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
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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.  

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.)

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: 

[A]uthorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U.S. 238 (1972)  (per curiam), and Coker v. Georgia, 433 U.S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty. See id. at 595-596 (plurality opinion) (not including the military as a “jurisdiction in the United States” that authorized the death penalty for rape, and naming the Federal Government among jurisdictions that recognized the death penalty for rape prior to Furman, but citing only the nonmilitary provision). The same is true of more recent Eighth Amendment cases in the civilian context. See Enmund v. Florida, 458 U.S. 782, 789-793 (1982); Tison v. Arizona, 481 U.S. 137, 152-154 (1987). This case, too, involves the application of the Eighth Amendment to civilian law; and so we need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases (a matter not presented here for our decision). Cf. Loving v. United States, 517 U.S. 748, 755 (1996).

That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional. The laws of the separate States, which have responsibility for the administration of the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context. The more relevant federal benchmark is federal criminal law that applies to civilians, and that law does not permit the death penalty for child rape. Until the petition for rehearing, none of the briefs or submissions filed by the parties or the amici in this case cited or discussed the UCMJ provisions.

129 S.Ct. 1, 2-3 (2008) (statement of Kennedy, J., with whom Stevens, Souter, Ginsburg, Beyer, JJ., join, respecting denial of rehearing). .

Article 18 of the UCMJ provides a general court-martial with jurisdiction to adjudge “the penalty of death when specifically authorized by this chapter.”  The “rape of a child” UCMJ provision that Congress adopted in 2006, along with an interim authorization for the death penalty, was Article 120(b).  The National Defense Authorization Act for Fiscal Year 2012 “repealed” Article 120(b).   NDAA for FY 2012, § 541(a)(2).  And it enacted a new, non-capital child rape article:  Article 120b, which provides that “[a]ny person subject to this chapter who . . . is guilty of rape of a child . . . shall be punished as a court-martial may direct.”  Death is authorized by neither the new Article 120b nor a non-codified portion of the bill, as was the case with the 2006 Article 120 amendments.  See Pub. L. No. 109-163, § 552(b)(1), 119 Stat. 3257, 3263. 

Despite Congress’s use of the word “repealed,” it isn’t quite accurate to state that Congress repealed the death penalty as an authorized punishment for rape of a child.  To the extent that rape of a child as defined by Article 120(b) of the 2006 version of Article 120 was punishable by death last week (an issue discussed below), even after 28 June 2012, death will remain an authorized punishment for Article 120(b) violations committed between 1 October 2007 and 27 June 2011.  Nevertheless, it is still significant that Congress would choose not to authorize the death penalty for violations of the new Article 120b in light of a majority of Supreme Court justices’ observation in the statement respecting denial of rehearing in Kennedy that “we need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases.”  Kennedy, 129 S. Ct. at 2.  In his statement respecting denial of rehearing in Kennedy, Justice Scalia (joined by Chief Justice Roberts) contended that the 2006 statute’s authorization of death for rape of a child under Article 120(b) “utterly destroys the majority’s claim to be discerning a national consensus and not just giving effect to the majority’s own preference. As noted in the letter from Members of Congress, the bill providing the death penalty for child rape passed the Senate 95-0; it passed the House 374-41, with the votes of a majority of each State’s delegation; and was signed by the President.” Id. at 3.  Of course, the defense authorization acts for both FY 2006 and FY 2012 dealt with a large number of issues.  It is questionable whether most Members of Congress and/or the President even knew of their death penalty provisions.  Indeed, President Obama’s act of signing the FY 21012 act into law is particularly interesting in light of his criticisms of the Supreme Court for the original Kennedy decision.  President Obama is pro-death penalty, having written in his 2006 book The Audacity of Hope:  “I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.”  Barack Obama, The Audacity of Hope 58 (2006).  After the Supreme Court announced its original Kennedy opinion, then-Senator and Presidential Candidate Barack Obama told reporters:

I disagree with the decision; I have said repeatedly that I think the death penalty should be applied in very narrow circumstance for the most egregious of crimes.  I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision under narrow limited well defined circumstance the death penalty is at least potentially applicable.

While death is clearly not an authorized punishment for a violation of Article 120b, it’s a closer call whether death remains an authorized punishment for violations of Article 120(a), though I believe the better argument is that it is not.

 Let’s review the bidding.  Before the 2006 version of Article 120 took effect for offenses on or after 1 October 2007, Article 120 authorized death as a penalty for rape.  The 1 October 2007 removed that authorization from the UCMJ itself.  The five justices in the Kennedy majority noted that the absence of language in the 2006 version of Article 120 permitting the death penalty calls into question whether a court-martial could adjudge such a sentence in light of Article 18′s provision that a general court-martial has jurisdiction to impose a death sentence only “when specifically authorized by this chapter”  See Kennedy, 129 S. Ct. at 2 (statement of Kennedy, J., with whom Stevens, Souter, Ginsburg, Beyer, JJ., join, respecting denial of rehearing).  Instead of authorizing death in a provision that would become part of chapter 47 of title 10 of the United States Code, the 2006 authorization act provided:

(b) INTERIM MAXIMUM PUNISHMENTS.—Until the President otherwise provides pursuant to section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), the punishment which a court-martial may direct for an offense under section 920 of such title (article 120 of the Uniform Code of Military Justice), as amended by subsection (a), may not exceed the following limits:

(1) SUBSECTIONS (a) AND (b).—For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.

a) Rape- Any person subject to this chapter who commits a sexual act upon another person by–

(1) using unlawful force against that other person;

(2) using force causing or likely to cause death or grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;

(4) first rendering that other person unconscious; or

(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.

