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.