Last term, in Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page), Major Hasan – the Fort Hood shooter and one of four current residents of the military’s death row – asked CAAF to grant him a writ of mandamus ordering all of the judges of the Army CCA to recuse themselves from his case.

The asserted basis for the mass recusal was that the Deputy Judge Advocate General of the Army (DJAG), Major General Risch, who evaluates the Chief Judge of the Army CCA, had previous involvement in the case as the Fort Hood SJA. CAAF heard oral argument on the petition on March 27, 2019, and then summarily denied it six days later, on April 2, ruling:

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the [All Writs Act].

Two weeks ago Hasan filed two new writ petitions, and yesterday CAAF granted one in part, disqualifying one ACCA judge from the case:

No. 20-0009/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (recusal of judges), it is ordered that the petition is granted as to Judge Walker and denied as to Judge Brookhart without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

No. 20-0010/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (appointment of a chief judge), it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

6 Responses to “CAAF disqualifies an ACCA judge from the Hasan case”

  1. (Former) ArmyTC says:

    Judge Walker is married to the guy who was the III Corps CoJ at the time of the Hasan trial. Recusal makes sense. Judge Brookhart was defense counsel for Akbar (which was prosecuted by the same prosecutor as Hasan, now retired COL Mulligan), and was later chief of TDS. Makes sense to request his recusal, but the connection is likely too tenuous.  Does anyone have the petition itself? Should be interesting reading.

  2. Cloudesley Shovell says:

    Greetings all,
    The subject of this proceeding is guilty of murdering 13 people and tried to murder 32 more.  He confessed he was the shooter on the first day of his court-martial.  Numerous witnesses identified him as the shooter.  There is no doubt as to his guilt.  None.  It simply isn’t in dispute.
    Yet here we are, only 8 days away from the 10th anniversary of his despicable and cowardly crimes, and the military justice system is still tying itself in knots over who is married to whom. 1365 days elapsed from the Pearl Harbor attack to the surrender ceremony on the deck of the USS Missouri in Tokyo Bay, yet it took 1370 days to get this turd to trial.  Just to trial.
    Now another 6 years have elapsed.  How much longer before this case is final?  What are the odds that fresh JAG lawyer entering the service in November 2009 could retire with 20 years of service before this case is final?  What are the odds the death penalty will survive appellate review?
    Kind regards,

  3. Vulture says:

    Good question CS.  What percentage of military death row inmates are of a given heritage or religious denomination?
    Would the Supreme Court look at that as an inequity?
    Maybe if the MJ wasn’t tossed for losing his freakin mind for dirt in the hallway.  Maybe if Government hadn’t opposed a media expert.  And, on a personnel note, maybe if the the RDC had a brain between his ears (yes, his not her).   
    Conflict of interest is permeating risk in the manner that the JAG Corps operates.  The current, or recently departed III Corps COJ was SDC on Ft. Hood mere months leading up to the shooting.  Yet soldiers get choked out in the court room all the time without anyone caring until its a DP case with a pro se Accused.  
    If this whole case was tossed it wouldn’t bother me a bit.

  4. Kafka, Esq. says:

    Well said, Vulture.
    For many reasons, the military justice system is not equipped AT ALL to pursue the death penalty.  I don’t think any justice system is capable of doing it fairly, but certainly not a system staffed by relatively inexperienced prosecutors, defense counsel who’ve never done a DP case, and judges who are subject to the assignment/career-progression whims of the person who essentially is the Attorney General … to say nothing of members who work for the person who decided to make the case death-eligible to begin with.  Having represented a couple of servicemembers who were, at one time, facing death, I put myself in that same category of the woefully inadequate and incompetent.
    I don’t care if Hasan rolls away either — if the military wanted to make sure Hasan actually is executed, then the military should have turned him over to the civilians from the beginning.  And frankly, I hope it takes another 1370 years before this — or any other — accused is put to death by such a fundamentally broken system.

  5. Charlie Gittins says:

    Having tried the SGT Bozecevich DP trial, the fundamental problem is that the General assigns the members and decides whether to seek death.  So, in our case we churned through 56 members.  We literally started with a panel composed of people rated by or senior rated by the GCMCA.  We were a civilian, a Senior SC Major and a Captain with civilian prosecutorial experience.  We had assistance of a juror consultant, who was a key advisor.  We burned through members using the Colorado method and exposing those who were “killers.”  The last member that we fought over with the GOV was a female Captain.  Our jury advisor said we should try to keep her based on her religious background that she soft-peddled.  The GOV tried to remove her with no effort to challenge for cause and the female military judge was not having any of it since we raised the fact that she was the only female officer on the panel.  She voted for other than premeditated (having put on a self-defense defense)  and that was the end of the DP.  But for burning through all of the known killers to get down to the bottom of the members who were less than known to the GOV save Boz’s life.  Good job to all on the defense, but I am glad I listened to the jury consultant who pushed back hard when I considered challenging her, which the GOV was sure I was going to do.   Having three lawyers learning how to do a DP case was a challenge, but we got it done. 

  6. Vulture says:

    Having hundreds of lawyers with no one to provide them experience in DP and other cases is a challenge.
    Post often my friends.

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