Here’s a press release from the Fort Hood PAO:
FOR IMMEDIATE RELEASE DATE: February 2, 2012 2:21:40 PM CST Statement for Maj. Hasan Article 39A Hearing for Feb. 2FORT HOOD, Texas – Colonel Gregory Gross, the judge for the court-martial of Maj. Nidal Hasan at Fort Hood, re-set the trial date to June, 12, 2012. Previously scheduled to begin on March 5, 2012, the defense attorneys requested a delay so that they can better prepare for the trial. The judge agreed that one of the defense experts, a specialist in mitigation evidence, needs more time to complete his review of Hasan’s background. The judge also agreed that the defense team needs more time to sift through the volumes of documents related to this case. The judge considered other motions and requests from both the defense and prosecution teams in today’s hearing. The judge ruled on motions presented by the defense attorneys last October, where they requested expert assistance on the effect of pre-trial publicity and for help in selecting panel (jury) members. The judge denied the pre-trial publicity expert, but granted the panel selection expert. This expert will assist the defense attorneys in questioning the panel members before the court-martial to determine which members should be excused from sitting on the panel. The defense also filed a motion to compel the prosecution to provide them with notes from meetings and conversations between the President of the United States, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and other high-ranking officials in the aftermath of the shooting on Fort Hood on November 5, 2009. The defense attorneys have requested the notes so they can determine if any matter was discussed which may have unlawfully influenced the independent discretion of Hasan’s chain of command to prosecute him. The prosecution opposed the motion, saying that the Army officers who have taken action in this prosecution were under no influence from higher officials to do so. The judge reserved ruling on this matter until a later date.Another motion considered was the prosecution team’s request that investigation reports prepared by the U.S. Department of Defense regarding Hasan’s military career be protected from further dissemination by the defense attorneys. The defense attorneys oppose such a protective order and requested that the judge allow them time to prepare a response to the prosecution’s motion. Once the judge receives the response, he will hear arguments from both sides before ruling on the motion.The judge commented on a matter that had been discussed at the last hearing in November. The defense attorneys have requested they be allowed to talk privately with the Commanding General of Fort Hood and the Staff Judge Advocate who gives legal advice to the Commanding General, to inquire into their qualifications to proceed with this case as a capital murder trial.The prosecution asserts that such private access is unnecessary, and asked the judge for more time to prepare a response to the defense request. The judge granted them more time, and he will not rule on this matter until he considers the prosecution’s response.The judge will prepare a docketing order based on the new trial date, and he may allow both sides to conduct hearings or conferences with him on a weekly basis as the trial date grows near. He will allow both sides to submit questions to the pool of potential panel members before they are selected for this trial.Hasan is presumed innocent unless and until proven guilty in a court of law.For more information contact: Fort Hood Public Affairs Office
Media Relations
(254) 287-9993
(254) 287-0106
fax: (254) 288-2750
Fort Hood, TX 76522
query@forthoodpresscenter.com
An alert reader called our attention to this Fayetteville Observer article reporting that the convening authority has approved the death sentence in the Hennis case.
The Fort Hood PAO’s office has released the following:
FOR IMMEDIATE RELEASE
DATE: January 27, 2012 12:47:54 PM CST
Military judge approves next pre-trial hearing for Major Hasan case
FORT HOOD, Texas — At the request of prosecutors and defense counsel for Maj. Nidal M. Hasan, a half-day administrative hearing will begin at 10 a.m. Feb. 2 in the Lawrence J. Williams Judicial Center.
Both parties in the case of the United States vs. Maj. Nidal M. Hasan will go on the record in open court before Military Judge Col. Gregory Gross to litigate pending motions brought by defense. The newest motions concern discovery and a continuance. Other motions may also be filed by either side for litigation at this hearing, and the military judge may also put other matters on the record at the hearing.
The accused is presumed innocent unless and until proven guilty in a court of law.
