Fort Hood Suspect’s Defense Has Few Options

FORT WORTH (AP) – More than two dozen soldiers have testified about the day they were shot in a crowded Fort Hood building in November 2009. Some told of looking the gunman in the eye as he fired. A Senate investigation has announced its findings about the suspect: before the rampage, the Army psychiatrist had become an Islamic extremist and a “ticking time bomb.”

Now the defense team for Maj. Nidal Hasan, who is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder, faces what seems like an impossible task of preventing a conviction and potential death sentence in one of the highest profile cases in military history.

Hasan, 40, who remains jailed and was paralyzed after police shot him that day, could go to trial later this year at Fort Hood, the Texas Army post about 125 miles south of Fort Worth. On Wednesday, Fort Hood’s commander ordered Hasan to stand trial after reviewing documents from last fall’s evidentiary hearing.

For the defense lawyers, “there are huge challenges in this case — challenges that may not be present in other capital cases,” said Richard Stevens, a military defense attorney who is not involved in the case.

John Galligan, the lead defense attorney, has said little about the strategies he is considering for the trial. But experts in military law say his choices are limited: hope that Hasan’s mental state would prompt a jury to opt for a life sentence, or watch for legal errors or complications that could cause a conviction or death sentence to be overturned.

Galligan is clearly mindful of the reversible-error prospect, and can be expected to challenge every legal decision in the trial that could be used for an appeal. Galligan said 80 percent of the military’s death sentences have been commuted to life in prison without parole since the military reinstated the death penalty in 1984. No military convict has been executed since 1961 because of the lengthy appeals process.

“The reversal rate and length of time since an execution show that the military’s death penalty system isn’t working and shouldn’t be used,” Galligan told The Associated Press. “The Army here is more interested in getting a capital case and getting a death sentence and moving on, even if it sits there for 20 years.”

Eight death sentences have been commuted since 1984 because of procedural or evidentiary errors in trial.

The president must approve any execution in the military court system. In 2008 President George W. Bush signed an execution order for a former Army cook convicted of several rapes and murders in the 1980s, but a federal judge has stayed that order to allow for a new round of appeals in federal court.

Despite what could be a lengthy process, many affected by the Fort Hood rampage believe death is the only appropriate punishment if Hasan is convicted in the worst mass shooting on a U.S. military installation.

“People will want to hear the other side during the court-martial, but what could he possibly say in his defense?” said Staff Sgt. Jeannette Juroff, who was working in a nearby building that day and helped wounded soldiers.

Galligan initially said he was considering an insanity defense, but then backed off after a mental evaluation of Hasan last year by a three-member military mental health panel.

Galligan has refused to disclose the panel’s finding, but indications are that the evaluation would not support a contention that Hasan suffered from a severe mental illness that prevented him from knowing, during the rampage, that his alleged actions were wrong — the legal definition of insanity.

Several military law experts said they doubt Hasan will plead innocent by reason of insanity. Fewer than 10 soldiers were found not guilty by reason of insanity in more than 21,000 military trials from 1990 to 2006, according to an Army study.

But Hasan’s defense team could argue that he has mental illness without using an insanity defense — especially if he’s convicted and they are trying to avoid a death sentence.

“Sometimes one prong of the (mental health evaluation) report will show that a defendant has a mental issue like depression, and the defense can use whatever is in that report at sentencing as mitigating factors,” said Greg T. Rinckey, a New York attorney who defends military clients and is not involved with the Hasan case.

That defense tactic was used in the 2005 trial of Sgt. Hasan Akbar. His attorneys didn’t dispute that he threw grenades into fellow soldiers’ tents in Kuwait in 2003 and then fired on them. But they said he was mentally ill — although legally sane. Akbar was convicted and sentenced to death. His case remains on appeal.

Prosecutors in the Hasan case have said they will not comment before the trial.

Death-penalty cases in the military require at least 12 jury members, more than in other cases. And unlike other trials, their verdict must be unanimous in finding guilt or assessing a sentence. If Hasan is convicted, jurors would decide between life in military prison without parole and the death penalty.

“The biggest challenge is the fact that there are going to be so many witnesses identifying him as the shooter, and the public perception that he’s guilty, so this is very difficult from the defense side … so the chances on appeal are probably going to be better than at trial,” Rinckey said.

(Copyright 2011 by The Associated Press. All Rights Reserved.)


One Comment

  1. FranklySpeaking says:

    “Hasan, 40, who remains jailed and was paralyzed after police shot him…” Well, that is good news…He did this in Texas, so now we know what the end will be and a well deserving end it will be mind you. Although I some what have mixed emotions knowing he was a solider and having served and trained at Fort Hood myself. Naw, I don’t. Just kidding. Good riddance to this POS!

    1. GB says:

      What does the fact that him committing this crime in Texas have any bearing? He is being tried by a military tribunal … not a state court in Texas. He probably will never be executed by the Feds/Military .. or at least his odds are less of being executed than if he were tried in a state court in Texas.

      1. 2sister says:

        You’re right about the trial not being in the jurisdiction of Texas. Could he, however, face charges in Texas for the police officer that he assaulted. She was not in the military. She was apparently a local police officer.

