Lawyers involved in the court-martial of the man accused of killing 13 people at Fort Hood, Texas, will shoulder incredible pressure from inside and outside the military to get it right, experts on military law say.
And they’ll have to do it while trying to find an unbiased jury and managing a complex and high-profile capital trial at the same time overlapping congressional investigations may be under way. Even under normal circumstances, a court-martial is a “real drain” on the military and needs to be handled expeditiously, said John O’Connor, a partner at Washington’s Steptoe & Johnson and a former U.S. Marine Corps prosecutor. For the lawyers, moving fast will also have a practical benefit: The military “transfers people all of the time, and if you wait a long time until trial, witnesses may be far flung,” O’Connor said.
The first moves began last week when Maj. Nidal Hasan was formally charged with 13 counts of premeditated murder — the first step in the court-martial process. He faces a maximum penalty of death and a mandatory minimum sentence of life in prison with parole eligibility.
With the Hasan court-martial, the nation will see, for the most part, “a very strong military justice system,” said Stephen Saltzburg of George Washington University Law School, one not too different from the its civilian counterpart. The rules of evidence are very similar; the prosecution bears the same burden of proof; the same rights to confrontation and cross-examination apply; there are bifurcated proceedings for guilt and sentencing; more liberal discovery rules that favor the defense; and an open pretrial hearing, similar to the closed grand jury, in which both defense and prosecution participate.
Strong, fair and with some “warts,” agreed Eugene Fidell of Yale Law School, president of the National Institute of Military Justice. Fidell and others identified long-standing criticisms of the system that include:
• Commanding officers, known as the “convening authority,” hand pick members — the equivalent of the jury —- which gives the commander, who also decides the charges to bring, influence that a civilian prosecutor does not have.
• Although the military has had a small number of death penalty prosecutions, there is an 80 percent reversal rate: eight of 10 cases that have completed direct appellate review.
• Personnel turbulence: the regular transfer of military lawyers, which prevents those lawyers and judges from gaining experience and skills, particularly in capital cases.
• A substantial disparity in resources between the prosecution and the defense
“It will be perfectly clear this is an opportunity to put the system on display, and I would expect the lawyers assigned to Hasan’s case to be the best the service can offer,” Fidell said. Hasan, who is allowed to have civilian and military counsel, already has both: Maj. Christopher Martin and retired Col. John Galligan of Belton.
But “death is different” and brings “a whole other level of complexity” to the court-martial of any service member, said Charles Gittins of the Law Offices of Charles W. Gittins in Middletown, Va., who is a former U.S. Marine Corps deputy staff judge advocate and senior defense counsel. Gittins, who is currently defending an Army death penalty case at Fort Stewart, Ga., and other former military lawyers voiced no doubt that the death penalty will be sought for Hasan because of the apparent premeditation and number of victims. And, they said, a defense effort to make a deal — plead guilty to a lesser charge in return for life in prison without parole — would be highly unlikely to be accepted. “If you had one victim, you might be able to convince them to accept life without parole,” Gittins said. “But so many people are involved here. I think a convening authority [the commanding officer] would be self-immolating if he agreed to do that.”
The Hasan case will pose problems for military lawyers and not just because of the death penalty and the number of victims, but also the intense publicity, said Gittins and other military lawyers and scholars. Gittins has had first-hand experience with the latter. In 1998, he won acquittal on 17 of 18 sexual misconduct-related charges against the Army’s top enlisted solider — Sgt. Maj. of the Army Gene McKinney — perhaps the last court-martial to capture the nation’s attention.
“For the government, the biggest challenge will be venue,” predicted Victor Hansen of New England School of Law, who defended Army Sgt. Asan Akbar, sentenced to death in 2005 for killing two officers in a grenade and rifle assault in Kuwait. “There will be a desire by the Fort Hood commander to try it there. But I expect cooler heads will prevail.”
