It’s posted on CAAF’s website hereHasan v. Gross, 71 M.J. 416, Nos. 13-8011/13-8012/AR (C.A.A.F. Dec. 3, 2012) (per curiam) (CAAFlog case page) (link to slip op.).  Finding that a reasonable person would doubt the military judge’s impartiality, CAAF unanimously ordered the military judge’s removal from the case due to the appearance of bias.  As a result, CAAF vacated Judge Gross’s order to forcibly shave MAJ Hasan, as well as the six contempt citations.

CAAF explains that “the command, and not the military judge, has the primary responsibility for the enforcement of grooming standards.  . . . A military judge’s contempt authority is directed toward control of the courtroom.  Although the military judge here stated that Appellant’s beard was a ‘disruption,’ there was insufficient evidence on this record to demonstrate that Appellant’s beard materially interfered with the proceedings.”  CAAF concluded that “taken together, the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.”

CAAF ordered the “appropriate authority” to “detail a new military judge in this case.”

29 Responses to “Opinion Analysis: CAAF issues opinion in Hasan v. Gross”

  1. Zachary Spilman says:

    Beaten to the punch…

    Hot off the presses is this per curiam opinion in Hasan v. Gross, No. 13-8011/8012/AR, in which CAAF rules:

    Appellant’s writ-appeal petitions for mandamus and prohibition are hereby granted. In light of the above, the military judge is ordered removed. The appropriate authority shall detail a new military judge in this case. Further, the contempt convictions against Appellant, as well as the military judge‟s order to forcibly shave Appellant, are hereby vacated.

    Slip op. at 10 (emphasis added). The Court reasoned:

    . . . taken together, the decision to remove Appellant from the courtroom, the [six] contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.

    . . . it could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and Appellant rather than an adjudication of the serious offenses with which Appellant is charged.

    Moreover, we are cognizant that the military judge and his family were present at Fort Hood on the day of the shootings. While this fact alone is not disqualifying, when viewed in light of the factors identified above, an objective observer might reasonably question the military judge‟s impartiality. . . .

    Slip op. at 9. Then there’s this incredible passage:

    In the military justice system, where charges are necessarily brought by the commander against subordinates and where, pursuant to Article 25, UCMJ, 10 U.S.C. § 825 (2006), the convening authority is responsible for selecting the members, military judges serve as the independent check on the integrity of the court-martial process. The validity of this system depends on the impartiality of military judges in fact and in appearance. For the reasons stated below, we order the removal of the military judge based on the appearance of bias.

    Slip op. at 8.

  2. Phil Cave says:

    “in the absence of command action.”  I think some of us have said all along this was a command issue.  Also, it seems that the prosecution is hoisted on it’s own petard to some extent.  Did not the TC argue they wanted to use his beard as evidence against him, therefore ignoring their command responsibility to take command action?

  3. honest assessment says:

    I’ll set the over/under of Military Judges who 1) are qualified to replace COL Gross as Military Judge in this case and 2) want any part of this case at .5 — On the plus side, maybe we can begin focusing on that whole mass-murder thing I heard about 37 months ago.

  4. anonymous senior defense counsel with the initials nm says:

    I especially liked the part where the MJ asked the defense lawyers to clean poo.  If I had a dollar for everytime a MJ asked me to clean poo…

  5. Bill C says:

    With a new MJ his chances of acquittal and avoiding the DP go all the way up to zero.

  6. westpointquaker says:

    This “per curiam” opinion reeks of judicial cowardice.  First, no CAAF judge took credit for it.  Second, the CAAF appears to have removed the judge from the case to avoid answering the tough question – whether the military judge could order Hasan shaved under the RFRA.  Third, the CAAF fails to address how it has jurisdiction over this interlocutory matter .  And fourth, the CAAF uses a judicial ruling (finding Hasan disruptive) to find bias – something that legally should not come into play in any decision to remove a judge.  See Liteky v. US, 510 US 540 (1994) (noting that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”).  In order to find apparent bias, the CAAF needed to find something of substance from an extrajudicial source, meaning something above and beyond judicial rulings or opinions formed in presiding over the case.  That is not what we have here.  And without the military judge’s judicial ruling about Hasan being disruptive, the CAAF is left with nothing of substance to find apparent bias.  The fact that the judge and his family were on base when Hasan went on his rampage and the fact that the judge ordered the defense to clean the latrine after Hasan’s bio-hazard bag was left on the floor are really of no moment.   No reasonable person, knowing these two facts, would harbor doubts about the judge’s impartiality.  In any event, the right to the issuance of a writ here is neither clear nor indisputable.    

