Gunmen attack Fort Hood, Texas

[Boondoggle]

It will be interesting to see what primary defense will be raised. I expect some sort of mental capacity plea will be made, although that seems a hard sell under the UCMJ.

A very interesting plea would be to plead combatant immunity (Soldier of Allah, etc.). I can think of many reasons why that won't work - which is probably why it has not been pleaded by any of the Gitmo detainees. To my knowledge, none of them has formally claimed GC III protections as an enemy combatant entitled to EPW treatment; except for some rumblings about that by a defense expert witness in the Hamdan trial. A combatant immunity claim under the Hasan facts would be a real case of "first impression".

To make that plea, the defense would have to lay out all of MAJ Hasan's AQ connections (if any). So, a nutjob defense seems most likely.

Regards

Mike

I inferred this in my (much) earlier post, but Brian Ross has reported tonight on ABC that the Major repeatedly asked that soldiers he was "treating" be charged with war crimes. His "defense", really I would call it another front opened by someone who finds himself as a "soldier of allah", may very well be to put the conduct of American troops in Iraq and Afghanistan on trial. "Why put me to death when I repeatedly tried to report soldiers who expressed to me they killed men, women and children because they were bored?"

His best defense (his best to avoid death) will not be mental capacity, it will be the stories he carries with him, told to him by the very people he was there to "help". Call it 4GW, whatever, but that military courtroom, and the press, will become another battlefield in this war. Using our very own cherished institutions of a right to a fair trial and freedom of speech to wage war upon their very foundations. I worried this could become all kinds of worse, and we're one step closer to that it appears.

[slapout9]

His best defense (his best to avoid death) will not be mental capacity, it will be the stories he carries with him, told to him by the very people he was there to "help". Call it 4GW, whatever, but that military courtroom, and the press, will become another battlefield in this war. Using our very own cherished institutions of a right to a fair trial and freedom of speech to wage war upon their very foundations. I worried this could become all kinds of worse, and we're one step closer to that it appears.

Since those stories were made to a Doctor (which would be confidential) they my not be able to use them. Even if they could use them the person who actually made the statement would be subpoenaed to testify in which case he could just invoke the 5th. Which would in effect nullify testimonial evidence. maybe jmm99 can comment on that legal aspect when he gets a chance.

[Boondoggle]

Since those stories were made to a Doctor (which would be confidential) they my not be able to use them. Even if they could use them the person who actually made the statement would be subpoenaed to testify in which case he could just invoke the 5th. Which would in effect nullify testimonial evidence. maybe jmm99 can comment on that legal aspect when he gets a chance.

While its a great question, that JMM could answer much better than I could though I once did have to go through the process of subpoening mental health records for a criminal trial, I think it may be somewhat irrelevant to Hasan. If he intends to make a trial, or the lead up to a trial or plea, into a platform for his views, he'll use every avenue to get out his story, whether it helps his defense may be secondary to his purposes. IIRC, the military courts have a much tighter control over information released through the press than federal courts so if this becomes Hasan's intent, it could put his attorneys in a bit of a bind if they can't find an avenue through the court, either through motions or at trial, to disseminate this information.

Edit: link to story here... http://abcnews.go.com/Blotter/offici...ory?id=9019904

[jmm99]

MRE Rule 513. Psychotherapist-patient privilege, governs (snip from a 2 page rule)

(a) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.
.....
(c) Who may claim the privilege. The privilege may be claimed by the patient or the guardian or conservator of the patient. A person who may claim the privilege may authorize trial counsel or defense counsel to claim the privilege on his or her behalf. The psychotherapist or assistant to the psychotherapist who received the communication may claim the privilege on behalf of the patient. The authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.

Probably testimony as to a specific patient could be kept out, if that patient authorizes trial counsel (prosecutor) to assert the personal privilege.

