Hasan update

I posted yesterday a couple of items where Mr. Galligan indicates he’s been given notice that the prosecution intends seeking the death penalty in the Hasan case.  He’s wrong, but not wrong.  It’s a question of terminology and reality.

Here is a quick note from KWTX.com:

FORT HOOD (April 30, 2010)–Fort Hood authorities said Friday they have not reached a decision to seek the death penalty in the upcoming Article 32 for Army Maj. Nidal M. Hasan.

“There has been no decision to pursue the death penalty in the case against Maj. Nidal Hasan,” Post officials said in a press release Friday.

Initially there are some terminology issues to resolve.  There are two notice provisions when the prosecution seeks a death penalty.

1.  Notice of a capital referral is first formally made on the charge sheet at the time of referral.  R.C.M. 1004(b)(1)(A). 

2.  Notice of the aggravating factors which the prosecution asserts justify the death penalty are given: (1)  in writing, (2)  by the Trial Counsel (remember we are at the Article 32, UCMJ, stage, so there is no trial counsel on the case, just government representatives assigned IAW R.C.M. 405(d)(3)(A)), (3)  before arraignment.  However, the government drafted R.C.M’s also have a get out provision that:

Failure to provide timely notice under this subsection of any aggravating factors under subsection (c) of this rule shall not bar later notice and proof of such additional aggravating factors unless the accused demonstrates specific prejudice from such failure and that a continuance or a recess is not an adequate remedy.

The aggravating factors are found at R.C.M. 1001(b)(4) as well as 1004(c).  Not all of those factors apply, but the following could:  damage to national security (2)(3),  endangering the life of one or more persons other than the victim(s) (4), and / or with intent to avoid hazardous duty (5).  So far it appears the prosecution is focused on 1004(c) (4).  R.C.M. 1001 addresses general aggravating evidence found in all cases and it is 1004 that addresses the additional aggravating facts to justify death.

So, I agree that legally the prosecution has not been referred capital.  Thus the notice isn’t really a notice as contemplated by the R.C.M.  However, it is my understanding that Army practice is now to produce for an Article 32, UCMJ, investigation information supporting a capital referral and asking the IO to make a recommendation.  Such a practice makes sense, especially in borderline cases.  Article 32, UCMJ, and RCM 405 provide for the IO making a recommendation as to disposition of the charges.  Clearly a recommendation on a capital referral is within the IO’s ambit.  If so, then it seems to me that the defense ought to have every opportunity to address those matters within the context of RCM 405.  It is my understanding that putting the defense on early notice was a reason for the practice at the Article 32, UCMJ, hearing. 

Here is the actual command press release courtesy of KWTX.com.

It’s true that the convening authority has not decided to make the formal referral.  But I think it somewhat disingenuous to proceed as if this is not a capital case.  By proceeding legalistically the prosecution can justify denying the defense the opportunity to prepare for and present mitigating information under RCM 405(f)(11)(12) at the Article 32, UCMJ, hearing.  That’s how I interpret Mr. Galligan’s complaints.  If the prosecution is proceeding deliberately to limit the defense opportunity to present mitigation at the Article 32, UCMJ, hearing, then perhaps Mr. Galligan’s perceptions of unfairness and gamesmanship could have a reasonable basis in his view.  Mr. Galligan has several items on his blog:

Senators Lieberman and Collins still have not received all of the information that was outlined in the subpoenas earlier served upon the Department of Defense and Department of Justice.  Nonetheless, the Senators received information that has yet to be provided to the Hasan Defense Team.

Prosecutors have voiced objection to anything more than a one-week continuance in the Article 32 hearing which is now scheduled to commence on 1 June.  They appear uncaring about that fact that the new member of the Defense Team is not expected to arrive at Fort Hood for several more months or the fact that basic discovery associated with the case (e.g. FBI reports and classified/restricted investigations) still have not been provided to the Defense counsel.  Most disturbing, the Army continues to stonewall Defense efforts to get its requested mitigation specialist on board.  In its most recent statement about this issue, the prosecutors have argued, “The Government notes that as the present case has not been referred to any level of court-martial, the defense is not presently entitled to a government funded mitigation specialist as a matter of right.”   It is time for them to stop playing games.  Dilatory actions like this is what gives military justice a bad rep – fundamental fairness and a balanced presentation of evidence apparently is of no concern to this crop of prosecutors.

Here’s a post at Huffington Post about ‘Wolf Blitzer’s Shame Campaign.’  Another media expose of those shameless defense counsel who represent an accused.  The piece ends:

What I don’t understand is this: Why is Wolf Blitzer trying to steal Nancy Grace’s thunder? I thought howling about what monsters defense attorneys are was her schtick.