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2013-02-14

Death sentence still on table for Hasan

By Judith Pannebaker BCC Editor

Despite defense attempts to have it tossed, the death penalty remains on the table for the accused shooter in the 2009 Fort Hood massacre.
In a nearly five-hour hearing, the military trial judge in the case of the United States vs. Maj. Nidal M. Hasan, reconsidered several defense motions previously ruled on by replaced Judge Gregory Gross.
On Wednesday, Jan. 30, after Hasan's defense attorneys challenged the procedures set forth in Uniform Code of Military Justice, Judge Col. Tara Osborn upheld the constitutionality of the process by which the military determines a capital case.
In effect, her ruling leaves the death penalty on the table should Hasan, a 42-year-old American-born Muslim, be found guilty in the November 2009 Fort Hood shooting spree. The rampage left 13 people dead and 32 others wounded. The incident remains the worst shooting that ever occurred on an American military installation.
By removing the death penalty in the case, Osborn could have paved the way for a possible guilty plea. However, a guilty plea is not permitted in a military court if the defendant faces a possible death sentence.
Osborn also heard arguments from both sides regarding whether Hasan should receive - at government expense - experts on media analysis and interaction with crime victims. Osborn upheld the previous decisions, ruling against the defense on employing both experts at government - i.e., taxpayers' - expense.
Also addressed during the January pre-trial hearing was whether Osborn should modify or lift protective orders issued on Department of Defense and Department of the Army investigations into the Fort Hood shooting. Osborn said she would offer her decision on this matter in the near future.
Possibly the only item not discussed in the protracted hearing was Hasan's facial hair. The decision to shave or not to shave the Army psychiatrist's increasingly scraggly beard - grown in defiance of army regulations - will apparently not be taken up by Osborn. In fact, the judge pointedly noted that her court lacked even the authority to stop the Hasan's command from ordering him to shave his beard.
In an article published in the Los Angeles Times, Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary's University law school in San Antonio, commented on Osborn's observation. Describing the judge as "asserting herself with the latest ruling," Addicott noted, "... she was likely to keep the case moving."
He added, "That shows she's not going to fall into the same trap as the previous judge and get distracted by collateral issues such as the beard."
Osborn set the next hearing date for Feb. 27, which, she said, could last up to three days. Issues slated for litigation at that time include:
• a possible change of venue
• whether a new jury panel should be selected
• circumstances under which prosecutors may present aggravating circumstances during presentencing proceedings.
Osborn is also expected to reconsider the admissibility of Evan Kohlmann's expert testimony. An international expert in terrorism, Kohlmann, 34, has served as an expert witness for the United States government in 17 terrorism cases in this county and nine abroad. This, according to the New York Magazine, makes Kohl "the most prolific such expert in the country."
In August 2012, Hasan's lawyers had challenged the testimony of Kohlmann, which had been approved by Gross. Additionally, the former judge had denied defense attorneys access to Kohlmann's personal library.
During the January hearing, Osborn indicated the Hasan's trial might not take place until this summer. Originally set for March 2012, defense counsel successfully sought continuances in June, August and October of 2012.