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2013-05-09

Hasan's court-martial to begin May 29

By Judith Pannebaker BCC Editor

General court-martial proceedings in the case of United States vs. Maj. Nidal M. Hasan are finally scheduled to begin - with a caveat, of course. Hasan's defense attorneys' have requested yet another continuance - this one until Sept. 1.
They have asked for the appointment of a media analysis expert, as well as setting aside the capital referral, among other requests. US Army Judge Col. Tara Osborn will rule on these and other motions during a Thursday, May 9, pre-trial hearing.
If Osborn denies the defense petitions, jury panel selection for Hasan's trial will kick off at 8 am, Wednesday, May 29, in the Lawrence J. Williams Judicial Center at Fort Hood near Killeen. A panel is the military equivalent of a civilian jury.
July 1 start date?
Initial charges were filed Nov. 12, 2009, against the former Army psychiatrist for the Nov. 5, 2009, shooting incident at Fort Hood. The charges included 13 specifications of premeditated murder - in violation of Article 118 of the Uniform Code of Military Justice. On Dec. 2, 2009, 32 specifications of attempted premeditated murder were added.
Jury panel selection can take as long as four weeks. After the jury has been selected, there will be a four-day "waiting period" to allow the witnesses to report to the post. Testimony will begin on the fifth day after jury selection is complete - tentatively set for July 1.
During a pre-trial hearing last month, US Army Judge Col. Tara Osborn offered half a loaf to both defense attorneys and prosecutors.
She granted a defense request to limit testimony by terrorism expert Evan Kohlmann. Osborn ruled that government prosecutors may refer to Kohlmann for "testimony regarding contextual analysis and definitions, but not for "profile testimony."
Simply put, Kohlmann may offer characteristics of a terrorist, but he may not testify as to whether Hasan displays those characteristics.
Prosecutors argued that Kohlmann's testimony would be used to show motive for the attack. Defense attorneys objected because Hasan has not been charged with terrorism.
No 'terrorist' designation
Repeatedly, federal officials have refused to declare Hasan a "terrorist," pointing out that there is no crime of "terrorism" under the Uniform Code of Military Justice. To the chagrin of many, they contend that simply charging Hasan with murder will lead to the same outcome in the courtroom.
In an interview with WOAI News Radio, retired US Army Lt. Col. Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary's University School of Law, in San Antonio, said that the ruling would not prevent prosecutors from putting Hasan's history before the jury.
"The expert witness has to indicate what prompted Hasan to commit these murders - the jury wants to know that," Addicott said. "[Kohlmann] can certainly say that [Hasan] went to the jihadi web sites, that he was in communication with Anwar al-Awlaki."
Al-Awlaki connection
Regarding Hasan's communications with the late al-Awlaki, Osborn is expected to rule during Thursday, May 9, hearing, on a defense request to suppress emails and records of conversations between Hasan and other Muslims that allegedly discussed "the rights or duties of Muslims to violently resist persecution of Muslims."
According to US government officials, al-Awlaki, a former imam at a mosque in Falls Church, Virginia, served as a senior talent recruiter and motivator involved in planning terrorist operations for al-Qaeda. A predator drone strike in northern Yemen killed al-Awlaki in September 2011.
Interestingly, the online magazine, Inspire, was thought to be the work of al-Awlaki. His editorial, entitled "May Our Souls Be Sacrificed For You," appeared in the first issue. In the op-ed, al-Awlaki called for attacks against everyone who had slandered the Prophet Muhammad, including targets in the West. According to reports, suspected Boston Marathon bombers Tamerlan and Dzhokhar Tsarnaev supposedly learned their terrorist skills from Inspire.
Premeditation is key
If found guilty of premeditated murder and premeditated attempted murder, Hasan, 42, a former Army psychiatrist, could face the death penalty or life without parole. However, under the Uniform Code of Military Justice, proving the deadly shooting rampage was premeditated remains the key to a potential death sentence.
During the pre-trial hearing, Osborn denied a defense motion to limit rehabilitation of panel members by prosecutors during voir dire, questioning of prospective jurors designed to determine bias. However, expressing opposition to the death penalty does not automatically disqualify a juror.
An attorney may attempt to "rehabilitate" a juror by asking questions as to whether - personal convictions notwithstanding - he might consider the death penalty. On the other hand, a juror who expresses exorbitant support for the death penalty - and who would otherwise be struck from the panel - may be "rehabilitated" should he state that he is willing openly to consider life imprisonment.
'...chase them in dark'
Also during the April hearing, Osborn deferred ruling on whether she would require the government to produce defense-requested witnesses at the next hearing.
Lead prosecutor Colonel Mike Mulligan indicated that he would file a motion compelling Hasan's relatives and associates to appear in court, saying, "I intend to chase them around in the dark and have them served [with a subpoena]."
Prosecutors also sought to learn more about defense witnesses, and the judge instructed defense lawyers to prepare a synopsis of what their witnesses will say to be shared with prosecutors.
The ruling apparently did not sit well with lead defense lawyer Lieutenant Colonel Kris Poppe, who said, "They've been interviewed by the FBI - we know what they will say. The government just wants to see our case."
Before the hearing concluded, prosecution and defense argued about the relevancy and admissibility of different evidence as related to the alleged motives and planning and preparation of the accused. Osborn also delayed her decision on these matters.

(Sources: http://en.wikipedia.org/wiki/Death-qualified_jury and dictionary.law.com)