  7. Cap'n Crunch says:

    westpointquaker:  I would dispute your analysis.  This shaving issue is a command issue, not a judicial issue.  What should have happened is that the command should have taken action, not the judge.  And, to Bill C’s point, it is a heck of a lot easier to remove the judge now and end up sticking the needle in his arm in 15 years, than it would be to litigate this issue for years and end up with a reversal.  Similarly, and this is just a general statement that goes to DP trial work generally versus this case, but I have never understood the notion of a TC in a DP case who wants to fight every issue with the defense — better to let a lot of issues go than to allow appellate issues creep up in DP cases.

  8. John O'Connor says:

    “Colonel Pohl, please pick up the white courtesy phone.”

  9. Bill C says:

    JOC:  I laughed, but then remembered that COL Pohl was the 32 IO, so there goes that.  The field is narrow.  This case strikes me as the right result but done the wrong way.  I am not sure CAAF should have done this, but I think the government was walking in a mine field if Judge Gross stayed on the case.  Some judges Christmas plans just got changed. 

  10. Cloudesley Shovell says:

    What are the chances of a judge from another service?

  11. Charlie Gittins says:

    I agree with Cap’n Crunch . . . both the TC and the MJ were going down the road to reversal in this case.  There is a chance to get the railroad back on the tracks with a new Military Judge that may enhance the probability of no reversal, however, that remains to be seen.  Just for the record, if a MJ told me to clean up a bathroom after my paraplegic client had an alleged physical problem (whether it was mud or feces on the floor), I’d tell him to pound sand and get his own mop.  The Army has custodial personnel to perform those fuctions and any officer who submitted to such an order probably needs to find a backbone.  I hadn’t heard about that before, but that would have sent me to war with the judge. 

  12. WWJD says:

    While we are sharing stories arounf the campfire,

    I heard of an AF Judge (Bruce Smith) order a TC to pick up garbage that was left over from a picnic/function that was held during a court-martial.

  13. Phil Cave says:


    The Chief Judge of the Army then COL Henley was detailed to the CM of a certain AF JA colonel.  We, the Navy, used to use Army judges down in Panama years ago when “convenient.”

  14. Charlie Gittins says:

    They “could” detail a judge from another service, but I doubt they will.  To have a judge from another service sit on this court-martial would be a strong argument that the multiple independent service judiciaries are not necessary and could be consolidated; kind of a BRAC for the judiciary.  I won’t be holding my breath.  I think the USAF case was one that the USAF didn’t really want to do that way, but had no real choice since the JA on trial was so senior and so connected to TJAG.   

  15. Bill C says:

    It is bad enough that judges ask lawyers to be their “water boys” but if the MJ ordered me to clean up crap, I would flat out refuse.  There is no way that is a lawful order IMO. 

  16. Cloudesley Shovell says:

    Mr Gittens: Somewhat idle curiosity on my part.  I’m used to a bit more intermingling, as it is not uncommon in the sea services.  The Stirewalt case is an example from a few years back.  Navy Judge and Navy defense counsel on retrial.
    As for arguments regarding consolidation, I’m still wondering why the government appellate divisions have not long since been consolidated, esp. when it comes to cases before CAAF.  One has multiple offices, all in DC, all representing the same client.  Waste of resources and duplication of effort.  No reason why one cannot have a consolidated office with divisions for each service and a command billet that rotates amongst the services.

  17. Charlie Gittins says:

    CS:  If they consolidated all of the AG and AD divisions, the services JAs would lose a bunch of flag billets.  Rotating the flag billets for the AJAG Crim Law would never fly.  I totally agree that consolidation makes sense, but there many rice bowls that would be broken, and those rice bowls will be jelously guarded.
    Bill C:  I am with you, bro.  I’d take my chances with jury nullification. 

  18. Dwight Sullivan says:

    So westpointquaker posts a pseudonymous comment to accuse CAAF’s judges of judicial cowardice based on, inter alia, deciding Hasan through the vehicle of a per curiam opinion.  I know who the five judges who issued that opinion are; I don’t know who wespointquaker is.

    westpointquaker also says that “CAAF fails to address how it has jurisdiction over this interlocutory matter.”  Perhaps CAAF saw no need to address it since the doctrine of potential appellate jurisdiction as a basis for issuing a writ is so well-established.  See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966).  The doctrine has been blessed by the Supreme Court in a military context:  “we do not believe that there can be any doubt as to the power of the Court of Military Appeals to issue an emergency writ of habeas corpus in cases, like the present one, which may ultimately be reviewed by that court.”  Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969).  The Hasan case may ultimately go before CAAF on direct appeal; ergo, there can be no doubt that CAAF has the power to issue a writ in the case.

    westpointquaker also offers a purported fact not included in CAAF’s description of the facts.  According to westpointquaker, “the judge ordered the defense to clean the latrine after Hasan’s bio-hazard bag was left on the floor.”  According to CAAF’s opinion, “Defense counsel . . . stated that Department of Emergency Services (DES) personnel determined that the substance on the floor was in fact mud tracked in by a DES guard.”  Perhaps westpointquaker could share his/her basis for writing that MAJ Hasan’s biohazard bag was left on the head’s floor.

