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Defense Seeks Delay In Fort Hood Shooting Case

Maj. Nidal Hasan i

Maj. Nidal Hasan, the U.S. Army psychiatrist suspected of killing 13 people and wounding 30 in a shooting last November at Fort Hood, Texas, is shown in a photo provided by the U.S. Government Uniformed Services University of the Health Sciences. Getty Images hide caption

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Maj. Nidal Hasan

Maj. Nidal Hasan, the U.S. Army psychiatrist suspected of killing 13 people and wounding 30 in a shooting last November at Fort Hood, Texas, is shown in a photo provided by the U.S. Government Uniformed Services University of the Health Sciences.

Getty Images

A military hearing opened Tuesday to determine whether the case of the man accused in the killing of 13 people last year at Fort Hood, Texas should go to trial, with the investigating officer quickly adjourning the proceedings before any witnesses were called.

Shortly after the hearing for Maj. Nidal Hassan began at Fort Hood, Col. James L. Pohl, a military judge acting as investigating officer in the case, said Hasan's defense team needed to explain in writing its request for a delay until Nov. 8. Pohl said he will consider the request when the hearing resumes 9 a.m. Wednesday.

Hasan, 40, is accused in the Nov. 5, 2009 shooting rampage at Fort Hood that killed 13 people and wounded 30 others. It was the worst mass shooting at an American military base.

"We're not operating on a time limit or clock," Pohl said. "We've got to protect everybody's right. I've got to make a record."

The Court Martial Process

  • An Article 32 hearing, which is the military equivalent of a preliminary hearing, is held.

  • At the end of hearing, the investigating officer recommends whether to convene a court martial, whether the death penalty should be considered and/or if a board should be convened to determine the mental fitness of the accused.

  • The general acting as convening authority decides whether to approve the recommendation.

  • A military panel is selected to act as jury. If the death penalty is sought, at least 12 officers senior to the accused must be seated.

  • After the verdict and sentencing, the convening authority has the option to overturn the conviction or reduce the sentence.

  • An appeal goes to Army Court of Criminal Appeals, then possibly Court of Appeals for Armed Forces (consisting of five civilian judges), then possibly the U.S. Supreme Court.

Tuesday's delay highlights what is likely to be a long and complicated process as Hasan's case wends its way through the military justice system.

The hearing could take weeks with survivors of the Fort Hood shooting and other witnesses to be called and physical evidence to be examined, but the outcome –- a recommendation for a general court martial — is "virtually certain" said Michelle McCluer, executive director of the National Institute of Military Justice at Washington College of Law.

"The big thing is whether it's referred as a capital case and that, too, is almost guaranteed in this case," said McCluer, who has served as an Air Force judge advocate.

The other issue is whether the hearing will trigger a recommendation that Hasan should be evaluated by a board to determine if his lawyer, retired Army Col. John Galligan, could pursue an insanity defense.

The San Antonio Express-News quoted Galligan as saying that if the panel issued a report saying Hasan had "a realistic mental responsibility issue, we could be talking about the possibility of an acquittal."

But McCluer thinks that's unlikely.

"When a 'sanity board' is done, the mental health officials conducting the inquiry will often say 'yes, this person does suffer from a mental problem, but they still understand right from wrong and are able to assist in their own defense," she said.

If that happens, McCluer said, "it's pretty much game over for the sanity defense."

Philip Cave, an attorney who deals exclusively with military law and security clearance law issues, agrees that the sanity defense is "not terribly common, but you do see it in a few cases."

Cave said that with 13 dead, 30 wounded and Hasan himself paralyzed from the chest down after being shot by Fort Hood police officers during the attack, the defense's options are limited and it's "pretty clear that his defense has to be about sanity."

The recommendations from a post-hearing report prepared by the investigating officer then go to a convening authority, who McCluer says is likely to be Ft. Hood base commander Lt. Gen Robert Cone. He would then decide whether a court martial is warranted and whether the death penalty should be considered.

At some point, the issue of Hasan's Muslim religion and his alleged connections to radical Yemeni imam Anwar al-Awlaki will likely come up, but that is more likely to be an issue in the sentencing phase, if that occurs, McCluer said.

If Hasan's case does go to a general court martial with a recommendation for the death penalty, his fate will lie with 12 or more officers of equal or higher rank.

While Cave says "there's an element of skepticism" in military panels, they tend to be "smarter, more educated and with more experience" than civilian juries.

"In general, (panel) members try their best to understand their role and come to a fair decision," Cave says.

One way in which a general court martial deviates from a civilian trial is that those jurors can ask questions of anyone on the stand, McCluer says, adding that "sometimes (the panel) will go a place that the counsel didn't go."

To impose the death penalty, a military panel must be unanimous.

A guilty verdict at a court martial would trigger an automatic appeal, first to the Army Court of Criminal Appeals, then possibly to the Court of Appeals for the Armed Forces – presided over by five civilian judges. In very rare cases, cases can move from there to the U.S. Supreme Court.

Cave points out that many military death penalty cases are overturned on appeal and that the last such execution carried out was in 1961, when Army Pvt. John A. Bennett was hanged after being convicted of rape and attempted murder.

The Associated Press contributed to this story.

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