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2013-07-18

Jury selection completed in Hasan trial, Opening statements to begin August 6

By Judith Pannebaker BCC Editor

It was a long time coming but the trial of United States Army Maj. Nidal Hasan began on Tuesday, July 9, with jury selection. That phase was completed on Tuesday, July 16 - much sooner that previously estimated. Jury selection had been expected to last a month.
Hasan, a former Army psychiatrist, is accused of killing 13 soldiers and wounding another 32 in a shooting rampage on Nov. 5, 2009, that lasted approximately 10 minutes. Witnesses interviewed at the time of the incident said the gunman shouted, "Allahu Akbar" - Arabic for "God is great" - before opening fire in a crowed processing facility. Now paralyzed from the chest down after being shot by Fort Hood law enforcement officers during his capture, Hasan, 42, is confined to a wheelchair. If convicted, he faces the death penalty or life in prison without parole.
However, the 13 jurors - nine colonels, three lieutenant colonels and one major - impaneled must reach a unanimous decision before the death penalty can be imposed. There are two women on the panel. As per the military justice code, all jurors had to be of a higher rank than Hasan, meaning colonels, lieutenant colonels and majors with more time in service than the defendant.
According to reports, more than 120 officers were gleaned from Army posts across the country to make up the jury pool.
Potential jurors were not in the courtroom when Hasan said earlier, "I don't take any pride in wearing this uniform. I think it represents an enemy of Islam." At that time, he also admitted to being the shooter.
When the jury selection began, both Judge Col. Tara Osborn and government counsel posed general questions to the potential jurors. However, Hasan, who is now representing himself, asked no questions. During the first go-round, six officers were excused for cause, and the remaining 14 panel members underwent more specific questioning by both sides on July 10.
On July 9, Osborn reprimanded Hasan for violating a court order by releasing documents to the media. Specifically, she noted that Hasan had leaked his "defense of others" strategy to the Killeen Daily Herald.
Osborn indicated that repeated violations of court rules could result in Hasan's former defense attorneys being reinstated, jeopardizing his ability to represent himself.
In June, Osborn rejected Hasan's request for a "defense-of-others" approach, noting that the defense failed as a matter of law. In plain parlance, defense of others implies that a killing was necessary to prevent immediate harm or death of others, rather than of oneself. In this case, Hasan, an American-born Muslim, wanted to base his defense on his desire to protect the Islamic Emirate of Afghanistan and the leadership of the Taliban to include Mullah Mohammad Omar.
In viewing submissions made by Hasan, which, according to a Fort Hood press release, "were presented in a light most favorable to the defendant," Osborn decided that no evidence supported an immediate threat by anyone at Fort Hood to anyone in Afghanistan. She, therefore, ruled that the soldiers killed and wounded at Fort Hood posed no immediate threat to Taliban leaders in Afghanistan.
Osborn also ruled that as a uniformed soldier in the US Army, Hasan had no justification to kill other US soldiers. She refused to allow Hasan to present any evidence or argument relating to the defense of others, making short shrift of his Hail Mary play.
During a hearing in early June, Osborn had also denied Hasan's request for a three-month continuance of the court martial to prepare his defense of others strategy.
During a pretrial hearing on Tuesday, July 2, the judge also denied Hasan's request for a three-day continuance while he considered retaining former Attorney General William Ramsey Clark as a defense attorney. Clark, who served as attorney general under President Lyndon Johnson, has more recently offered legal defense to controversial figures such as Charles Taylor, Slobodan MiloŇ°evi√¶, Saddam Hussein and Lyndon LaRouche.
Clark has since declined to represent Hasan due to Osborn's shutdown of Hasan's defense-of-others maneuver.
The judge explained her denial of a continuance regarding the Clark matter, noting that Hasan had seven days before trial began to determine whether he would hire a new lawyer to assist in his defense. Osborn also cited the multiple changes Hasan had made in his defense counsel, having already been represented by John Galligan - in addition to his current stand-by defense counsel. After firing all his defense attorneys, Hasan is acting pro se.
Earlier, Osborn had issued a written order that defined the roles and responsibilities of standby counsel, which included providing Hasan with all unclassified discovery materials, attending all sessions of court and preparing to assume the role of defense counsel should the court order it or should Hasan request it. Standby counsel must also assist Hasan with legal research and procedural matters if the defendant requests assistance.
Both Lt. Col. Kris Poppe and Maj. Joseph Marcee will remain at the table with Hasan and Lt. Col. Christopher Martin will remain in the gallery behind the bar. Previously, Hasan had specifically requested that Martin be removed from the defense team; however, Osborn declined to rule out Martin's participation entirely.
Additionally on July 2, Osborn also heard multiple motions, including those previously considered by Judge Gregory Gross. Gross was removed from the trial after an Army appellate court ruled his decisions had given the "appearance of bias."
Hasan's motions were related to prosecutorial misconduct, disqualification of the Staff Judge Advocate, a set aside of Congressional legislation and an objection that the trial was being tried as a capital case without having first been taken before a grand jury. Osborn denied all of Hasan's motions.
Also on July 2, after Hasan refused to enter a plea, the court entered a "not guilty" plea on his behalf.
Opening statements are set to begin on Tuesday, August 6.