Media who plan to cover the hearing must register here.
On the date for the event, satellite trucks should report to the Fort Hood Clarke Road Gate on West Highway 190 at 6 a.m. Truck registration ends at 6:45 a.m. All others should check in to the Fort Hood visitor’s center from 8-9 a.m. for final registration. All media should be prepared to show a U.S. driver’s license with photo and an accredited press badge with photo.
For more information contact:
The Fourth Circuit just issued this published opinion denying habeas relief on military death row inmate Timothy Hennis’s case. The court ruled that the distict court correctly applyed Councilman absention to dismiss Hennis’s habeas petition without prejudice. See Schlesinger v. Councilman, 420 U.S. 738 (1975). Former Navy military judge, and now Circuit Judge, Wynn wrote for a unanimous panel that also included Judges King and Gregory.
Judge Wynn’s opinion notes the general rule that a court-martial doesn’t have jurisdiction “to try an enlisted man for an offense committed in a prior enlistment from which he has an honorable discharge, regardless of the fact that he has subsequently reenlisted in [a military] service and was serving under such reenlistment at the time the jurisdiction of the court was asserted.” Hirshberg v. Cooke, 336 U.S. 210 (1949). The opinion also notes the Clardy Exception, which provides that “where a servicemember is discharged prior to the expiration of his [ETS] for the specific purpose of immediate reenlistment, . . . he can be tried for offenses committed in the earlier enlistment.” United States v. Clardy, 13 M.J. 308, 310 (C.M.A. 1982). And the opinion observed that “there was (and remains) an open factual dispute between the parties regarding the date on which Hennis’s previous term of enlistment was to end,” which could have the effect of placing the offenses within or outside the Clardy Exception.
The Fourth Circuit upheld the district court’s decision not to reach the merits of the Clardy Exception’s applicability due to the Councilman absention principles. 420 U.S. 738.
The Fourth Circuit emphasized that unless the Supremes resolves the matter upon a cert petition seeking review of CAAF’s decision in the case, Hennis will be able to seek habeas relief on his jurisdictional claim following the completion of direct appeal within the military justice system.
Finally, the Fourth Circuit remanded the case to the United States District Court for the Eastern District of North Carolina for correction of erroneous language in the district court’s judgment. (The error was that the judgment purported to grant the respondents’ summary judgment motion on the merits when the judge’s decision dismissed the habeas petition without prejudice and without reaching its merits.)
Congress just removed death as an authorized punishment for the offense of rape of a child in the military as of 28 June 2012. That decision has particular resonance in light of the Supreme Court’s opinion in Kennedy v. Louisiana and its aftermath.
In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court held that death isn’t a constitutionally permissible punishment for rape of a child. Then, in an episode in which CAAFlog played a role, the Supreme Court revisited its decision because it had overlooked that the National Defense Authorization Act for Fiscal Year 2006 had authorized the death penalty for rape of a child, belying the opinion’s claim that there was no federal statute allowing rape of a child to be punished by death. As a result, the Supremes modified the original Kennedy opinion while the five justices in the majority issued a statement reserving judgment on the constitutionality of death for rape of a child as a military offense: Read more »
Stars & Stripes reports: A Kadena airman will face court-martial on murder charges following the February stabbing death of a member of his squadron and could be sentenced to death, according to an Air Force 18th Wing announcement Monday.
The victim’s wife, 32-year-old Barbara Keiko Eccleston, was charged by Okinawa prosecutors in the slaying in February. She was living in Japan as a Brazilian national and faces charges under Japanese law.
(Photo credits to Stars & Stripes)
Here is a link to a Writ filed with AFCCA in this case, United States v. Cron. Cron had sought appointment of an interpreter for his Article 32, UCMJ, hearing, which was of course denied by the CA.
The petitioner requested appointment of a confidential expert consultant to provide assistance in translating statements of potential government witnesses from Portuguese to English. . . [Portuguese is a language of Brazil.]
