I thought I’d post initially on the case of the United States v. Major Nadal Hasan. In the next few months, that case will begin to heat up in the courtroom as well as in the public forums. Before I begin, lets open with a few ground rules on what might become ongoing commentary by me.
First, I will attempt to avoid second-guessing the lawyers assigned to the case. This, of course, is an extremely tall order considering that there will be times when I will remark on various decisions by Major Hasan’s retained and detailed counsel. For instance, today I will discuss the open posture that the retained defense counsel adopted in the case and whether being so open with the case and his representation is advisable at this point. My goal is to never condemn. Rather, I will discuss the pros and cons of various tactical decisions.
Second, I plan to provide commentary on the proceeding itself. The acts giving rise to the court-martial are of no interest to me except that they are the subject matter. I am focused more on the nuts and bolts of criminal representation–not on the fact that murder is horrible and that what happened at Ft. Hood is a tragedy. I acknowledge that. No argument here.
Third, I have been asked several questions about military trial procedure. I intend to use this case to highlight several key parts of the military trial process that may be instructive to those with interest. For instance, what on earth is an Article 32 hearing? Don’t worry, we’ll get to that eventually.
Fourth, I have no inside information. I am not friends with the defense counsel nor am I friends with the prosecutor. I do not know them. Like many of you, I know what I know from reading media sources and the internet. The only thing that separates me from the average Criminal Defense Lawyer (CDL) is my immersion in military law for the last 6+ years. If you are looking here for breaking news, you are looking in the wrong place.
Fifth, I have never tried a death penalty case, and I have no aspirations to do so. These are few and far between in the military. I may occasionally comment on my opinion of the death penalty (I don’t like it). Also, I may analyze the economical feasibility of the death penalty (its really, really expensive). While much of the trial procedure will be similar to any other court-martial, much of it will also be distinct. For instance, the judge in the case will likely be much more liberal in the granting of continuances and other relief for the defense, and there are logical reasons for this. We will, hopefully, have a solid chance to discuss these logical reasons. However, when it comes to the death penalty, I have not “been there, done that.”
So, lets move forward.
Approximately 2 years ago, the Army had another high-profile death penalty case involving Staff Sergeant Alberto Martinez, a National Guard Soldier from New York. Martinez was stationed in Iraq for combat operations with his unit and was eventually accused of the murder of a Captain and a First Lieutenant. At his trial, he was represented by two outstanding officers and lawyers, Marc Cipriano and John Gregory. Opposing them was a prosecution team headed by a Lieutenant Colonel. His case went to a jury where evidence presented by the prosecution showed that Martinez had made statements to others about hating the two officers and wanting to “frag” them. After two days of deliberations, the jury found Martinez not guilty.
After the trial, a document was leaked to the NY Times. That document, an offer to plead guilty, showed that Martinez attempted to plead guilty to intentional murder several years prior to the trial. It is important to note that, had the offer to plead guilty been accepted, SSG Martinez faced the possibility of the rest of his life in prison. This is contingent upon his satisfying the judge that he was pleading voluntarily and with full knowledge that he committed the crimes. Yet, the commanding general of Ft. Bragg did not accept the offer to plead. Therefore, the case moved forward for the next two years to the eventual acquittal.
Martinez is a case I will reference several times because it is a recent example of death penalty cases in the Army. Today, however, I mention Martinez for a different reason. Namely, his attorneys never made public their strategy or documents. As far as I know, they never made a single mention of the case to anyone outside of the defense team.
I agree with their strategy wholeheartedly. While I can see instances where publicity and disclosure may assist in defense, most of the time such disclosure is unnecessary and ill-advised. For me, one of the greatest assets I have as a defense counsel is the ability to keep my mouth shut. In most cases, this drove the prosecution nuts. Additionally, it forced them to prepare for a variety of contingencies, rather than narrowing on just one.
However, Retired Colonel John Galligan (retained counsel) now devotes a majority of his blog/website to Hasan issues. He even posted a number of court documents for public consumption. Additionally, he appeared on major networks to discuss his client’s case. If you continue to scroll-back and read many of the posts dating from earlier this year, you will see a fairly candid discussion about the death penalty, delays, requests for discovery, and other strategies. (please, if you have the time, scroll back and scan as much as possible). He rants about a variety of things, sharing his thoughts freely.
I cannot help but wonder what his detailed (assigned) military defense counsel thinks of the blog.
I will not say he is screwed up. Perhaps he has a powerful strategy and plan to use the blog/publicity to strongarm the government into a sweetheart deal. I just fail to see it. It seems that others share my concern.
For now, ponder the use of the press and a blog. If we are to use those mediums, they must clearly help our client.
Will it help Hasan?
Stay tuned. In October, we may get to hear more as we move forward to the Article 32 investigation.