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.

• Kadena staff sergeant charged in stabbing death of fellow airman
• Wife charged with murder in Kadena airman’s death
• Woman to stand trial in stabbing death of Kadena airman
• Knives believed used in slaying of Kadena airman found in river.  (It looks like they may have gotten to the knives from a statement Cron made to a co-detainee at the Camp Hansen Brig.  Cron has been in PTC since 13 February 2011.
• Memorial service set for airman found dead on Okinawa
• Police: Death of Kadena airman being treated as homicide
• Kadena airman found dead in off-base apartment

Cross posted on CMTP/CAAFLog.

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).

A trial date was set for March 2012.

h/t NIMJ blog

h/t NIMJ blog

Under the current military death penalty system, which President Reagan promulgated in January 1984, there have been 52 known capital courts-martial resulting in 16 adjudged death sentences, for a 30.8% death sentencing rate.  (Convening authorities commuted two of the adjudged death sentences and appellate courts reversed eight of the approved death sentences.)

Here’s a breakdown by branch:

USAF:  11 capital courts-martial; 2 adjudged death sentences  (18% capital sentencing rate)

U.S. Army:  21 capital courts-martial; 7 adjudged death sentences (33% capital sentencing rate)

USCG:  0 capital courts-martial; 0 adjudged death sentences

USMC:  14 capital courts-martial; 7 adjudged death sentences (50% capital sentencing rate)

USN:  6 capital courts-martial; 0 adjudged death sentences (0% capital sentencing rate)

Historically, about 25% of the military death penalty caess tried in the current system have resulted in a non-unanimous finding of guilty to premeditated murder or felony murder, thereby eliminating death as an authorized sentence.

[Correction:  The original post misstated the percentage of Army cases resulting in a death sentence when I accidentally repeated one of the raw numbers in lieu of the percentage.  Gordon Smith caught the error.  Thanks!]

In his first appearance as a key witness for Army prosecutors, Pvt. Jeremy Morlock testified Wednesday that he and another soldier, Pfc. Andrew Holmes, repeatedly reviewed a plot to murder an unarmed Afghan farmer before carrying out the crime in January of 2010

The Bozicevich trial is apparently tainted by the USACIL mess. McClatchy, here, continues its full field press ride on USACIL. [with updated link]  They report that:

Work by the military’s premier crime lab is being questioned again–this time by the presiding judge in a double murder case. In the latest example of troubled testimony by the lab’s analysts, a judge overseeing the trial of Army Sgt. Joseph Bozicevich told jurors to disregard testimony from a fingerprint analyst.

H/t Defense News Early Bird

The military judge instructed on the LIOs of unpremeditated murder, voluntary manslaughter, and involuntary manslaughter.

The member were instructed concerning self-defense and partial mental responsibility.

For the case to proceed to the sentencing stage with the death penalty still authorized, the members must return a unanimous finding of guilty to at least one of the premeditated murder specs.  If at least one member votes either not guilty or for an LIO on each of those specs, a death penalty will no longer be authorized even if the members return a finding of guilty to at least one of the premeditated murder specs.  In that case, life would be the mandatory minimum and life without eligibility for parole would be the maximum.  If the members were to convict of a lesser form of homicide, there would be no mandatory minimum.

The LA Times reports that an Army court-martial will hear a plea on an Army soldier accused of killing a Taliban prisoner.  Prior coverage here.

An Army private accused of killing a Taliban prisoner last year in Afghanistan has agreed to plead guilty, according to his attorney, even though several military psychiatrists concluded he was suffering severe mental illness at the time.

Pfc. David W. Lawrence is expected to receive a “substantially” reduced sentence for the killing of Mullah Mohebullah, a senior Taliban commander who was shot in the face last October while being guarded by Lawrence at a U.S. detention facility in Kandahar province, said James Culp, the defendant’s lawyer.

Lawrence had been charged with premeditated murder in military court. The plea deal will spare Lawrence from a possible life sentence without parole, the minimum punishment he faced if convicted on the charge under military law.

It will also shield the Army from the controversy over locking up a 20-year-old soldier for the rest of his life after its own doctors diagnosed him with schizophrenia and post-traumatic stress syndrome.

The killing sparked tensions between the U.S. and Afghan President Hamid Karzai, who described it as an example of coalition forces’ frequent use of excessive force. Karzai threatened to hold his own investigation. But the case also raised questions about whether the Army was being vigilant enough in screening troops for mental illness, especially in combat units.

The Midshipman rape case we previously reported on here has been referred to a general court-martial–I think that’s what they are saying–according to the Annapolis Capitol.  More later when I find out what exactly that report means.

Here is a full report on SGT Bozicevich’s testimony in his capital trial.  Appears testimony for the defense will continue today.

Sgt. Joseph Bozicevich . . . wept as he testified Tuesday at his court-martial at Fort Stewart. He said Staff Sgt. Darris Dawson and Sgt. Wesley Durbin pointed guns at his head after Bozicevich refused to sign written critiques that could have cost him his rank.

Defense attorney Charles Gittins told the military jury that a psychiatrist will testify Bozicevich suffers from delusions. But he says Bozicevich truly believed his life was in peril.

Prosecutors say the 41-year-old Bozicevich killed both soldiers in anger in September 2008 after they critiqued him for poor performance.

More updates later.

h/t NIMJ blog