a Commander does not have that authority and I suggest this should have been handled in an analogous manner.  Some would say it is too late as the MJ is in too deep.  Maybe so, pride is a powerful force in us all.  That said, I suggest it is never too late to take the high road and if so; it will end giving this accused exactly what he wants.  Move on with the trial and send his face and his fate to the Members.

    Pretty long first post – sorry.  I would have posted earlier, but i kept getting the span protection math equations wrong.    

  10. Bill C says:

    Gene: No, but I don’t think that is apples to apples.  The U.S. Attorney is not required to make sure the accused shows up in court in the proper uniform, or shows up at all. In a system where the TC is required to do everything from notify the panel to make sure the judge’s water is at the right temperature (don’t laugh, I was excoriated for that years ago) and where the accused has grooming requirements uknown to the civilian world, I don’t see a problem with the MJ telling the TC to “get ‘er done.”  They forcibly shave people at the DB who refuse to cooperate, so why can’t the TC tell the command to do it here?

  11. Gene Fidell says:

    Bill, you’ve very capably stated the government’s side. I see this issue in light of the post-1968 trajectory of military justice: how serious are we about military judges being like other judges? A military judge should be–is?–like a federal district judge: “the governor of the trial,” to be sure, but not a Master-at-Arms who happens to wear a black robe and concerns himself/herself with things like the accused’s facial hair. (You could tease me by asking, “what if the bailiff, the court reporter, or the president or a member of the court-martial were to show up unshaven?” I see that as well within the judge’s sphere, in contrast to whether the accused elects to show up looking like he/she slept in a ditch.)

  12. Bill C says:

    Ha! I haven’t been accused of stating the government’s side in a long time. Don’t get me wrong.  As I have stated previously, if I were the MJ (yeah, like that is going to happen) I would tell MAJ Hasan “You want to wear a beard, fine, but I will instruct the panel accordingly.”  I would then, of course, allow the government to show the panel pictures of him unshaven so there are no identification issues. That would be how I would handle it.  My point is merely that instead of Judge Gross doing what he did in this case, and if he isn’t going to take my advice, I think it is permissible to put the burden on the TC. 

  13. Joseph Wilkinson says:

    Bratcher is analogous to the broader doctrine I’ve seen in civilian court.  A court can’t impose an injunction to “obey the law” – so that all your future trials for breaking the law are replaced by contempt hearings for disobeying the order.  Likewise, a commander can’t just order you generally to “perform your duties as a Soldier” or “obey the UCMJ” and so convert every dereliction or FTR into a disobedience charge (hence Bratcher).  But here we’re talking about something specifically related to the Soldier’s behavior in the courtroom, where the judge himself can see it…

    I mean, technically, just about every breach of decorum in a courtroom is forbidden by some part of the UCMJ.  Insulting the judge is disrespecting a superior officer; should we say the judge can’t exercise his contempt powers if the (military) lawyers insult him, make obscene gestures, and tell the panel he’s an idiot and they should all ignore him, but instead he has to take it and hope their command will punish them?  That would give military judges the narrowest contempt powers I know.

  14. Anon says:

    my two cents is ACCA, with that dissent, tee-balled these issues for CAAF. Neither COL Gross nor ACCA wants these issues to rear their head on direct appeal a decade from now.  

  15. Eugene R. Fidell says:

    Having slept on it, I now think the parenthetical in my last comment is incorrect. The sanction for an unshaven bailiff or court reporter is not contempt of court but being relieved from duty with the court. The MJ could also cause such a person to be put on report with his CO for violating the AR on shaving. Whether an MJ could excuse a member or president who neglected or refused to shave is another matter. What do readers think?

  16. Bill C says:

    The same judge who yelled at me because his water was tepid once sent a letter to the base commander because a panel member showed up late for court.  I think (with no research) an MJ could sua sponte excuse a member who refused to comply with grooming standards.

  17. Eugene R. Fidell says:

    Ah, judges! I remember one time during a trial in district court, struggling to concentrate on the other side’s examination of a witness, I sensed that the courtroom deputy U.S. marshal was looming over me, whispering something. It turns out he was informing me that Judge Richey wanted me not to cross my legs while seated at the counsel table. 

    You couldn’t make this stuff up, Bill.

  18. stewie says:

    practically speaking, what’s the harm in letting him show up with the beard?
    This is not going to set some sort of precedent for Soldiers showing up in full beard, and the only remaining damage is to the accused, who clearly is prepared to assume that risk.
    So long as the MJ clearly warns the accused of the potential ramifications in front of the panel in flouting regulations, it isn’t so disruptive that you have to create all that’s now been created.

    On the other hand, one benefit for the government is that this stuff is getting litigated now, and thus is off the table more or less for appeal.

  19. Joseph Wilkinson says:

    Well, speculating idly, if he shows up with the beard this might happen:  Accused shows up with a beard.  Defense starts to voir dire the panel members, all Army officers who outrank the O-4.  Defense asks them how important they think grooming is, what’s their opinion of an officer who wears a beard contrary to Army regs, etc. etc., and based on their answers challenges them all for cause – “They’re walking in with a bias against my client.”  Government then says, “Your client invited this prejudice by growing the beard.”  Defense then says, “That’s his religion!  The government just admitted my client’s religion invites prejudice in the Army!  The whole Army is prejudiced against my client’s religion!  He can’t be forced to give up his religion to avoid prejudice!” – and moves to dismiss.  You still get a litigation circus.   

  20. Old former JA says:

    I took a lot of heat in my day as an MJ who leaned a little too far forward in the foxhole, but I am confident I would have followed Paul’s or Bill’s approach: issue the order, let the accused violate if he wishes, turn it over to the commander.

    But unnecessarily pulling the tail on this cat has raised serious Sixth Amendment issues, logistical challenges which will disrupt this trial, and according to the ACCA dissent, recusal issues.

    This may be judicial cowardice and less than what the law allows, but it seems the sensible course.

    And then there is confidence in the military justice system that this much energy and delay in the trial is spent on whether the MJ can order a paraplegic facing the DP to shave.
     

  21. stewie says:

    Government gets to go first in voir dire, and I’d expect they’d be able to:

    a. address this in a way to mitigate your hypo
    b. clean it up on individual voir dire

    The accused has a religious belief that he cannot shave, would all of you agree not to hold that against him and decide this case solely on the merits?

  22. Joseph Wilkinson says:

    Might work.  Probably would.  But decisively?  In U.S. v. Brice – the UCI case where the members had to attend the USMC Commandant’s lecture on drugs in the middle of a drug trial – the MJ made sure to instruct everyone not to be influenced by it, and did a voir dire the next day where everyone made the usual pious noises “Oh, no, we’re not being influenced.”  CMA overturned anyway.  After the members said “Yes, we’re all fair, and will give him a fair trial” – some open-ended questioning by the defense (“In general, what do you think of a private who wont’ shave?  How about an NCO?  A company grade officer?  A field grade officer?  What does it say about his character if he doesn’t obey the regs..?” etc. etc.) could at least bring the issue back into play, and keep it alive for the lifetime of the endless appeals.

  23. Gene Fidell says:

    Thanks to everyone who has commented. It is amazing, isn’t it, that things could get so wrapped around the propeller in a case of this gravity? If I were in a position of authority I would not rest until I found a way to get rid of this issue and move on to matters of greater substance. Consider this perspective: do victims and loved ones or, for that matter, mere observers of the passing scene care if Maj Hasan appears in court with a beard? Time for some leadership, methinks.