But, what if the line of questioning never mentions the patients' names ? E.g., MAJ Hasan would you please relate to us, without mentioning names or any other details which would identify the patients, the 101 instances which caused you to form the belief that the armed conflicts in Astan and Iraq were immoral and illegal under the tenets of your religion and Sharia law, as well as the Hague and Geneva Conventions ?

I dunno; I suppose it would depend on the judge. The judge has vast discretion to enter protective (gag) orders, etc., as Boondoggle correctly says.

Regards

Mike

[slapout9]

MRE Rule 513. Psychotherapist-patient privilege, governs (snip from a 2 page rule)



Probably testimony as to a specific patient could be kept out, if that patient authorizes trial counsel (prosecutor) to assert the personal privilege.

But, what if the line of questioning never mentions the patients' names ? E.g., MAJ Hasan would you please relate to us, without mentioning names or any other details which would identify the patients, the 101 instances which caused you to form the belief that the armed conflicts in Astan and Iraq were immoral and illegal under the tenets of your religion and Sharia law ?

I dunno; I suppose it would depend on the judge. The judge has vast discretion to enter protective (gag) orders, etc., as Booindoggle correctly says.

Regards

Mike

In LA(lower Alabama) I am pretty sure that would be considered "hear say" evidence and hence not admissible unless that person was available for cross examination to verify he/she said what was heard. At which time the person could invoke the 5th(at least I would think they would)since they are not the one on trial. But........I don't know enough about the UCMJ to know if the same rules apply.

[jmm99]

It depends on the purpose for which the out of court statement is offered.

Here is the snip from MRE Rule 801, Definitions:

The following definitions apply under this section:
.....
(c) Hearsay. “Hearsay” is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Now check out my question and note the bolded weasel words:

E.g., MAJ Hasan would you please relate to us, without mentioning names or any other details which would identify the patients, the 101 instances which caused you to form the belief that the armed conflicts in Astan and Iraq were immoral and illegal under the tenets of your religion and Sharia law, as well as the Hague and Geneva Conventions ?

For example, let's say that the 101 instances are stories related to Hasan by patients that they (patients) shot women and children. If those statements are submitted to prove as fact that 101 patients actually shot women and children, those statements are hearsay. But, if they are submitted to prove the basis of MAJ Hasan's belief that US troops shot women and children, they would not be hearsay. Beliefs (and intent) may be formed on the basis of asserted facts which are untrue or complete fantasies.

Another area where this could come up are the emails with Anwar al-Awlaki (the Yemeni cleric, etc.), which according to al-Awlaki responded by telling Hasan that it was permissible for him to wage violent jihad against US troops. Again, it depends on who seeks to introduce those statements and for what purpose.

Let's say the defense seeks to introduce them to establish a basis for MAJ Hasan's belief that he was a Soldier of Allah and that his jihadic actions were sanctioned by Sharia law. We probably could find any number of Islamic scholars who would testify that al-Awlaki's extremist Salafist views are contrary to sound Islamic principles. But, the point is not to prove that al-Awlaki's views are true or false, but to prove that Hasan formed a belief based on those views that caused him to act.

All of this is subject to other evidentiary rules. The emails exist (in FBI hands) and say what they say. Hence, the only issue is for what purpose they are introduced. But, what about the 101 interviews ? If MAJ Hasan testifies to them from memory, a definite credibility issue exists. But, what if there are interview notes by him, or recorded interviews, that substantiate his claims ? Can those be used to "refresh recollection" ?

To summarize, not all out of court statements are hearsay. Usually, their admissibility hinges on the purpose; that is, to establish belief, intent, motive for the act; but non-hearsay could also be a prior statement by a witness (that impeaches his testimony), or an admission by a party-opponent (such as a confession or statements proving a conspiracy).

Then, there are numerous exceptions to the hearsay rule; that is, where out of court statements are offered to prove the truth of what is stated in them (and thus are hearsay), but where policy reasons have created a host of exceptions. There are dozens of them; and that critical facet of trial practice and tactics is covered by MRE Rules 801-806.

