fort hood Tag Archives — Page 7 of 9 — Court-Martial Trial Practice Blog

Army about to help the defense with discovery and preparation

November 17, 2009 | The Law Office of Philip D. Cave

I commented yesterday that the decision by the Homeland Security Committee could be a potential boon to defense discovery in Major Hasan’s court-martial at Fort Hood.

Homeland Security committee begins collecting discovery for the Major Hasan defense team.

It’s not clear yet, but it looks like the Army and Department of Defense might also be about to do the same. One of the major issues that counsel have to pursue in death penalty cases at court-martial is the persons background. Besides the potential insanity issue on the merits, it is critical to develop as much of a personal history and background as possible. That means the defense will be requesting, and if they are smart, the government providing the expert assistance of a mitigation expert. The committee and potential Army actions will be of potential assistance to the defense. True, the investigations could develop something negative, but in this case that’s not something the defense needs to worry about at this stage. The defense needs information, the prosecution will try to stop or delay them getting it, so outside help is welcome.

When investigators talk with Major Hasan we’ll know more

November 16, 2009 | The Law Office of Philip D. Cave

And pigs have wings and can fly.

The media continues to make the comment that investigators are waiting to talk with Major Hasan, at Fort Hood, and once they do we’ll know more about his motives. Huh? We’ll find out at court-martial what each party is suggesting are the reasons and motives, but unlikely before then, except for the continual extra-judicial statements by people close to the investigation who have been told not to talk about it but are quite happy to without a name.

Major Hasan asked for counsel, he’s got counsel; he’s a represented accused; charges are preferred; and he’s apparently in custody. So . . .

Why did the Army want to keep Major Hasan

November 14, 2009 | The Law Office of Philip D. Cave

There’s plenty of information being put out that Major Hasan had problems, not just with his ideology, but also with his provider skills. So, people ask, why would the Army want to keep him and place him counseling returning or deploying personnel, send him to Fort Hood, and prepare to deploy him. There have been several articles which explain how hard it is to get out of the military, especially if you are a medical professional who was educated at taxpayer expense. I’m not sure this is something that will be fully developed at Major Hasan’s court-martial. But this article in the Washington Post gives a general idea.

U.S. soldiers’ morale down in Afghanistan: Obstacles to getting mental health care cited in Army survey, by Ann Scott Tyson, Washington Post Staff Writer, Saturday, November 14, 2009.

Meanwhile, soldiers in Afghanistan are having greater difficulty getting help for psychological problems, for a variety of reasons, including a shortage of psychiatrists and other mental health workers, the survey showed.

Death penalty debate – more data points

November 14, 2009 | The Law Office of Philip D. Cave

Major Hasan’s acts at Fort Hood are quite appropriately being viewed as apt to impose a death penalty at his court-martial. Based on what we are seeing and hearing there seems to be little doubt that the prosecution can gain a conviction (although an insanity defense is not out of the question). Regardless, the events at Fort Hood are once again stirring the death penalty debate in general. So here is a piece about death penalty case exonerations.

This empirical study examines for the first time how the criminal system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their
wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal appeals and postconviction review poorly addressed factual deficiencies in these trials. Few exonerees brought claims regarding those facts or claims alleging their innocence. For those who did, hardly any claims were granted by courts. Far from recognizing innocence, courts often denied relief by finding errors to be harmless. Criminal appeals and postconviction proceedings brought before these exonerees proved their innocence using DNA testing yielded apparently high numbers of reversals—a 14% reversal rate. However, that reversal rate was indistinguishable from the background reversal rates of comparable rape and murder convictions. Our system may produce high rates of reversible errors during rape and murder trials. Finally, even after DNA testing was available, many exonerees had difficulty securing
access to testing and ultimately receiving relief. These findings all demonstrate how our criminal system failed to effectively review unreliable factual evidence, and, as a result, misjudged innocence.

From the introduction: Brandon L. Garrett, Judging Innocence, 108 Columbia L. Rev. 55 (2008).

Here’s a start . . .

November 14, 2009 | The Law Office of Philip D. Cave

U.S. President Barack Obama Saturday urged members of Congress not to turn the investigation into the Fort Hood massacre into "political theater."

Reports Military.com. This is a step in the right direction. Ratchet down the political rhetoric, allow the investigators to get their work done, and allow the prosecution and defense to focus on their court-martial case.

