CAAFlog » September 2012 Term » Hasan v. Gross

Our #2 story of the year was the court-martial of Major Hasan, the Fort Hood shooter. We ended last year with CAAF granting a petition for extraordinary relief and removing the military judge and ordering a new one be assigned. Col Tara Osburn, USA, was then assigned. Major Hasan’s court-martial was last year’s number two story of 2012.

For all the tragedy of the victims and court-room drama leading up to the trial, the trial itself was relatively uneventful. The defense rested without putting on any evidence. Major Hasan acknowledged he was the shooter at the beginning of the trial. He was convicted of 13 specifications of premeditated murder and 32 specifications of attempted murder. He was sentenced to death after less than two hours of deliberations.

The trial was most notable for Major Hasan’s decision to represent himself. After firing his lawyers, the MJ granted his request to represent himself. His counsel, who continued to be available to assist him, described his actions as a “working towards the death penalty” according to the Washington Post.

I once did extensive research, attempting to look at all Article 118(1) & 118(4) cases preferred since 1984 to identify predictors of convening authorities’ decisions to refer cases capitally and on members awarding death as a punishment. We started with the thought that perhaps there were racial trends we could identify. What we found was the unsurprising conclusion that the number one predictor of capital referrals and capital sentences in Article 118(1) cases was multiple victims. That certainly held true in Major Hasan’s case.

Of course, Major Hasan will receive automatic review from the Army Court of Criminal Appeals. As this CNN report points out, the reversal rate for death-penalty cases in the military on direct review is very high. This report cites a 82% reversal. These numbers are since 1984, when President Reagan implemented R.C.M. 1004.

One issue that lurks in the case highlights some of the paternalism that still lingers in the military-justice system. Major Hasan attempted to plead guilty, but his plea was rejected by the MJ. Article 45(b), UCMJ prohibits a guilty plea to a capital offense. In theory, this denied Major Hasan the mitigating effects of a guilty plea. Is it remotely conceivable that ACCA or CAAF will rule Article 45(b), UCMJ unconstitutional and reverse? Probably not, but if they did, it would probably make our top ten list in future years.

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).  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.”

Thanks to our alert readers for calling our attention to media reports that Colonel Gregory Gross, the military judge in the Hasan case, has orderd that MAJ Hasan be forcibly shaved.  (Killeen Daily Herald coverage here.)

Under CAAF’s previous ruling on MAJ Hasan’s petition for extraordinary relief, MAJ Hasan will “be afforded the opportunity to file a petition for extraordinary relief with the United States Army Court of Criminal Appeals prior to the execution of the order” that he be forcibly shaved.  Hasan v. Gross, __ M.J. __, No. 12-8032/AR (C.A.A.F. Aug. 27, 2012).

John Galligan’s blog reports here that CAAF has issued an order resolving Major Hasan’s petition for extraordinary relief.

CAAF’s order is available here.  It provides, in relevant part:

On consideration of the petition for extraordinary relief in the nature of a writ of prohibition to prevent the military judge from ordering the forcible shaving of Petitioner’s facial hair, and the Government’s answer, it is ordered that the petition is denied without prejudice as premature because the military judge has not issued a definitive order for Petitioner to be forcibly shaved.

Should the military judge issue an order that Petitioner be forcibly shaved, Petitioner shall be afforded the opportunity to file a petition for extraordinary relief with the United States Army Court of Criminal Appeals prior to the execution of the order.  Also, if such an order is given, the military judge shall address those issues raised in this writ proceeding that he has not yet had an opportunity to address on the recording, including, among other matters:

(1)  whether the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (2006), applies in the context of this court-martial; and

(2)  if so, what compelling interest(s), if any, are implicated in the specific court-martial context presented and why forcible shaving is the least restrictive means of furthering the compelling governmental interest(s) including, if relevant, consideration as to why an instruction to the court members, if requested by Petitioner, is not the least restrictive means in the court-martial context.  See United States v. West, 12 C.M.A. 670, 674, 31 C.M.R. 256, 260 (1962).

Hasan v. Gross, __ M.J. __, No. 12-8032/AR (C.A.A.F. Aug. 27, 2012).

CAAF just issued the following order in the caes of Major Nidal Hasan:

On consideration of the petition for extraordinary relief in the nature of a writ of prohibition to prevent the military judge from ordering the forcible shaving of Petitioner’s facial hair, and Petitioner’s motion for a stay of proceedings, it is, by the Court, this 15th day of August, 2012,

ORDERED:

That said motion for a stay of proceedings is hereby granted, pending further order of the Court.

Respondent will file an answer to said petition on or before 12:00 p.m. EDT, August 22, 2012.

Hasan v. Gross, __ M.J. __, No. 12-8032/AR (C.A.A.F. Aug. 15, 2012).