You might want to download the 2008 Manual for Courts-Martial, which has all of this in Chapter III (Military Rules of Evidence).

Finally, there is MRE 807, Residual Exception, which is the MRE's equivalent of "conduct unbecoming" (it also allows admission of some "battlefield hearsay", a key point in the Gitmo detainee hearings):

Rule 807. Residual exception.

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

So, it depends a lot on the judge.

PS: the non-heasay use of statements to prove a belief is particularly pertinent to mental capacity.

"Objection, your honor, Mr McCarthy is attempting to introduce statements which are pure fantasies and he knows it."

"Quite true, your honor, the statements are pure fantasties. My client is nuts. His beliefs are founded on pure fanasties. That's why he is nuts."

"Objection overruled. The jury will consider what weight, if any, to be given the statements in regard to the defendant's mental capacity."

[slapout9]

But, if they are submitted to prove the basis of MAJ Hasan's belief that US troops shot women and children, they would not be hearsay. Beliefs (and intent) may be formed on the basis of asserted facts which are untrue or complete fantasies.

jmm99, you might be right. I was thinking something along those lines last night.......genrally motive only has to be established.......it does not have to be proven! method/means and opportunity do but that is usually done with physical evidence, the gun with his fingerprints on it and the shell casings, opportunity he was found bleeding at the scene not much problem with any of these IMO.

[slapout9]

Call it 4GW, whatever, but that military courtroom, and the press, will become another battlefield in this war. Using our very own cherished institutions of a right to a fair trial and freedom of speech to wage war upon their very foundations. I worried this could become all kinds of worse, and we're one step closer to that it appears.

Boondoggle, to continue with your Line of reasoning, I think you will really see this happen with the upcoming trial in New York. Since the whole city was affected by 911 it is going to be near impossible to find an impartial jury and I imagine his lawyers who will wage Lawfare will bring that up right from the start.

[MikeF]

Boondoggle, to continue with your Line of reasoning, I think you will really see this happen with the upcoming trial in New York. Since the whole city was affected by 911 it is going to be near impossible to find an impartial jury and I imagine his lawyers who will wage Lawfare will bring that up right from the start.

You're assuming that he will plead not guilty. Putting on my jihad hat, I'd plead guilty b/c I knew my means justified the ends. That goes for Maj Hasan and the 9/11 clowns.

[davidbfpo]

The full WaPo title was 'Senate probe faults Army, FBI for missing warning signs before Fort Hood attack':http://www.washingtonpost.com/wp-dyn...020301899.html

For an outsider I noted these points:

..the FBI had compelling evidence of extremism that should have led to Hasan's military discharge and made him the subject of a counterterrorism investigation....higher-ups wrote his officer evaluation reports in a way that "sanitized his obsession with violent Islamist extremism into praiseworthy research on counterterrorism."

And for the lawyers:

Hasan's attorney, reacted to the latest report with outrage, saying the FBI and the Pentagon continue supplying e-mails and personnel files for such investigations but have withheld them from Hasan's defense in the course of the legal discovery process.

The report itself:http://www.washingtonpost.com/wp-srv...l?hpid=topnews

Which one day I may read in full.

[jmm99]

Solely in answer to your question regarding discovery by defendants under the UCMJ.

1. The UCMJ has liberal (pro-defendant) discovery provisions which are comparable to those under the Federal or Michigan Criminal Rules.

