Here is Monday’s Daily Journal entry noting the stay in MAJ Nidal Hasan’s case has been granted:

INTERLOCUTORY ORDERS

No. 13-8009/AR. Nidal M. HASAN, Appellant v. Gregory GROSS, Colonel, U.S. Army, Military Judge, Appellee. CCA 20120876. On consideration of Appellant’s motion to stay proceedings, it is ordered that said motion is hereby granted pending further order of the Court.

Here and here is some of the news coverage of the stay and proceedings to come.

16 Responses to “CAAF Grants Stay in Hasan Court-Martial”

  1. westpointquaker says:

    Sometimes I wonder if CAAF is a serious court.  For a stay, you need to show “irreparable harm.”  What’s the irreparable harm in a shave?  Hasan claims that he has had a vision of his death and that it would be disrespectful to his maker if he appears before him clean shaven.  Really.  I think it is entirely speculative that Hasan would ever appear before his maker in our lifetime if CAAF keeps micromanaging this court-martial. 

  2. ConLaw says:

    Quaker – the Army has granted beard waivers to other Muslims, Sikhs and Jews.  The government can’t privilege some individuals’ religious expression and then try to deny it to others under an overstated theory of necessity.

    That’s the real issue. On your much narrower question, interference with free exercise plainly meethe criteria for a stay.

     

  3. Some DC says:

    This issue can be squarely addressed in the normal course of appellate litigation. It does not rise to the level of a writ.

  4. Cheap Seats says:

    Don’t forget the disqualification of the MJ piece.  That, most certainly, could cause irreparable harm to due process if a biased MJ sits throughout the trial.  Also wastes everyone’s time if it comes back to square one.  Not saying the MJ should be disqualified, but worthy of looking at now.

  5. stewie says:

    Death is different. Makes a lot of sense to me from an appellate point of view to solve this issue now, and attempt to remove it from the long list of appellate issues inherent in death penalty punishment, and the fact that we rarely (never) have competent death-eligible defense counsel.

  6. Joseph Wilkinson says:

    If he’s made to shave, how does it create a case for post-trial appellate relief?  I can understand if he’s allowed to grow the beard, and he says the panel was prejudiced against him because of it – “my conviction was by a panel biased against my religious observance, and so my conviction is invalid.”  But how can he say his trial was unfair, or his conviction invalid, because he was forced willy-nilly to look more like a Soldier? 

  7. Some DC says:

    Cheap seats:  The standard isn’t “waist of time” it is irreparable harm.  Same with a bias MJ, similar to members challenges.  Those are routinely dealt with on appeal.  Appellate courts disfavor piecemeal litigation.  there are lots of mistakes at trial that could be “writted” but aren’t granted b/c it makes more sense to bring them up on appeal.  Here he gets shaved, goes to trial, maybe is convicted then appeals and his AOEs are assessed under the appropriate standard.  

    Stewie:  While death is different I don’t see this issue as impacting the writ.  THis is no different than if he was charged with 112(a).  He could make the same argument.  And while there may be a long list of appellate issues in a death penalty case it makes more sense to address them all at once and assess them all for impact & prejudice.  Failure to grant the defense certain experts, trial assistance, mitigation experts, psychological assistance,etc., are all issues that have, in both military and civilian litigation been dealt with on appeal.

    I pretty much think Hasan will get the death penalty.  Creating a bunch of appellate issues now is a good strategy but it is in his best interest to push those back to an appeal and drag out the appellate process as long as possible. If all his appellate issues are resolved it doesn’t make for much of an appeal. 

  8. stewie says:

    Made to shave touches on, as Cheap Seats pointed out, whether or not the MJ has acted in a way which could disqualify him. IF forced shaving is mighty fine, good to go, decide it now, and then you are done, no issue for appeal.

    IF forced shaving is wrong, then decide now whether or not the MJ should be disqualified, again, no issue for appeal.

    And you yourself identified another issue, if not forced to shave does THAT create a possible prejudice against him by the panel? Do we care?

    This is different than if he were charged with 112a. Death is different. That’s the point.

    I would argue it makes more sense to decide things correctly before trial then saying we will address them all after trial, particularly in a death penalty case. Certainly, if this were a 112a case, then we wouldn’t have all of this, but that goes back to, death is different.

    We all know Hasan will get the DP. There are few things in this world more certain. We can talk about whether or not the Defense is choosing the smart path here in bringing these issues up now, they may or may not be, but the real question I thought was whether or not CAAF should address them now.

