Judge rules out video in opening statements at Hasan trial

Heavily fortified courthouse at Ft. Hood

Ft. Hood - The lead prosecutor answered the judge’s repeated questions as to the relevance of crime scene photos laconically, with a neutral affect - until he was asked about a 911 call that includes audio of one victim’s dying groans.

“What’s the probative value of Michael Pearson’s groans?” Col. Tara Osborn asked.

“Your honor, that’s what it sounds like when someone groans and dies,” the prosecutor said - bluntly.

One of three audio files gleaned from those made from the scene of the shooting on Nov. 5, 2009, it was obtained when a woman crawled under her desk and called 9-1-1 operators, then stayed on the line during the gunfight that ended the shooting rampage of Maj. Abu Nidal Malik Hasan, a former Army psychiatrist accused of the premeditated murder of 13 unarmed soldiers dressed in combat fatigues.

He is similarly charged with the premeditated attempted murder of an additional 32 persons.

In probing the prosecution on the relevance an 8-minute video made by FBI crime scene investigators, the judge again struck a raw nerve.

The prosecutor responded by saying, “It’s literally 45 soldiers crammed on top of each other.” In still photos, he explained, “You don’t take away a sense of how small that area was...It started with 45 people sitting in chairs.”

The government will be obliged to prove that each victim is a human being, that they were attacked by none other than Maj. Hasan, and that each victim is positively identified to the jurors - beyond a reasonable doubt - and was killed or injured with pistol fire in a deadly onslaught that ended only when a police officer cut him down with three shots of a 9 mm pistol to the cernter of his chest. He is paralyzed from the sternum to his lower extremeties.

Maj. Hasan repeatedly responded that he had no objection to the graphic evidence that the prosecution will present. In each case, he responded, almost surreally - as one seasoned journalist put it, “Like something out of a Stephen King novel.”

Maj. Hasan repeated the phrase over and over, saying “as long as it preserves the dignity of the deceased.”

At the end of the day, the judge ruled that the crime scene video may not be used during opening statements by the prosecution.

They will rely on still photos which are so bloody, many of them have been replaced with computer-generated diagrams in which the victim resembles a mannequin and show the route of the projectiles and where they struck flesh and bone.

During the testimony phase of the trial, the prosecution will be allowed to use the video.

At one point, Maj. Hasan attempted to stipulate as to the identity of each of his victims, saying “It would save a lot of time...” before the prosecutor cut him off, saying “Your Honor, we’re getting dangerously close to allowing a statement of guilt, here.”

Since such an admission is precluded by law, the error could prove reversible, and the judge declined to allow the stipulation - quickly.

Asked why an “in-life” photo is attached to each autopsy report and accompanying photo exhibits, the prosecutor said “It shows not just the name, but the face.” The judge cautioned the prosecution they should crop out views of the deceased with bare genitalia, open eyes, and gaping mouths.

Similarly, the judge ruled inadmissible pictures of three victims with the time of death written on their foreheads by an emergency medical technician performing triage who did that to fix in her mind exactly what happened, and when.

Asked if he had any objection, Maj. Hasan said, “As long as they do their best to preserve the dignity of the deceased...I understand what they’re trying to do, and I don’t object to that...as long as you don’t show them over and over.”

From a crime scene littered with 45 victims, 145 spent shell casings, documented by more than 1,100 photos, 1,250 autopsy photos and some 400,000 pages of discovery materials, the prosecution has selected 120 photos of the crime scene, autopsy photos of the 13 who lost their lives, and will rely on witnes testimony of those who were wounded by gunfire to prove the premeditated nature of the attack.

Court will reconvene again on Wednesday, July 31, at 2:30 p.m. to allow the judge to ask prosecutors more questions about the relevance of certain items of evidence.