Elements of proof in Hasan case to be weighed

Scene of terrorist attack at Ft. Hood on Guy Fawkes Day, Nov. 5, 2009

'Stipulations' - final pre-trial pleading

A Texas State District Judge, upon hearing a capital murder defendant's pleading to represent himself at trial - “That's kind of like doing your own open heart surgery.”

“It is never too late to hire a lawyer, even on the day of trial in order to secure another delay in the proceedings.” Evan L. Loeffler, American Bar Association

“Everything that happened in that building will become extremely relevant to that panel. - chief prosecutor, United States. v. Hasan (click here for a previous report)

Ft. Hood – A final pre-trial hearing scheduled for 2:30 p.m. On Thursday, July 18, is the last chance the defendant will get to do what famed murder defense lawyer Clarence Darrow said is the most important part of litigating a criminal defense – other than picking the right jury.

The case is won or lost during pre-trial hearings, before the first word is spoken during the presentation of evidence and testimony at trial.

It's a matter of life and death for Major Hasan because an execution order can only be entered following a unanimous verdict of guilt by a jury. (click here for a more detailed report)

When the prosecution steps before the jury to inveigh the opening argument in its case seeking the execution by lethal injection of Maj. Abu Nidal Malik Hasan, the ultimate goal will be to prove two things.

Major Hasan

First, when the former Army psychiatrist opened fire on unarmed soldiers and civilian workers at the Soldier Readiness Center on Nov. 5, 2009, it was with a specific intent to kill.

Secondly, the act of killing 13 persons and attempting to kill an additional 32 who were wounded by what witnesses have described as the rapid and expert fire of a FN Herstal 5.7 x 28 mm semiautomatic handgun, was premeditated.

The specifications of 13 counts of premeditated murder and 32 of premeditated attempted murder requires “proof beyond a reasonable doubt” that the accused displayed a “premeditated design to kill.”

According to Courts Martial manuals and numerous citations of previous cases upheld by appeals courts, “the 'premeditated design to kill' does not have to exist for any particular or measurable length of time...” (U.S. v. Sechler).

Furthermore, the existence of premeditation may be inferred from the circumstances, without direct evidence or testimony as to the defendant's statements of intent.

Pulling the trigger the first time establishes proof of premeditation for an infinite number of subsequent acts, according to the rules. In addition, some of the circumstances that have been cited in previous military cases include “the viciousness of the assault” (U.S. v. Ayers); the fact that the weapon was procured before killing (U.S. v. Mitchell).

Maj. Hasan has tried – twice – to “accept guilt” for his acts. Col. Tara Osborn has denied his motion on both attempts because the Rules of Courts Martial do not allow a defendant to plead guilty to a capital charge involving multiple killings. (click here for a previous report)

At a recent hearing held on May 9, the Army's lead prosecutor argued, “There is no constitutional right to plead guilty. All the arguments they have made are meaningless...”

The judge agreed, saying “Here the defendant is accused of killing 14 persons...I believe the accused would be admitting that he had the intent to kill each of them.”

The primary responsibility of the judge – any judge who is hearing any kind of criminal case – is to see that the defendant receives a fair trial by making dead sure representatives on both sides of the lawsuit follow all the rules.

Extensive fortifications to on-post courthouse

It's a tall order in this case, where the defendant has been allowed to defend himself – and doesn't know all the rules.

He has the constitutional right to mount his own defense, but admits, constantly, that “I don't know what I don't know.”

The judge reminds him – constantly – that it's his responsibility to find out because he can only make an appeal by perfecting the trial record through a timely objection to a point of appeal. 

The accused will be held to the same standards of legal competence as any licensed attorney. 

He will be allowed to consult with the three Army lawyers he fired, all three of whom are sitting in for the duration of the trial, but they have made strenuous objections on ethical grounds to being required to give him legal advice. (click here for a previous report)

With one of their number relegated - by Hasan's demand - to sitting outside the well of the court, on the spectator side of the bar, they have accepted their role as one of standing by should there be any change in the defendant's pro se status, and the judge rescinds her previous order to revoke his privilege to represent himself.

Some of the elements of proof that would be rendered unnecessary, elements argued vociferously during pre-trial litigation – had the the judge granted the Major's motion to plead guilty, include:

Stipulation, as an undisputed fact, to the carnage of the crime scene, including a lengthy FBI videotape depicting the bloody aftermath of the rampage. Prosecutors countered the argument, saying, “Everything that went on in that building will become extremely relevant to that panel.”

Jurors would have also missed hearing about:

1. ballistics reports detailing the path of bullets through body tissue and bone, and the subsequent damage they caused;
2. autopsy reports that explain how the wounds caused by the Major's bullets – bullets designed to pierce body armor worn by soldiers and police – caused the death or wounding of those targeted.
3. crime scene photos depicting the position of victims and the path of the Major's murderous march through bloody hell;
   

   
4. witness statements and testimony regarding the things the defendant said and did, the manner of his combat shooting, and the skills he displayed, as well as his demeanor and invocation of God; (click here for a report about Hasan's motion in limine)
5. descriptions and testimony about the type of weapon used, how it was acquired, and what kind of training the Major sought off-post from a civilian instructor in combat skills;
6. correspondence through e-mail with a known terrorist, an Al Qaeda operative who served as an Islamic Mullah at a mosque near Washington, D.C., the Major's former duty station before he was transferred to Ft. Hood.  (click here for a take-out)