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2012-12-06

Hasan trial - back to square one?

Special to the Courier

Don't look for the court martial of United States Army Maj. Nidal M. Hasan to resume any time soon. The 41-year-old Hasan, an American-born Muslim, has been charged with 13 counts of premeditated murder and 32 counts of attempted murder related to a 2009 armed attack at Fort Hood's Soldier Readiness Processing Center near Killeen. If convicted, he faces the death penalty.
Although the trial was originally scheduled for August, the proceedings have been on hold while motions relating to Hasan's beard and the alleged bias of the presiding judge have wended their way through the appellate process.
During a series of pre-trial hearings, military judge Col. Gregory Gross ruled that Hasan was to appear in court clean-shaven. Beards violate Army regulations, but sideburns and mustaches are allowed. Additionally, Gross had indicated he would have Hasan forcibly shaven to enable the defendant to attend his own trial in person as opposed to watching it via closed-circuit television. Gross contended that the beard disrupted the proceedings.
Hasan characterizes his beard an "expression of his Islamic faith." Although clean-shaven the day of the shootings, the defendant sported facial hair during a court appearance last June.
Apparently appellate judges agreed with the argument presented by Hasan's defense attorney, Lt. Col. Kris Poppe.
In an opinion dated Monday, Dec. 3, the highest military appellate court ordered the nearly unprecedented removal of Gross for the "appearance" of bias. As chief circuit judge at Fort Hook, Gross had appointed himself to hear the case against Hasan.
In their 10-page opinion, judges on the Washington, DC-based Court of Appeals for the Armed Forces (CAAF) said that because of a variety of factors, a reasonable person "would harbor doubts about the military judge's impartiality."
Although their opinion stopped just shy of accusing Gross of bias, the court rather ordered the judge removed due to the "appearance of bias." As the opinion stated: "To an impartial observer, the judge had allowed the proceedings to become a duel of wills between himself and (Hasan) rather than adjudication of the serious offenses with which (the defendant) is charged."
Additionally, the appellate judges vacated Gross' order to forcibly shave Hasan as well as six previous contempt convictions issued against the defendant because of his refusal to shave his beard. On half dozen separate occasions, Gross held Hasan in contempt of court, resulting in fines of $6,000.
As the appellate ruling stated: "As an internal matter, the command, and to the military judge, has primary responsibility for enforcing grooming standards." The judges also ruled there was insufficient evidence that Hasan's beard "materially interfere with the proceedings."
However, the appellate court did not rule on Hasan's right to wear a beard under the Religious Freedom Restoration Act. In 1993, the Religious Freedom Restoration Act was passed to curtail laws that might prevent a person from exercising his religious rights.
The judges opined: "We need not and do not decide if and how Religious Freedom Restoration Act might apply to (Hasan's) beard. Should the next military judge find it necessary to address (the defendant's) beard, such issues should be addressed and litigated anew. "
Late Tuesday, Dec 4, it was announced the newly appointed trail judge would be Kara Osborn. However, information about her military career was not forthcoming.