  2. NiteNurse says:

    He was suicidal when he committed this act. He can’t possibly be happy in his current state. Putting him to death is what he really wants. Why not put him out of his misery? Although some people might say to spend the rest of your life confined to a wheelchair in an American military prison is hell what could be a better punishment?

  3. Beverly says:

    I remember hearing about this horrible act when it happened. I will probably get a lot of flack about what I am about to say but so be it. I am not denying that he did what he is accused of for one minute BUT I do believe the military in, were aware of his problems and sent him down to Ft Hood anyway and should have known better. The things that came out about him after the shooting from Superiors were amazing. I think, sending him there was the straw that broke the camel’s back. I also think he will be convicted. POS? No, he was and is a member of the Armed Forces and was sent there to be shipped out to a place he did not want to go to do things he didn’t want to have to do. Superiors were aware of that also.

    1. NiteWatering says:

      You don’t join the military unless you are willing-capable of killing doing the job. Unless you enter after a conflict starts you never know who the next foe will be. You don’t get to pick-choose what wars your willing to fight, although that would be a nice option since we no longer only fight out of defense which is the only valid reason many would risk their lives.
      No they will not let you sign up, quit and pay them back because you don’t want to go to war, the job is one of defense and that is the department that you get your pay check from. Investment is in food, pay, travel pay, training, and housing from day 1.
      AWOL is the peaceful option and even when superiors won’t let you out that is the venue good people take to get out after they serve their time for going AWOL. I agree anyone who does get out early unless it’s for physical medical reasons (not pregnancy) should fully pay the taxpayers for every penny they have invested in them from day 1 for not doing their job which is defense.
      You don’t go around killing your own people unless you have become a traitor in war time unless your on the front lines and lost it mentally. Under law in times of war being a traitor is an automatic death penalty without trail unless they took it off the books. So yes he is a POS that shouldn’t even get a trail or one more penny of our money spent on him.
      Notice he was capable of killing my brothers and sisters, yet not capable of going to war because he didn’t want Muslim extremist killed? So like him you don’t have a leg to stand on, since he didn’t go AWOL as his way out.

      1. Beverly says:

        When his military record started coming out, they said there were mistakes made. He should have been discharged but was not.

      2. 2sister says:

        What you say about joining the military is true in our current situation. Young men between the ages of 18 and 25, however, are required to register. If they decided to have a draft, some of these young men could have to join the military, even if they don’t want to.

      3. Beverly says:

        Yes, they are. They have to register with the Selective Service, just in case. If I am not mistaken, he can be tried in TX also as he killed a civiilian cop. AND the military can give him, and have given others, a death sentence.

    2. NiteWatering says:

      The draft is a non-choice situation, yet you still have a choice. Many burned draft cards and fled the country for an undeclared war. I have no problem with that since we where not directly attacked, yet even when directly attacked I have no problem with those who cannot take the heat or be a benefit to the cause to be left off the front line. Some of our people would pose more of a threat to our troops than the foes would just because they can’t throw or shoot straight, yet there are many other jobs they could do to help out that would not pose a risk to the lives of the fighters.
      Mistakes are made outside the military too, thus your saying if that is done they have the right to kill 13 co-workers and harm 32 more in a rampage? Joe is fired and he thinks it’s a mistake because he works harder than you, look out since a lot are hitting the streets these days and it is true some of them are the harder working ones.
      What you have not mentioned is his links to the foes which has also come up and why he was willing to harm his own, yet not want them harmed. It is a shame he wanted out and didn’t get out, yet given his capablities and links had he gotten out it just might have been you he harmed on a rampage which would have come anyway since he was in touch with the foes or sympathtic to them. I also feel sorry for the foes because they do have some valid reasons for their cause, yet they are going about a solution in a manor that leaves me with the only choice of kill or be killed. Given that option I’ll kill.

  4. me4sure says:

    Then he h ad the right to resign and accept a court martial for that act.. Instead he went ballistic..

    1. Beverly says:

      I didn’t know you could resign from the military.

  5. NiteNurse says:

    I feel the military didn’t want him to leave because of all the money they invested in his education and training. I feel if that was the case then they need to change their policies so that soldiers like him will have to pay money to get out. Just like any breach of contract.

    1. Beverly says:

      I agree with you, NiteNurse and his brothers in arms paid the price. Guess they never heard about cutting your losses and letting someone go.

  6. AC says:

    I think they should prop him up, keep him alive, set up a 60″ plasma flat screen and leave it on the CMT country channel. The guy will be brain dead wihin a year

  7. legal digust says:

    This is such a waste of everyone’s time. He’s a renounced muslim, we’re at war with them. It’s clear and simple to me….the firing squad. End of story…but no, these well edumucated lawyers are going to waste everyones time and money just to try and do what, leave him in prison the rest of his miserable life? That is one big joke against the legal system yet again. This shouldn’t be happening at all.

    1. Don says:

      We are at war with muslim extremist, not with muslims. There is a big difference.
      It is a shame they didn’t just let him bleed out, yet they needed to know why he did it in hopes to be able to prevent it from happening again.
      Military definately needs to make an example out of him by giving him his day in court and immediately put him to death.

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