    Finally, westpointquaker accuses CAAF of judicial cowardice for not reaching the RFRA argument.  Personally, I’m a fan of judicial restraint.  Because of the military judge’s removal, there was no need to address that issue.  Hence CAAF didn’t.  The issue may now be resolved at the trial level without the need for further judicial intervention.  CAAF’s approach fosters such an outcome, which is preferable to CAAF making new law when it isn’t necessary.  If the issue isn’t resolved at the trial level, CAAF can always intercede later should the need arise.

  19. Dew_Process says:

    With dew respect, the MJ should have recused himself upon the first application.  Perhaps a CLE in “Recusal 101” is in order at the Judge’s school.  Am I the only one (probably old enough other than the Admiral here) to sense the irony in CAAF’s citing  Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995)?

    Nichols was the infamous Terry Nichols of the Oklahoma Bombing case, and Wayne Alley, the federal District Court Judge, was an Army JAG and Military Judge alumnus.

    The other “fact of interest” was CAAF’s setting aside all of the contempt citations – multiple inferences are of course possible, but one certainly is that the MJ’s animus towards Hasan was multifacited.  Just my 2 cents.

  20. Mike "No Man" Navarre says:

    Contrary to popular sentiment, I don’t fault the TC for this one.  What was the command going to do, refuse to follow the MJ’s order and not shave the accused?  That strikes me as worse for the system than telling the MJ we aren’t going to shave the accused and letting the MJ go it alone on the forced shaving bit.  I don’t see how the gov’t could have avoided this one, though I guess they could have rolled over at ACCA or CAAF. The MJ would have then needed to get counsel, no?  I don’t see how that helps the system. 

  21. John Harwood says:

    Once again, COL Sullivan points out the irony (or is it hypocrisy?  I can often confuse the two) of anonymous posters taking pot shots at named individuals.  I completely understand the reasoning behind deciding on a nom de plume when posting about MJ topics.  I generally believe, though, that those who post under their actual name are forced to be more thoughtful.  So Bravo! to Zach, Mike, Charlie, Phil, JO’C, Gene, Judge Mathews and the others who swing on this trapeze without a net.

  22. Cap'n Crunch says:

    Mike:  How about the TC stops the MJ, in process, and says “Sir, with all due respect, we believe that this is a command issue, and not a MJ issue, and we will take this issue up with our client.”  I don’t know, just my thoughts.

  23. anonymous senior defense counsel with the initials nm says:

    Mr. Sullivan,

    I don’t know about Westpointer, but I read that bit about the poop on faux news.  I mean false news.  I mean fox…


  24. Art Record says:

    @JohnHarwood: Did you receive the benefit of then-Maj Sullivan’s NJS presentation on irony?  It’s in my top 10 best 15 minutes of BLC! 

  25. Mike "No Man" Navarre says:

    AR–Don’t get OFL started on irony vs. sarcasm.  He’ll launch into his Alanis Morissette diatribe in under 30 seconds.

    See e.g. here.

  26. stewie says:

    You mean rain on your wedding day isn’t ironic?

  27. k fischer says:

    Come to think of it, when Daryl Hannah is hiding outside the firehouse in “Roxanne,” and Steve Martin offers her a coat, she says “No , I would like to stand out here in this bush in the freezing cold”, she later says that she was being “ironic.”  She really wasn’t.  She was being sarcastic.  Perhaps that’s why she was an astronomer and not a writer.  And why didn’t Steve Martin correct her?  He seemed to be a writer, at least as much to know what kind of paper really soaks up the ink.  

    Compare that to Good Will Hunting where Sean invites Gerry to the class reunion of ’72 where the drinks are free and offers to buy him a drink, Sean invokes the correct use of irony, but, ironically says he is being “ironical.”  Ironical isn’t even a word, is it?

  28. stewie says:
  29. Lance Clark says:

    Here is my takeaway and 2 cents:  CAAF had the opportunity to define the outer boundaries of a MJ’s contempt power and, simply put, they punted.  All this at the expense of Judge Gross’ reputation, based on the most minimal evidence of apparent bias.

    That said, I disagreed that a MJ has authority to order an Accused forcibly shaved.  Now we are left in limbo as to how CAAF would rule on that issue.  If an Accused refuses to shower, can the MJ force him to shower?  We don’t know.  If the Accused refuses to wear his uniform, can the command forcibly dress him?  We don’t know.  I would hope that the answer to those questions is “no”, but CAAF passed on a prime opportunity to provide guidance to its trial judges and the command.  

    Yes, the tactical decisions by the goverment to allow this to get this far were horrible, but I wont go into that.