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What happens next

I found this article on how military justice will handle the Fort Hood
shooter on a death penalty group to which I subscribe.  I found it a good
article, knowledgeable and balanced.

Donna Evleth

------------------



US MILITARY:

How the Fort Hood Shooter Will be Judged


In a time of war, they volunteered to defend us. They would have died as
heroes for us. Had they, at least their families might be making some
sense of the terrible loss they must feel now. With loss, there might at
least be meaning  the understanding that their loss is what history has
always deducted from our hearts to keep evil at bay for a greater good,
for freedoms that are not free. But Nidal Hasans murder of twelve soldiers
at Fort Hood will be all the more agonizing for the families because there
is simply no making sense of it. It had no meaning. There are no words to
express how contemptible it was  this cowardly theft of brave young lives
from the parents who invested decades of love in their children, of
spouses who will never be consoled, and of children who not know mothers
and fathers.

There are no root causes, "legitimate" grievances, or divided loyalties
that can explain Nidal Malik Hasan, though in due course, some will try to
find them. Here, I do not refer to the Army defense counsel who will be
burdened with the dreaded duty of defending a man they will assuredly and
justifiably loathe, but must defend anyway. For 4 years, I was an Army
Trial Defense Counsel myself. The military conditioning to protect young
soldiers is so deeply instilled in commanders and noncommissioned officers
that most deeply appreciated my zeal even as I attacked the evidence for
the charges they had sent to trial, often with reluctance. For Hasan, the
dynamic will be very different. Those who judge Hasan will see repellent
dishonor in a man who murdered the soldiers every officer swears he will
lead and protect, who betrayed the country he swore to defend, and who
killed and maimed despite swearing an oath to heal, to do no harm. If
religion was Hasans motive, his was an extraordinarily promiscuous view of
the meaning of ones oath to God. No officer can be, or should be, forgiven
for betraying and harming soldiers.

The Army will want to exercise jurisdiction over Hasan's crimes under the
Uniform Code of Military Justice. It is the Army way, and it is consistent
with the authority of Article 2 of the UCMJ to punish offenses by a man
wearing its uniform, against its soldiers, within the boundaries of its
largest post. The civilian system could try him, but it is Hasan's good
fortune  and I will soon explain why  that it probably won't.

For those of us who play no role in Hasan's trial, no punishment but death
seems appropriate, yet the obvious justice of such an outcome is far from
assured. For one thing, President Obama will have to attend and speak at
these soldiers funerals. Silence will not be an option. How can he console
without appearing to prejudge guilt and punishment? He must. Any such
statement would allow defense attorneys to argue that Obama's comments
constitute unlawful command influence and demand that the charges should
be dismissed, or that the death penalty must be excluded. At best, appeals
alleging unlawful command influence would delay any execution
indefinitely. Prepare yourself for President Obama to sound mealy-mouthed,
but it is important to understand that the legal context will dictate
this.

As soon as Hasan is well enough to understand them, charges will be
preferred on him, and an Article 32, UCMJ hearing will be set. The lawyers
will use this hearing to explore the evidence of premeditation, Hasan's
sanity, and potential evidence to mitigate punishment. The Article 32
officer will almost certainly recommend referral of the case to a General
Court Martial with the authority to adjudge capital punishment, and the
Commanding General is almost certain to follow that recommendation. The
evidence of premeditation already seems substantial, and that is before
all we will learn about Hasan's chats, blogs, and e-mails in the coming
days. Then will come numerous motions to appoint experts and consultants,
conduct discovery, and dismiss charges. In less time than it would take in
the civilian system, a panel  not a jury  of at least 12 officers will be
selected, all of whom must outrank Hasan (that is, the lowest-ranking
member must be a major with a date of rank earlier than Hasan's). If they
convict Hasan, they will proceed to adjudge a sentence.

Writing in the Military Law Review in 2006, three years after my brief
stint as editor, Marine Colonel Dwight H. Sullivan wrote that of the 47
capital cases the military has tried in recent decades, just 15 have
resulted in death sentences. The trial and sentencing in this case will
take a year or 2  much less time than it might take in the civilian
system, but that is only the beginning. If Hasan is sentenced to death,
the case will enter the military's meticulous appellate system, which has
reversed more death sentences than it has affirmed. There have been no
military executions since 1961, and there are 6 men sitting in the
military's death row today. Of these, only one appears to be at all close
to execution; in 2008, President Bush approved the execution of convicted
serial killer Private Ronald Gray, but Gray still sits on death row for
crimes he committed in the 1980's.

The infuriating reality we are left with is that if Nidal Hasan survives
his injuries, he may end up spending the remainder of his life in the
company of Hasan Akbar, who also sits on death row for the murder of his
comrades.

(source: New Ledger; Joshua Stanton, a former JAG officer, is an attorney
in Washington, DC.)

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