2. That being said, the defense lawyer has to ask in the correct way under the applicable law.

A good outline of UCMJ discovery and production starts at p.J-1 (p.255 pdf) of the 2010 Crim-Law-Deskbook_V-1.pdf (download link):

DISCOVERY AND PRODUCTION
TABLE OF CONTENTS

I. REFERENCES - 1

II. INTRODUCTION - 1

III. GENERAL - 2

IV. GOVERNMENT DISCOVERY RESPONSIBILITIES AND REQUESTS - 3

V. DEFENSE DISCOVERY RESPONSIBILITIES AND REQUESTS - 15

VI. REGULATION OF DISCOVERY - 18

VII. PRODUCTION - 23

VIII. CONCLUSION AND PRACTICE TIPS - 32

IX. APPENDIX - 34

The Appendix outlines the several dozen rules applicable.

All that being true, the USG is an octapus, whose multiple hands do not necessarily communicate. The largest discovery and production problems in the DC District and Circuit Gitmo cases (whose Federal judges have more practical clout than military judges with USG agencies) came about because consolidated databases did not exist for each detainee. The first octapus hand did not know what the eighth hand held.

So, the defense attorney may just be blowing smoke; or, he screwed up (asked the wrong question); or, the FBI and DoD are not communicating well. An intentional failure to disclose (in violation of the UCMJ) is unlikely; though, of course, "possible".

Regards

Mike

[gute]

Has a report come out on the shooting itself and the effectiveness of the 5.7x28 round?

[AdamG]

Has a report come out on the shooting itself and the effectiveness of the 5.7x28 round?

No, but there's one on the ineffectiveness of some officers.

WASHINGTON (AP) -- Nine Army officers are being reprimanded for leadership failures in connection with the shooting rampage at Fort Hood, Texas, and their failure to detect and report problems with the accused shooter, Maj. Nidal Malik Hasan, as he moved along in his medical career.

Saying that although no single event directly led to the tragedy, Army Secretary John McHugh found that certain officers failed to meet expected standards, an Army statement said Thursday. The officers - all lieutenant or above - will receive punishments ranging from an oral reprimand to the far more serious written letter of censure that is considered a career-ender.

Hasan is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the November 2009 shooting spree on the Texas military post.

A Pentagon review last year found that Hasan's supervisors at Walter Reed Army Medical Center where he worked expressed serious concerns about his questionable behavior and poor judgment but failed to heed their own warnings. It said the Army psychiatrist's supervisors continued to give him positive performance evaluations that kept him moving up through the ranks despite worries about his strident views on Islam and worries about his competence.

http://hosted.ap.org/dynamic/stories...TAM&SECTION=US

[AdamG]

There were indications Wednesday morning that Maj. Nidal Hasan’s lawyer could withdraw from his position as lead defense counsel for the man accused of murdering 13 people on Ft. Hood at a pending arraignment hearing.

http://www.kwtx.com/news/headlines/1...8.html?ref=618

[jmm99]

In a fractured version of the Dirty Dozen script, the military judge sought to emulate Robert Ryan's character.

AP: Court ousts judge, shaving order in Fort Hood case (4 Dec 2012):

Hasan appealed after Gross ordered that he must be clean-shaven or be forcibly shaved before his military trial, which had been set to begin three months ago. It has been on hold pending the appeals.

An Army appeals court upheld the shaving requirement in October. But Monday, the U.S. Court of Appeals for the Armed Forces said the command, not the judge, is responsible for enforcing grooming standards.

Gross had repeatedly said Hasan's beard was a disruption to the court proceedings, but the military appeals court ruled that there was insufficient evidence to show that was true.

Gross found Hasan in contempt of court at six previous pretrial hearings because he was not clean-shaven, then sent him to a nearby trailer to watch the proceedings on a closed-circuit television. The appeals court's ruling also vacated the contempt of court convictions.

If the defendant wants to appear as a combatant in "God's Army", so what. The evidence needed to convict appears to be more than adequate.

Why do some judges allow themselves to be diverted by collateral issues ? The need to assert their authority, I'd posit - but to what end when justice is delayed ?

Regards

Mike

[Polarbear1605]

But Monday, the U.S. Court of Appeals for the Armed Forces said the command, not the judge, is responsible for enforcing grooming standards.

