Army murder case prepared for special audience

FN Herstal 5.7 x 28 mm single action semi-automatic pistol

Ft. Hood – The judge and prosecutors are setting the stage for an extended run of a very special play that will be put on for the benefit of a very small audience, the jurors who will decide on the guilt or innocence of a man accused of brutally murdering 13 soldiers while attempting to murder an additional 32.

The rule about finding a defendant guilty based on evidence that leads to the conclusion beyond a reasonable doubt is the same in military courts as in civilian venues.

Evidence beyond a reasonable doubt may be either direct, such as an observation that rain is falling, or circumstantial, which is clearly observable evidence that would lead a finder of fact to conclude that it must have rained because there is a lot of water standing in ditches and ruts – everywhere. As in reality, one may rely upon a combination of the two.

From there, the rules governing a conviction on the facts presented in evidence and testimony in military courts are vastly different – except for one.

To sentence an accused murderer to the death penalty, jurors must first come to a unanimous decision of guilt.

A service member may be convicted of murder – or any other offense - by a two-thirds majority vote of a court martial panel, when capital punishment is not the mandatory punishment for murder, according to a Supreme Court interpretation of the Uniform Code of Military Justice and Title 10 of the U.S. Code.

If the sentence is to be life without parole or a sentence of more than 10 years, three-quarters of a 12-member jury panel must agree on the sentence.

As in civilian courts in Texas, there must be at least one alternate juror chosen. This member of the panel sits through the entire trial until the jury is charged by judge as to what their findings must be in order to reach a conviction.

That's why the judge in the capital murder trial of ex-Army psychiatrist Maj. Nidal Malik Hasan is seating a minimum of 13 jurors and as many as 16 to serve on what is expected to be a protracted proceeding.

Said Col. Tara Osborn Monday morning, “I expect this trial to last several months. It may last as little as one month.” She then read a list of more than 100 persons who are expected to be called as witnesses.

Just like the civilian form of a capital case, if the jurors vote to convict, there is a second phase for sentencing.

The Supreme Court gave the opinion in Rocky L. Reliford v. United States that “The first vote concerns the question whether the government has proved that the accused committed the charged offenses, whereas the vote on sentencing requires the panel members to decide how severely the defendant should be punished.”

The judge is at pains to determine if the panel members have any preconceived notions as to the defendant's guilt, or if they feel someone so charged automatically deserves the death penalty.

The main concern is if a finder of fact is able – or “death penalty qualified” - to consider the imposition of the ultimate penalty after rendering a fair and impartial verdict as to guilt.

She has admonished the panelists to not discuss the matter with anyone – even among themselves – and not to consult the law in any way other than at the direction of the Court. They must base their opinion on only what they see and hear in court during the course of the trial.

Because the world of field grade officers of equal or higher rank as the accused is actually a very small world, and because this unique group of individuals have been engaged in a 20-year war with radical combatants who see their militant mission in terms of radical Islamic holy war - jihad – it's not a very easy task.