Hasan jurors' task in sorting out reality of murders

The red X marks the spot where Hasan stood to rain lead on his victims
- Drawing by TV sketch artist Brigitte Woosley

Judge's instructions exacting, precise

Ft. Hood – Listening to PFC Michael Pearson die on the 911 audio made after Nidal Malik Hasan shot him and more than 30 other persons is a painful experience. Pearson moans and wails as his life's blood pours out of his body and a civilian employee sits under a desk, a phone in her hand. In maddening persistence, an emergency operator continues to ask inane question after inane question.

“What is your emergency?” “What is your location?” “What is your name?” “Where is he shot?” “Is the shooter still there?”

It's not a simple task, but it's exacting enough to make your hair hurt while you listen to the judge rattle off the jury instructions that go with the lengthy set of murder specifications that go with the alleged murder of Private Pearson and 12 other soldiers and civilians.

Thirteen senior field grade Army officers are sitting in judgement of a medical officer, a psychiatrist accused of capital murder of 13 unarmed persons – most of them men and women with whom he was scheduled to deploy to Afghanistan in violation of his beliefs as a devout devotee of Islam – the religion named for “peace.”

Here are some highlights of what Judge (Col.) Tara Osborn detailed as necessary findings to either convict or acquit the accused of any of 13 counts of premeditated murder or 32 counts of attempted premeditated murder.

The Government has to have proven that Hasan, and no other person, attacked Mr. Pearson; that Mr. Pearson is dead; that his death resulted from an act committed by the accused, the unlawful discharge of a firearm; that it was an unlawful act, a murder committed in violation of Article 118 of the Uniform Code of Military Justice; and that the act was premeditated.

For each of the additional victims, the judge explained, the same elements of proof apply, the only difference being the name of the victim.

Premeditation in legal terms is not presupposed by any particular length of time. Proving that an actor raised a weapon and discharged it by pulling the trigger is enough to prove premeditation, the judge said.

In the cases of attempted premeditated murder, it is only necessary to prove that the actor went through the same motions, but failed to cause the death of the intended victim in the attempted murder through “a substantial step in the direction of killing.”

“Your duty is to determine the facts, apply the facts and determine the guilt or innocence of the accused,” she said. In all cases of conflict, they must trust her word and no one else's as to the black and white letter of the law.

Evidentiary elements are just as exacting.

The fact that the accused remained silent, did not tetify in his own behalf, and made no closing statement is to be ignored. No inference of guilt may be made from his exercising his absolute right to remain silent.

Intent may be determined either by direct evidence, as in witness testimony or personal observation, or by circumstantial evidence from which one may reasonably infer a conclusion, such as the fact of wet streets reasonably considered as an indication of recent rainfall.

The performance of a military duty can be considered mitigating evidence, but, the judge was careful to point out, jurors may not consider an inference of bad character from the fact that the actor shot with a gun a pregnant female soldier while she pleaded, “My baby, my baby!”

“You may not conclude from this evidence that the accused is a bad person.”

If the Government has failed to prove any of these elements, they must acquit, and then take up the consideration of lesser charges, such as voluntary manslaughter, involuntary manslaughter, or aggravated assault with a deadly weapon.

To assess the death penalty in the punishment phase, the panel must have made a finding by unanimous decision of guilt for premeditated murder of at least one victim, and murder, premeditated or not, of an additional person, according to an Army spokesman.