Is this unlawful influence, or just a bad idea, or . . . ?

November 13, 2009 | The Law Office of Philip D. Cave

How far should members of congress or the President, or anyone, get involved in how to prosecute Major Hasan for his acts at Fort Hood. Certainly the victims are entitled to be involved and are required to be through the Department of Defense Victim-Witness Assistance Program. The program does not give politicians or government officials a right to be involved.

Risch Urges Additional Murder Charge in Fort Hood Slayings

This article reports that at least two Congress people are getting involved seeking to influence the prosecution of Major Hasan. Are they creating fodder for various defense motions, making the prosecutions job a political one, or just plain bad form. The talk is about Article 119a, UCMJ, a product of the Unborn Victims of Violence Act (UVVA), which is an outgrowth of special interests who convinced Congress in 2004 that a fetus is a child. It’s a political issue, it was a political hot-potato then, and potentially still is, albeit there is a statute in place. I guess we should see what other pressures and special interests can get on board to help the prosecutors out, and possibly the defense in the process – I’m sure both sides will be happy for the extra help.

Change of court-martial venue

November 13, 2009 | The Law Office of Philip D. Cave

A question arises for Major Hasan and the court-martial about venue or situs or trial at Fort Hood or somewhere else. Here is the general rule from R.C.M. 906(b)(11), for a change of venue of a court-martial:

United States v. Curtis was at one time a death penalty case, but not anymore as a result of post-trial actions. Here though is the court on change of venue:

Appellant argues that the defense counsel should have asked for a change of venue because of pretrial publicity. However, pretrial publicity standing alone, no matter how widespread, is not a sufficient reason for a change of venue. As will be discussed in Issue XV, the defense is not entitled to have such a motion granted unless it is shown that such publicity has permeated the panel members. In most instances a motion for a change of venue takes place after the voir dire. But "where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it [**35] to another county…." Sheppard v. Maxwell, 384 U.S. 333, 363, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966). However, a showing of actual prejudice is usually necessary before a change of venue is granted. In this case the pretrial publicity had not so permeated the courtroom that the defense was left with promises of members to disregard what they might have heard.

Finally, a media outlet noticed a possible way out of death for Major Hasan, and avoidance of his potential for martyrdom

November 13, 2009 | The Law Office of Philip D. Cave

The Christian Science Monitor reports and makes this observation:

But emerging evidence that Hasan may have terrorist connections could alter the prosecutorial strategy, as his story would hold invaluable information for investigators. One way to get that information would be to offer Hasan a deal – such as revoking the death penalty if he’ll fill in the gaps in the investigation.

If there is validity to the potential terror information will both sides recognize it, recognize its value, and will those in power accept the likely criticism of the crowd for doing a deal? In order for a plea agreement the charges would have to be referred non-capital at court-martial. A person facing a death penalty on referred court-martial charges cannot plead guilty.

Mother to court-martial or Afghanistan; her child into custody

November 13, 2009 | The Law Office of Philip D. Cave

A number of groups are unhappy that Major Hasan has not been charged under Article 119a, UCMJ, yet for his killing of a pregnant mother and her fetus at Fort Hood. (See e.g. Pro-Life Group Asks Military to Charge Hasan) So far his court-martial charges are all the 118’s. One of the other issues that’s been discussed with Major Hasan is whether he tried to avoid going to deployment or asked to be discharged. Elsewhere, IPSnews.com reports:

U.S. Army Specialist Alexis Hutchinson, a single mother, is being threatened with a military court-martial if she does not agree to deploy to Afghanistan, despite having been told she would be granted extra time to find someone to care for her 11-month-old son while she is overseas.
Hutchinson, of Oakland, California, is currently being confined at Hunter Army Airfield near Savannah, Georgia, after being arrested. Her son was placed into a county foster care system.

So, how hard is it to avoid deployment without going AWOL?

So which – – –

November 13, 2009 | The Law Office of Philip D. Cave

So which CID agents are violating Article 92, UCMJ? And if they are lawyers on the government side, which lawyers are violating Article 92, UCMJ, and ethics rules for lawyers in the Army regarding pretrial publicity?

officials told The Associated Press on condition of anonymity because they were not authorized to speak about the case publicly.

Army Times.