Questions About Hasan

I was flippant the other day in my assessment of the Hasan trial. One of my more dedicated readers called me for it and was right in doing so. They posed a series of questions which were good, and I’d like to address them here. While I still think the trial will have little educational value for trial lawyers, the questions deserve a response.

1. Is there Unlawful Command Influence in the Hasan case. I haven’t read anything that implies a credible allegation of UCI, nor do I have knowledge that defense brought a motion for the same. Generally, if there is UCI, then there will be some remedy (with the nature of the remedy depending on the specifics and severity). If there isn’t, then nothing. The problem with military sexual assault cases is that the POTUS spoke directly to possible results at trial. That’s a big no-no.

2. What about that $300,000ish that Hasan was paid pending trial? While awaiting court-martial, and individual is presumed innocent. While they are presumed innocent, they are entitled to full pay and benefits. Severance or reduction in pay is considered a punishment, which can only happen after someone is found guilty pursuant to legal authority. Could the victims (or their estates) get a piece of this? Maybe. This crosses into the realm of personal injury (an area of law in which I am woefully incompetent). Once the money is paid to Hasan, the government loses control of it (as the Army has no jurisdiction over individual banks). A fine can be adjudged at court-martial, but I’m not sure how or if this would be of practical assistance to the many victims. I’m sure some smart PI guy or gal has already looked at this, but reading about cases where a civil case is coupled with criminal responsibility, it seems that most lawyers want to (or must) wait until the criminal proceedings are complete (think OJ). Unfortunately, Hasan receiving pay and benefits is just something that will be distasteful to most casual observers. Congress is considering (last I read) something that might suspend pay for individuals accused of certain serious crimes. Though, I do not see this as a realistic change to current law, and it certainly will have no bearing on Hasan. Finally, when it comes to accused being paid pending trial, I’m hardly an unbiased party given my current vocation. So, take my comments here with appropriate grains of salt.

3. Why must the victims in this case be forced to testify and be subject to Hasan’s cross examination? First, we cannot escape the confrontation clause. That is just a reality (sometimes unpleasant) that will always be a part of our criminal jurisprudence. As for testifying via remote means, Rule for Court-Martial 702(b) states:

Each party is entitled to the production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary…

Exceptions are made regarding interlocutory (motions) witnesses, but not for testimony to determine guilt or innocence. Of course, the accused can waive personal appearance by any witness. Additionally, there are provisions for remote testimony for child victims/witnesses, but the government has the burden to prove that such means are necessary.

Update: Now, if Hasan were permitted (and chose) to plead guilty, then there would be no merits case, and the witnesses/judge would have the more liberal discretion afforded by pre-sentencing rules. However, the laws, as passed by Congress, prohibit a guilty plea if the death penalty is on the table. So, the merits portion must occur along with the more stringent rules on confrontation.  (Thanks to Mike Navarre at CAAFLog for reminding me of this.)

4. Workplace violence vs. terrorism. I honestly do not feel qualified to speak to this. I will say that I see this as a case of a religious fanatic nutjob doing something horrible. Though, I suspect the this is a function of how much coordination he made with organized terrorist organizations and how much is simply him listening to the voices in his head.

5. Medals for the victims. Let me preface this by saying a couple of things. First, I believe our military is far too liberal with the awarding of medals, devices, and assorted doo-dads. Second, most people I know who receive medals (myself included*) find them to be a generally unsatisfying addition to a sock drawer. Having said that, I think those who acted heroically and commendably on that day deserve recognition. For those who were injured on that day but did not or could not act further, the obvious question becomes whether they are eligible for a Purple Heart. While I’ve only researched this in a very superficial manner, the consensus seems to be that it may only be awarded to individuals who are in a combat zone. At the present time, no areas of the continental US are considered combat zones.

Knowing this, I have no doubt that all involved will be recognized, provided with appropriate benefits, and every attempt will be made to make them “whole.” It just may not be in the form of a medal.

*Note: While I have received medals, they were the occasional medals that are awarded in due course for performing one’s job. While I am proud of some of the devices I earned, I never received an award as a result of heroism, combat duty, or something out of the ordinary. For me, the pay and benefits were thanks enough.


3 thoughts on “Questions About Hasan

  1. You called it. It is “Maury Povich from Hell” right now, since the judge needs to rule on the backup attorney’s objection that Hasan isn’t adequately defending himself. What’s another couple decades…?

    1. Regarding UCI – if Obama thought it was dandy to comment on sexual harassment in the military, intrude into the Zimmerman debate, and call the Boston bombings ” terrorism”…I guess my question is why the eff hasn’t he commented on this massacre? ( I guess he read your column admonishing him, and took it to heart.)

    2. The $300,000 interests me not as booty for victims! If a police officer was accused of a serious crime like this, he or she would be suspended without pay. This is taxpayers’ money, and some sort of escrow account -at least- seems more logical than letting Hasan send his pay to terrorists if he wants.

    3. Why can’t they just convict him sequentially of murder, seeking the death penalty on each one? It would be quicker, it would put fewer victims through the trauma of trial, and the chance of error would be less. The State often proceeds on a single indictment while keeping two fistfuls as backup. Is a mass killing necessary for the death penalty in the military? Why this giant, unwieldy, circus?

    4. Well, wasn’t an insanity defense rejected? There’s no doubt Hasan communicated with the American iman our government killed with a drone, and with no due process. This is pretty danged blurry – if 9/11 was terrorism, and the Boston bombings were terrorism, how is this not terrorism? Maybe all killers are prima facie crazy. In which case, drones would be a dandy, emotionless solution ( unless the drone operators who go home at 5 start thinking about their day job).

    5. Medals. Hey, they were in the military. So, medals probably meant something, just as the flag they hand over at Arlington means something. One who gives her life to save another soldier is valorous. The ” no combat zone in the continental U.S.” argument – see 4.

    My personal feeling is that Hasan was a loser in life, he was a loser at work ( and about those promotions…!), and, as so many losers do, he decided to make himself a Big Deal. He was planning a massacre of unarmed soldiers and suicide by cop. He failed.
    God forgive me, I’m glad he’s crippled, wearing adult diapers…and I hope he is in constant, excruciating pain. But, hey, that’s just me.

    You’re very kind to do an additional post. I’m starting to feel we are glancing into a dark void here, so thanks; enough.

    I do not and never will understand the military. I wish it was like that Australian general in that clip you posted. I really do!

    • No problem.

      1. Obama’s UCI was a result of him commenting on an issue that has great political ramifications and has garnered hours upon hours of time in congressional debates/committees. Hasan is one case where a religious nut committed murder. Sexual assault has been deemed an epidemic that requires a fundamental shift in military justice. Hasan is one case. Big difference.

      2. So long as someone is presumed innocent in the military, they will continue to receive pay and benefits. This will remain until congress changes the current law.

      3. The military justice process favors the joinder of offenses, not severing them. The comment to RCM 601(e)(2) very succinctly states “Ordinarily, all known charges should be referred to a single court-martial.” That sums the view of every properly-trained military judge.

      4. I think the answer is a bit more complicated than that, but I do know decisively that neither you or I know all of the facts necessary to make a definitive and complete judgment.

      5. Medals are a slippery slope, and they aren’t as meaningful as you think they are.

      I’ll close with two thoughts.

      First, one case is never an adequate reason to fundamentally change laws, procedures, and rules. Time after time, we learn this the hard way.

      Second, you are personally invested in this case. I understand and respect why this is so. For this reason, my dispassionate answers will never completely sate your thirst for an overwhelmingly positive outcome for those who were tragically and personally impacted by the actions of a religious nut.

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