    And I think the clear answer in a capital case is yes.

  9. Interested bystander says:

    The “irreparable harm” will be to the military justice system itself if the Army Court’s decision is allowed to stand. The idea that military judge will order a paraplegic to be held down and forcibly shaved just to show who’s in charge and to “maintain the sanctity and decorum” of the proceedings is ridiculous in the extreme. It just calls the entire military justice system into disrepute and makes us look like idiots. If the accused is violating the rules, do what we do to any soldier in that situation — give him disciplinary paperwork or add it to the charge sheet and take care of it that way. Maybe we should just reinstitute flogging while we are at it.

  10. Lieber says:

    Nah, the fact that we still charge people for adultery, consensual sodomy and having threesomes does far far more to make a laughingstock of the MJ system than the forced shaving of a defendant.  Real people (i.e. civilians) actually understand when we enforce hair and grooming requirements…what they don’t get is the religious cult/throwback to the 1950’s era stuff.

  11. Phil Stackhouse says:

    First, I’m not sure forced shaving is a good idea.  They tried to do it to John J. Rambo and we all saw how that turned out.  

    Second, why is the court even involved in this – why isn’t the command force shaving him if anyone cares or why isn’t he being excluded from the courtroom if it’s a big deal.  If you look at the pictures, this didn’t just sneak up on anyone – he’s been growing that beard for a long time.

    What is the downside of letting him have his beard in court? If the concern is that he will try to appeal the issue of beard=conviction, can the judge not make inquiry of his decision making, advise him of the possible adverse consequences of his actions – having a beard in uniform my inflame the jury – and let him move forward.

  12. stewie says:

    Maybe, but what if part of his appeal is that he was mentally ill? I concur this was an issue that could have been handled by the unit without the MJ at all, but once he stepped in, for ill or for good, it had to go to the courts.

    Also concur that the greater stain to our system are the victimless moral/sex crimes that really do nothing for us anymore except perhaps make some folks feel better about our collective moral purity.

  13. Charlie Gittins says:

    A little over a year after completing a DP case in which we avoided the DP at the findings stage, I understand the concern of defense counsel representing a capital defendant — there are no little or insignificant issues from inside the accused’s camp.  During the course of the US v. Bozicevich trial, we DCs saw no issue too small to pursue on behalf of the client, because the ultimate penalty awaited our client if he was death eligible by the time sentencing came around.  To that end, we pursued an ex writ on our client’s behalf, which was denied, and a writ appeal, which also was denied, on the issue of death penalty qualified counsel.  We didn’t get any love, but if our guy had faced the DP at sentencing, we had crated a pretty strong record that we should have been supplied with death penalty experienced counsel and but for the error he might have avoided the DP.  As it turned out, the strategy to put on a defense worked and we founde at least one vote for something other than premeditated murder. 

    As for prosecuting adultery and other consensual sex conduct, I have never understood it.  Sport-screwing is well known throughout the services — the “two tacan rule” being among the more famous examples, and the holier than thou feigned morality has always appeared to me like the scene in Casablanca where the German agent expresses feigned surprise to learn that there is gambling in Rick’s.  Really?  We now tolerate homosexual conduct, it’s about time to get over heterosexual sex, even if it is adultery or consensual sodomy.  Who cares who you are sleeping with or what acts you perform with you consenting partner? . . .  time to get over it.     

  14. Joseph Wilkinson says:

    If the concern is that he will try to appeal the issue of beard=conviction, can the judge not make inquiry of his decision making, advise him of the possible adverse consequences of his actions – having a beard in uniform may inflame the jury – and let him move forward.

    Sure he can.  At which point he says, “My religion requires me to grow this beard.  You are saying I have to choose between observing my religion and getting a fair trial.  You are forcing me to be tried by an insitution that is prejudiced against my religious observance.” — and the issue does not disappear, even without the mental responsibility angle.  

  15. Lieber says:

    off-topic, but an interesting MJ question:

    I didn’t realize that Bales has apparently turned down a 706 board because his counsel would not be present.  I can imagine all sorts of appellate issues (or even a collateral attack) rising out of that.

  16. Gene Fidell says:

    Raj Kumar Singh, Male Prisoner Hair Law: Case Synopseshttp://www.choisser.com/longhair/rajsing2.html.