Maj Nidal Hasan Faces Death Penalty in Military Trial for Fr. Hood Shooting

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 22, 2013

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The trial of Maj. Nidal Malik Hasan, the Army psychiatrist charged after the 2009 shooting at Ft. Hood, took a step forward on Wednesday when judge Col. Tara Osborn rejected the defendants’ attempt at a guilty plea.  Under military law, defendants whose crimes carry a penalty of death are not permitted to plead guilty to the offense, and the ruling assures that Hasan will face a capital trial. 

Col. Osborn also rejected defense request to move the trial and to select jurors from military branches outside of the army, while deferring on a decision about whether or not to allow the government to use a terrorism expert witness in the prosecution.  The trial will proceed in earnest on May 29th when the jury selection process begins.

Hasan’s Criminal Charges

Hasan has been charged with 13 counts of premeditated murder and 32 counts of attempted murder after his 2009 shooting rampage at the Ft. Hood army base.  The shooting is the worst mass shooting ever at a U.S. military installation, and questions about terrorism arise after Hasan was allegedly motivated by the death of Anwar Awlaki.  Awlaki, an American member of Al Qaeda, was killed by a US drone strike in Yemen.  Military prosecutors argue that a terrorism expert would help prove Hasan’s motive, while defense attorneys counter that the testimony is overly prejudicial to their client.  Col. Osborn will make a final decision on introducing terrorism into the trial before it begins. 

Osborn will also have to decide whether or not to force Hasan to shave his beard before the trial – an issue that caused the first judge, Col. Gregory Gross, to be removed from the case.  The trial was supposed to start last summer, but a dispute between Col. Gross and Hasan over the beard, which Hasan refused to shave for religious reasons, delayed matters until Gross was removed for failure to remain impartial.  Whatever the decision, the trial appears to be back on track with or without Hasan’s facial hair.

Capital Trials in Military Courts

There are several differences between military and civilian courts, and this case provides an opportunity to discuss how the US Military handles capital trials of servicemen.  Military trials, or court-martials, are conducted before a panel of 12 military members, all of whom must outrank the defendant.  As demonstrated by Hasan’s failed plea, the defendant cannot plead guilty in a capital trial, but can only be convicted if the jury vote is unanimous. 

Military death sentences are only available for a handful of specific crimes, and prosecutors must convince every member of the panel that death is the only sentence applicable considering the facts of the case.  All capital court-martials are appealed to two levels of military appeals court, and a death sentence cannot be carried out until the President of the United States personally confirms it.  If convicted, Hasan will face death by lethal injection, which is the only method of military executions approved for use.

Up until 1997, military courts could not sentence a defendant to life without parole, but now that there is a life term alternative to capital punishment, there are few capital court-martials. The US Military has not executed a serviceman since 1961, but has 6 inmates on death row awaiting execution.  Considering the high profile defendant,  the severity of his actions, and the rarity of capital court-martials, Hasan’s trial provides a unique opportunity to follow a military trial that carries a death sentence.

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