As the convening authority, he said, the commanding officer can determine what charges to pursue, whether to accept pretrial agreements, grant immunity to witnesses, disapprove findings and grant clemency. “In this case, it would be the Fort Hood commander [Lt. Gen. Robert Cone], and that’s the very man up in front of cameras trying to deal with the tragedy,” Hansen said. “It would be enormously challenging for the prosecution to present to a judge that the decision to present this case here was not influenced by emotions.”
High-profile cases are normally moved, he added. A logical venue for the Hasan case, Hansen said, could be Fort Bragg, N.C., which currently has three to four pending capital cases. But there are good arguments for keeping it local or closer: The victims and witnesses are at Fort Hood; the crime affected the community and the community wants to resolve it. “I’m not sure witnesses ought to bear the burden of traveling to testify, particularly if they’re wounded,” said George Washington’s Saltzburg, general counsel to the National Institute of Justice.
And from the defense perspective, keeping the case local raises concerns about biased jurors (members). Court-martial members are generally officers and senior enlisted soldiers. Even if members are brought from outside of Fort Hood, the massive publicity surrounding the shootings raises fair-trial concerns for the defense.
The prosecution also faces a challenge in the overall management of the case, said former military lawyers: How does it control the flow of information during its investigation and complete a thorough investigation when the media is constantly interviewing witnesses? What if the House or Senate opens threatened investigations into the FBI’s handling of e-mails between Hasan and radical Islamic iman Anwar al Awlaki?
And the e-mails themselves may trigger complications: They may be sought by prosecutors or the defense; found to be classified; and create satellite litigation over their use.
For the defense, the major challenge will be mitigation — finding some persuasive reason to escape the death penalty. Military law scholars and lawyers said insanity is a very difficult defense in the military and almost demands that the defendant be verifiably delusional. Hasan, they noted, is highly educated, has passed several levels of review by the military showing he can make and accomplish plans, and the shootings reflected a fair amount of premeditation.
The defense, they said, also must be alert to so-called unlawful command influence — anyone in the chain of command trying to influence the trial outcome. “It could be a platoon commander talking to his privates about what they should say at trial. It’s pernicious and difficult to unearth,” Gittins said.
Defense lawyers also faces the challenge of defending Hasan simply because he is Muslim — which lawyers agreed does not make him the most sympathetic post-Sept. 11 defendant.
Perhaps the greatest challenge for the defense and the military justice system will be to ensure that Hasan’s case does not suffer the shortcomings that have plagued death penalty cases in the military since the modern military death penalty took effect in 1984. “One of the things we see in almost every death penalty case is that everyone involved — defense, prosecutor, judge, up to the convening authority — is doing the case for the first time,” said Marine Corps Reserve JAG Dwight Sullivan, currently civilian appellate defense counsel for the Air Force. “It’s on-the-job training.” The 80 percent reversal rate, he said, results primarily from lawyers’ lack of experience in death penalty cases.
Gittins agreed, saying, “Just look at military case law on the death penalty. The cases go up and down, up and down, error after error.” Typically, no one in the military does one job for more than three years, Sullivan said. That fact, combined with only 49 capital prosecutions since 1984 (only four in the past decade), he said, permits few opportunities for gaining experience.
These cases also suffer from a substantial disparity between resources available to the government and the defense, he said, and substantial impediments to the defense’s access to resources.
In the military, Sullivan said, only the government has subpoena power and the defense must make its requests to the government, for example, for witness subpoenas. If the request is denied, the defense goes to the court-martial judge. “There is a unilateral disclosure requirement that runs only to the defense,” he said. “You have to lay out the basis for your request and there’s no right to an ex parte proceeding.”
Sullivan’s assessment was echoed by other former military lawyers and is supported by the recently-released Cox Commission report on the military justice system. “From the standpoint of military justice in the American mind, I think Hasan is a major case with a whole lot of very potent issues,” said Yale’s Fidell. “It’s like a law school exam question, and it’s only just the beginning.”