In denying the request the [NMCCA] noted that “that the petitioner has not yet appeared before the Article 32, UCMJ, investigating officer, who may note the appellant’s concerns for the record. Additionally, if the charges are referred to a court-martial, the petitioner can move to reopen the Article 32 investigation, if she feels she has not been afforded a full and fair investigation or has been denied the effective assistance of counsel.” Such is the case here.
Seems like a standard denial (in a potential death penalty case even), of a matter that can be raised with the military judge. AFCCA cited to and was referring to Graves v. United States, NMCCA No. 200501108 (N-M. Ct. Crim. App. 26 Aug 2005). NMCCA has this as United States v. Graves on their website.
Here are links provided by Stars & Stripes.
Cross posted on CMTP/CAAFLog.
Thursday’s New York Times includes this editorial highlighting a study by the late great Professor David Baldus and his colleagues quantifying racial disparity in the military death penalty’s application.
Marisa Taylor of McClatchy Newspapers, who has spent considerable time and developed considerable expertise covering the military justice system, has written three articles about the military death penalty that were posted on McClatchy’s website today here, here, and here.
On Monday, NMCCA heard oral argument on the defense’s fourth motion for enlargement of time in United States v. Parker, a capital case. Audio of the oral argument is available here.
The United States Court of Appeals for the Fourth Circuit will hear oral argument on military death row inmate Retired Master Sergeant Timothy Hennis’s appeal of his habeas denial on 26 October. Hennis v. Hemlick, No. 10-6400.
We’ve previously noted that the Fourth Circuit plans to hear oral argument in an appeal of the denial of habeas relief on jurisdictional grounds arising from the Army capital case of United States v. Hennis. The oral argument had previously been expected to occur during the last week of September. Yesterday, the Fourth Circuit moved the likely oral argument date in Hennis v. Hemlick, No. 10-6400, to the 25-28 October 2011 argument window.
Here is a collection of reports on the MAJ Hasan arraignment.
NYT with this additional statement from “former” Hasan defense counsel John Galligan, “”Over the past year, my family and I have been vilified by many for defending Major Nidal Hasan. . . . That disparagement is misplaced. You will recall that an early president, John Adams, was subjected to similar scorn when he led the defense of British soldiers charged in the Boston Massacre. President Adams reminded critics that he performed a vital role and served a noble function.”
CBS News reports on the eagerly awaited entry of a plea, which was deferred at yesterday’s hearing. Iwonder what it will be?
Killeen Daily-Herald, for a little local flavor and noting the addition of a new TDS attorney, CPT Justin Oshana, to the defense team (which has been LTC Kris R. Poppe and MAJ Christopher E. Martin).
The Statesman reports here that civilian counsel John Galligan didn’t appear at MAJ Nidal Hasan’s arraignment today. Galligan reportedly said he had stepped down from the case temporarily but was ready to resume and active role in the case. MAJ Hasan told the military judge that he wanted to be represented by three military counsel.
A trial date was set for March 2012.
h/t NIMJ blog
UPI reports, here, that MAJ Hasan’s defense team may be denied access to copies of a government assessment of intelligence failures leading up to the Ft. Hood shootings and some of the emails between MAJ Hasan and radical Muslim cleric Anwar al-Awaki referenced in the report. The report states that trial counsel have “objected to providing the information to [Hasan's civilian defense counsel, John] Galligan but would let [Chief Circuit Judge COL Gregory] Gross review the report to determine which portions ‘should be made available for review and inspection to defense.’” Hasan’s arraignment is scheduled for today at 2:30 pm Central time.
The Killeen Daily Herald reports here that “Col. Gregory Gross, the Chief Circuit Judge at Fort Hood, announced the arraignment” of MAJ Nidal Hasan “is scheduled for 2:30 p.m. Wednesday in the Fort Hood courtroom.”
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