I have to agree with the court on that one...that is a command responsibility and in this case it means the convening authority is not doing their job. The defendent should be ordered to shave and if not, a charge added to the court martial for failure to obey an order from his commanding officer. This is another example of a commander deferring his command responsibility (lack of leadership) to the lawyers.

[jmm99]

I agree with your technical legal reasoning:

The defendent should be ordered to shave and if not, a charge added to the court martial for failure to obey an order from his commanding officer.

and also that, when a commander defers what should be his or her decisions to his or her lawyers, IMO: the lawyers have a fool for a client.

But, you wouldn't seriously prefer a charge for failure to obey a shaving order if you were his CO, would you ?

I mean, the guy is faced with a baker's dozen of death penalty charges. An added charge for failure to obey an order would be meaningless to what happens to him on the capital charges - and would itself be a diversion.

Ironically, this SOB could have avoided the whole shooting spree by simply refusing the order to deploy to a Muslim country (his initial stated reasoning against the deployment order). He then would have been prosecuted for failure to obey an order, where the sentencing guidelines would have been relatively generous.

No, instead he decided to be a jihadist, etc - for reasons that had to go well beyond his initial stated reasoning.

Regards

Mike

[Polarbear1605]

Agree with everything you say...but I can still complain...right?
First and foremost they need to be talking to one another and it appears they are not. In this case, the judge initiated the issue with the “forced shaving” ultimatum setting off a long delay for the appeal process. Second, if the commanding officer does not have the authority to “force shave” than neither does the military judge. There should have been an immediate after conversation (before would have been better) initiated by the commander/CA with the judge...Subj: WTF!, Over. And OH!..BTW…let me get ahead of the appeal court…your fired, judge.

If I were the commander/CA, I would be very upset about the appeal delay. This multi-murder happened, what, three years ago? Shaving, IMHO, is clearly a command issue getting back to “good order and discipline” command authority. If, I were commander/CA, and I wanted to avoid the appeal delay, I would have either told the judge …to not worry about the beard or I would appear at the brig with both sets of lawyers (defense and prosecution) order this guy to shave and when he refused add a charge. The add the charge part is in case he decided to shave before he appeared at the court martial. Not shaving is not going to help this guy before a sitting court of his peers.
The next reason these two need to be talking is the whole plea bargaining thing that may or may not happen. I cannot recall a plea bargaining paragraph in the UCMJ or the MCM…in my mind that clearly makes plea bargaining a command responsibility.

Another issue is that any finding by a court martial is essentially a recommendation because the commander/CA can accept, reject or modify.

Let’s talk about another case where the CA didn’t do their command job. Yep! Haditha…you knew I had to go there. One of the defendants in the Haditha case was a LT, intell type. The Lt was attached from 2MARDIV (Camp Lejuene) to the 1MARDIV Bn while both were in Iraq. Consequently, the court martial was held by 1MARDIV CA at Camp Pendleton. The LT was basically charge with obstruction of justice because he ordered his E-5 intell chief to destroy a set of photos of the Iraqi dead. He gave this order in accordance with standing orders that no pics of Iraqi dead were authorized and subsequently, found not guilty.

At one point in the pretrial proceedings, the Lt was actually discharged from the Maine Corps by his battalion commander back in Camp Lejeune. The prosecutor immediately added a charge to the Lt’s court martial for illegally discharging himself from the Marines. At the court martial, the defense attorney called the Lt’s 2MARDIV battalion commander and asked him why he discharged the LT. Answer: Because I am required by law to discharge him at the end of his contract. I can, however, place him on legal hold at the request of the CA. The prosecutor never requested or sent a legal hold letter to 2MARDIV. The prosecutor was charging the LT for his mistake. If I were the CA, I would have taken a considerable amount of both the prosecutor’s and judge’s time immediately after the charges were written up.

Commanders are turning their responsibilities over to the lawyers turning many of these show trials into clown schools.