Thursday, October 21, 2010

Observations from Fort Hood: The MAJ Hasan Article 32

As promised, we were able to send one of our advisors, LTC Geoffrey Corn, retired Army JAG, and current professor at South Texas College of Law to witness yesterday's hearing at Ft. Hood. Here is his report:

“Chilling.” That is how one reporter described the testimony during a recess in the Article 32 Investigation of the charges against MAJ Nidal Hasan. I have been in plenty of military court rooms, participated in or observed plenty of courts-martial, Article 32 hearings, and other disciplinary proceedings. But I have never observed anything as “chilling” as what I saw today. That one word does indeed truly capture the essence of this case.

From a military justice perspective, there are certainly some unusual aspects of this Article 32: the appointment of a military judge to serve as the Investigating Officer; the high level of security and medial presence at the hearing; an extremely modern military courtroom with lots of high-tech media support; the collective experience of the senior officers representing the parties to the trial; an accused in a wheelchair huddled in a blanket. But fundamentally, the hearing is what anyone familiar with the military justice process would expect: prosecutors presenting a streamlined version of their case; defense engaging in some modest cross-examination and using the opportunity to engage in discovery.

The process seemed extremely well managed – unsurprising, considering the Investigating Officer is a military judge and the counsel are so experienced. Both the prosecution and defense included three attorneys: a colonel, lieutenant colonel, and major for the prosecution; Mr. Galligan, a lieutenant colonel, and a major for the defense. Paralegal and victim/witness support seemed exceptional.

Major Hasan rarely showed any reaction to the evidence, and I never saw him utter a word to his counsel. He sat silently, wrapped in his blanket with his head covered. When Officer Todd testified about shooting him and then apprehending him, there was no visible reaction. Several of my students did notice him “perk up” a bit when the major who witnessed Hasan shoot Officer Munley and Officer Todd shoot Hasan testified by VTC from South Korea. Major Steve Richter testified that he watched the shooter’s engagement with police transpire – an engagement that probably saved his life. Richter recounted that Hasan was moving towards him had placed the laser sight from his pistol on the major twice, so Hasan obviously had seen him behind a van.
As Hasan approached him, Officer Munley turned a corner and confronted Hasan. Shots were exchanged and Munley went down. Hasan then approached her. According to Richter, Hasan was in a position to kill Munley, who was on the ground at his mercy. At that moment, Richter saw Officer Todd appear and engage Hasan. When Hasan was hit and went down, Richter sprinted to him and secured Hasan’s pistol based on his apprehension there might be another shooter. He tried to clear a jam and burned his hand on the weapon. Realizing other police officers might think HE was the shooter, Richter dropped the pistol and went back to Hasan to provide aid. He found a bullet entry hole in Hasan’s chest and plugged it with his finger. Someone said there might be another shooter, so Richter moved away from Hasan to regain some cover.
Military defense counsel cross-examined Richter, focusing on why he feared a second shooter. The major explained this belief was motivated by the overall chaos and the high rate of fire, but defense counsel seemed to be exploring the possibility of actually claiming the presence of a second shooter. Where this will go is impossible to predict, but as the prosecutor elicited from Richter, no other shooter was ever identified at the scene.

In addition to the testimony of Richter and the two responding police officers, other dramatic evidence presented in the last full day of the government’s presentation included the total number of shell casings recovered at the scene: 146; the number of unexpended rounds recovered from Hasan: 177; and the testimony of the CID Special Agent who identified the nine deceased victims in the SRP building. The government offered 13 autopsy reports from the Armed Forces Institute of Pathology for the limited purpose of establishing the alleged victims of the Article 118 (Murder) specifications were deceased. The defense challenged the reports, but mainly to again highlight what they assert is the improper denial by the government of their request for a government-funded pathology expert to assist in reviewing the reports. Colonel Pohl admitted them for the limited purpose for which they were offered, although he indicated on the record that the testimony had also established the identity and death of the alleged victims.

Mr. Galligan shared some of his thoughts with me during a recess. His concerns focused primarily on discovery of reports at the national level, potential disqualification of the GCMCA, his belief his client should be in a hospital and not in a pre-trial detention facility, and insufficient resourcing of the defense by the government. These are all issues he has raised with the media previously. The government shared with me some information related to Mr. Galligan’s first concern: discovery. The government has already provided Mr. Galligan 123 THOUSAND documents – all in electronic format that is easily searchable. This is in large measure the result of the efforts of SFC Beach, the senior paralegal NCO who volunteered to assume that duty when the call went out from the JAG Corps about a year ago. I had the opportunity to speak with Beach and, in my opinion, the case management system he has implemented is by far the best I have ever seen in a military trial. Furthermore, as military justice experts know, much of the information Mr. Galligan is demanding is outside the scope of pre-referral discovery and beyond the prosecutor’s authority to demand. However, it is does seem that there will be some interesting discovery motions if and when the case is referred to trial.

So, back to my original observation. I honestly did not expect the reaction I had as I contemplated sitting in on this 32 hearing. This, however, is obviously no ordinary 32. As we drove away from Fort Hood yesterday afternoon, I had a mix of emotions: shock at the contrast between the portrait of evil painted by the evidence and the accused slumped over in his wheelchair; immense sorrow for the victims of that tragic attack; equally immense respect for the two police officers who moved towards the sound of gunfire to protect the dozens of other potential victims spared by their courage; and pride in the lawyers and paralegal specialists who are collectively demonstrating to the public the integrity of our military justice system. Certainly a day I shall not soon forget.