Death Penalty Tag Archives — Page 5 of 5 — Court-Martial Trial Practice Blog

Military insanity defense – Part III

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

If Major Hasan raises an insanity defense for his acts at Fort Hood, how might the defense actually work if at all.

Presumably he will present a combination of witnesses and documents. The media is reporting that prior to reporting to Fort Hood Major Hasan had “problems” so there will be witnesses to odd or strange behavior; there will be witnesses to the nature of his work and whether he could suffer vicarious traumatization; and there will be other witnesses to how he behaved. Then there may well be psychological testimony.

Here is a link to the Digest for the Court of Appeals for the Armed Forces (CAAF): “Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility.”

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’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 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.