Curb Your Enthusiasm: Hasan’s October Hearing

Major Nidal Hasan will finally face a judicial proceeding. The man who stands accused of the horrible, faith-fueled killing spree at Fort Hood will appear before a judge and answer for his crimes. Right?

Wrong. For those of you feeling enthusiastic about this important step in the process, curb it. This will be particularly anticlimactic for everyone involved. In fact, I’ll do you the courtesy of showing exactly what will happen. I’ll be your military law Nostradamus.

Here are the highlights:

1.  Witnesses will appear and talk about the horrible things they saw and experienced. They will say that Hasan did it. They might point at Hasan at the request of the military prosecutor.

2. John Galligan, Hasan’s defense attorney, will question the government witnesses at length. He will probe for details, details, and more details.

3. Major Hasan will remain silent in his chair, speaking only when addressed by the Investigating Officer regarding his rights.

4. At the end, there will be no immediate decision, and most people will wonder what just happened. Those present will all have a glazed-over look on their faces.

Not exactly the latest episode of “Law and Order,” is it? Contrary to what “A Few Good Men” showed us, most judicial proceedings are boring, tedious, and confusing to the average bystander.

Boring and tedious? Yes. Important and necessary? Absolutely.

This step is called an Article 32 investigation (named appropriately after Article 32 of the Uniform Code of Military Justice). It is generally equivalent to a civilian Grand Jury or Preliminary Hearing. The point of the proceeding is to determine whether reasonable grounds exist to take the case to a General Court-Martial (a felony trial).

At a Grand Jury, the accused is not present and the prosecutor presents the jury with state evidence to demonstrate that probable cause exists to move forward to trial. If the Grand Jury agrees, the case moves forward on the indictment.

At a Preliminary Hearing (usually done in areas and states that lack the funding or caseload to keep a Grand Jury empanelled), an actual Judge presides over the matter, hears the government evidence, but also allows the defense to be present and analyze the evidence.

At both a Preliminary Hearing and a Grand Jury, the standards are low (Probable Cause (also called Reasonable Grounds). Additionally, the rules for introducing evidence are weaker than at trial. This is largely due to the fact that the consequences of the Grand Jury/Preliminary Hearing are less than those at an actual trial. Life as a prosecutor is much easier.

The decision of the Grand Jury/Preliminary hearing is binding on all parties. Without a proper indictment from one of the two, a trial may not move forward.

At a military Article 32, a commissioned officer (Second Lieutenant or above (but usually a Major or above)) presides over the matter. The commissioned officer need not be a lawyer or judge, and they are an impartial reviewer of any relevant facts of the case. For Hasan, an actual Military Judge will preside over the hearing, but this is only because of the sensitivity and attention given to this particular case. The standards and procedures remain the same.

There are few rules of evidence, and generally all relevant matters are admitted to include police reports, witness statements, and anything else reasonably pertinent to the accusations. The government presents their case, and then the defense has an opportunity to cross examine any witnesses, view other evidence, and present evidence.

Following the hearing, the commissioned officer prepares a report and submits it to both parties along with the commander of the accused. The report contains a recommendation as to whether the trial should move forward. This is only a recommendation. If the officer recommends that the matter not go to trial, the commanding general may send it to trial anyway.

The Article 32 usually serves one of two functions for the defense. First, the defense may attempt to prevail in the proceeding by securing a recommendation from the officer to not move to trial. Though it is only a recommendation, it certainly is a positive step toward no conviction.

Second, it serves as an opportunity to cross examine witnesses and conduct a review of the evidence in a sworn, recorded proceeding. The hearing may be waived (voluntarily surrendered by the accused), but this does not normally occur unless defense counsel and client perceive a tactical advantage in doing so.

As it pertains to Major Nidal Hasan, the Article 32 serves as an opportunity to conduct discovery. Given the oodles of eyewitness testimony, it seems overwhelmingly unlikely that Hasan or his counsel, John Galligan, believe they might secure a recommendation against trial. Plus, it is also unlikely they would want to reveal any of their trial strategy knowing that a felony trial is all but assured.

So, Galligan will likely utilize this opportunity to get sworn testimony from all key witnesses and pump them for details.

Members of the public often overestimate the significance of an Article 32. In a murder trial at Fort Leonard Wood where I was Senior Defense Counsel, the Article 32 garnered more of an audience than the trial itself. Largely, this occurred because of the fresh excitement for the case coupled with false expectations of the hearing itself. Many were genuinely disappointed when I did not have my client make a statement. I listened to the govnerment evidence, cross examined their witnesses, and presented nothing in rebuttal. With my client’s confession, presenting any evidence would be futile and potentially damaging to my case. At the same time, I gained nuggets of information that supported a motion to throw-out his confession.

At every Article 32 I’ve ever conducted, there were no “You can’t handle the truth!” moments. There were no fireworks, explosions, or anything else that the movies and television show us. Always remember that our judicial system is not designed to sustain high television ratings.

So, curb your enthusiasm and save it for the actual trial in a year or two. If you want to know what will happen at the Article 32, go back to the beginning and read my predictions.

If you need excitement, go and rent “A Few Good Men” and learn tons about how the military justice system does not work.