hasan Tag Archives — Page 4 of 4 — Court-Martial Trial Practice Blog

Technology and the fourth amendment

November 12, 2009 | The Law Office of Philip D. Cave

The Wall Street Journal reports:

The only good news out of the Fort Hood massacre is that U.S. electronic surveillance technology was able to pick up Major Hasan’s phone calls to an al Qaeda-loving imam in Yemen. The bad news is the people and agencies listening to Hasan didn’t know what to do about it. Other than nothing.

The other bad news may be that a number of politicians, particularly Hoekstra, having been disclosing this information to the public. No wonder the CIA and other agencies are suspicious of giving “delicate” shall we say information to Congress.

Military insanity defense – Part I

November 11, 2009 | The Law Office of Philip D. Cave

The military (insanity) lack of mental responsibility defense is set out in several places relevant to Major Hasan and the events at Fort Hood. The first step that should be taken by a prudent convening authority in this case is to order a mental examination under R.C.M. 706, as soon as Major Hasan is medically fit. Major Hasan and his counsel could arrange for a private examination at the major’s own expense. But should they attempt to put on an insanity/lack of mental responsibility defense the prosecution will certainly persuade the military judge to order a government examination.

There are two reports: the first is a short form with the answers to the basic questions. The short form is given to the commander at Fort Hood, his legal advisor, the prosecution, and the military judge. A long and detailed report is given only to the defense. Thus the examination and a large part of the work is privileged. Mil. R. Evid. 302 sets out the privileged nature of the examination, and the exceptions. The defense becomes the gatekeeper of the report. Should the defense seek to put on a lack of mental responsibility (insanity) defense the report may well have to be disclosed. Should the examination find the major currently incompetent, then he’s off to the federal confinement facility at Butner, NC, under Article 76b, UCMJ. There is currently one service-member at Butner under Article 76b.

Toobin on toolong

November 11, 2009 | The Law Office of Philip D. Cave

CNN Justice reports:

Toobin: Cabinet members may end up negotiating which legal system will try Army Maj. Nidal Malik Hasan, the suspect in last week’s mass shooting at Fort Hood in Texas, CNN senior legal analyst Jeffrey Toobin said Tuesday.

CNN: Would the charges be the same in either case?

Major Hasan – the hardest job

November 11, 2009 | The Law Office of Philip D. Cave

Who has the hardest job in the prosecution and defense of Major Hasan, by that I’m talking about the lawyers and the judge.

As many have already observed, the merits portion of Major Hasan’s trial at Fort Hood is likely a done deal, except for the potential mental health issues. I would even argue that it’s not necessary to know why Major Hasan killed a lot of innocent people in a very public way. There are 14 dead (I’m including the fetus) and a score or so physically injured. There are witnesses and apparently the weapon(s) have been found. The police officer who shot him can testify to chain of custody. With that evidence presented to the Members, who needs to know his motive to convict. A group of five to seven live witnesses can testify to victim impact, and have lots of letters standing by. Perhaps get some making a very simple video statement.

The elephant in the room will be his motive regardless of any evidence that he was or tried to associate with terrorists. With all of the media attention this case has and will continue to have, does anybody not understand and believe that regardless of what you tell the Members they will be thinking about what happened and why. That means you don’t need to present evidence of motive. Trying to prove Major Hasan is a terrorist or has terrorist ties isn’t going to aggravate the case any more than it is for a conviction and death penalty sentence. And it’s a conviction and sentence that will stick and not having to spend a long time in appellate review that people want and need.

Major Hasan — a new twist

November 10, 2009 | The Law Office of Philip D. Cave

The LifeSiteNews.com is reporting:

While Hasan recovers at the Brooke Army Medical Center in San Antonio, the Army is readying itself to charge Hasan in military court, where he could face the death-penalty. But prosecutors will have to charge Hasan under the Uniform Code of Military Justice (UCMJ), which was amended in 2004 to include “Laci and Conner’s Law” or the Unborn Victims of Violence Act (UVVA).

The UVVA requires that the justice system charge the perpetrator of a violent crime against a pregnant woman, resulting in death or bodily injury to her unborn child, with committing a separate and distinct offence against the mother’s unborn child. The law specifies that the punishment applied for the injury or death of the child must be the same – with the exception of the death penalty – as if “that injury or death occurred to the unborn child’s mother.”

Major Hassan’s concealed carry application in VA

November 10, 2009 | The Law Office of Philip D. Cave

Gawker, an unusual blog has information about Major Hasan’s application for a concealed carry permit in VA. Fort Hood, like all military installations, will have a regulation concerning the possession and carrying of weapons on post. Usually the weapon has to be stored in the Armory.

Here is the complete application. The blog also notes:

Before 1995, according to the Roanoke County Circuit Court clerk’s office, Virginia law required a psychiatric evaluation and documented explanation for why a resident needed to carry a concealed handgun. But by the time Hasan applied in October 1995, all that was required was a criminal background check and certification of a gun safety course. For some reason proof of having completed individual infantry training in the U.S. Army (next slide) was not enough for the Commonwealth of Virginia when it came to gun safety and Hasan had to take an NRA course as well.

Major Hasan’s mental health defense — or something else

November 10, 2009 | The Law Office of Philip D. Cave

Will Major Hasan successfully use PTSD as a defense, or will it at least become a mitigating factor to be considered. If the trial is at Fort Hood, as seems likely at the moment, many of the Members (jury) panel will already have quite a bit of extra-judicial information.

Here are some links relating to secondary traumatization.

Zimmering, Munroe, & Gulliver, Secondary Traumatization in Mental Health Care Providers, 20 Psych. Times (Apr. 2003).

Major Hasan’s religion a reason not to impose a death penalty?

November 10, 2009 | The Law Office of Philip D. Cave

I’m not posting much at the moment on the Fort Hood tragedy. People can follow the news as easily as I can. However, this article by Will Heaven in the (U.K.) Daily Telegraph did raise an eyebrow.

Fort Hood shooting: the death penalty would make Nidal Malik Hasan an Islamic martyr

The implication of the article is that commanders should make a political decision that seeking the death penalty is not a good idea. Equally I suppose an argument could be made that the defense should make the geo-politics an issue because anything that might be “mitigating” must be considered when seeking to impose the death penalty. I’m not an advocate of the death penalty for various reasons; a political decision is not one of the reasons I’m against the death penalty though.

Major Hasan’s future lawyers

November 9, 2009 | The Law Office of Philip D. Cave

Anyone who knows anything about death penalty cases knows that allegations of ineffective assistance of counsel (IAC) will figure significantly in an appeal. It’s given that no matter how hard they work they’ll be accused of incompetence.

Today, the Supreme Court summarily reversed a Sixth Circuit case in which the circuit court found IAC. Here is a link to the court’s order in Bobby v. Van Hook. It is of interest because the court was critical of the circuit courts reliance on the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. Here are the Guidelines.

/tip SCOTUSBlog.