Judge, lawyers preparing jury instructions
Ft. Hood – Gleeful peals of amused laughter rippled through the crowd of national media representatives seated in the packed confines of the overflow digital courtroom when Maj. Nidal Malik Hasan rested his defense with three laconic words.
“The defense rests.”
As court proceedings opened for the day in his general court martial for 13 specifications of premeditated murder and 32 specifications of premeditated attempted murder, Judge (Col.) Tara Osborn was at pains to assure herself that two defense witnesses he had deleted from his list were present and ready to testify if called.
They are Dr. Tim Jon Semmerling, a mitigation consultant who specializes in death penalty cases, and Dr. Rambo, a similar consultant. Hasan made it clear he would call neither.
And then the judge said, “Major Hasan, you may proceed.”
Hearing his answer, she sat silently for long moments, then went back to work.
She immediately asked him if he wished for her to instruct the panel of jurors that is his right to remain silent after she had admonished him. Legally, no inference of guilt may attach to his choice, she said
“Major Hasan, your decision controls.”
Judge Osborn dismissed members of the panel for the day, to return on Thursday morning, August 22, to receive instructions agreed upon by prosecution, defense, and the bench.
She told the prosecution she wished them to prepare two instruction sheets for the panel, one with instructions as to how to find Hasan guilty of voluntary manslaughter, the other without.
Prior to making that decision, she sought the opinion of the prosecution.
“Your honor, we don't see that as an option.”
“Your honor, passion would equate to a motive.”
Manslaughter is a finding jurors may make if they see that an actor was inflamed by his reaction to a happening, and was either unable to cool from the heat of his passion before acting, or chose to disregard the consequences of his actions due to his emotional state.
He cited the fact that Maj. Hasan drove to Ft. Hood, his pockets stuffed with paper towels to stop the many magazines of 5.7 x 28 mm FN Herstal ammunition he loaded from rattling, and then sat in Station 13, his elbows on his knees, his head in his hands, until he decided to tell a civilian data entry clerk go to a rear office to see the Officer in Charge in order to respond to an emergency.
Testimony elicited during the case in chief indicated his intent to target only soldiers dressed in the Army's combat uniform during the deadly handgun attack that left 13 persons dead, more than 30 wounded, and resulted in the charges of premeditated murder and attempted murder.
The judge then instructed the defense and the prosecution to prepare instructions for jurors, and gave prosecutors an assignment of preparing one worksheet with instructions for a finding of voluntary manslaughter, the other without.
They will work the rest of the day on their task, preparing the judge to instruct the jury panel at 9 a.m. on Thursday, August 22 prior to their deliberations.