The trial of a US Army officer charged with killing 13 people at Texas army post starts tomorrow, a rare and complicated US military death penalty case that has faced numerous delays since the massacre nearly four years ago.
US Army Major Nidal Malik Hasan does not deny that he carried out the November 2009 rampage at Fort Hood, one of the worst mass shootings in US history. There are dozens of witnesses who saw it happen, but military law prohibits him from entering a guilty plea because authorities are seeking the death penalty.
Although the Hasan case is unusually complex, experts also say the military justice system is unaccustomed to dealing with death penalty cases and has struggled to avoid overturned sentences.
No active-duty US soldier has been executed since 1961.
If Hasan is convicted and sentenced to death there are likely years, if not decades, of appeals ahead. He may never make it to the death chamber.
The attack occurred in a building where hundreds of unarmed soldiers, some about to deploy to Afghanistan, were waiting for vaccines and routine checkups.
Hasan walked inside with two handguns, climbed onto a desk and shouted “Allahu Akbar,” an Arabic phrase meaning “God is great,” and then fired, pausing only to reload.
A reversed verdict or sentence on appeal in the Hasan case would be a fiasco for prosecutors and the army. That is one reason why prosecutors and the military judge have been deliberate leading up to trial, said Geoffrey Corn, a professor at the South Texas College of Law and a former military lawyer.
“The public looks and says: ‘This is an obviously guilty defendant. What’s so hard about this?’” Corn said. “What seems so simple is in fact relatively complicated.”
Hasan is charged with 13 specifications of premeditated murder and 32 specifications of attempted premeditated murder.
More than 30 people were wounded in the shooting.
Thirteen officers from across the US who hold Hasan’s rank or higher will serve on the jury for a trial that will likely last one month, probably longer. They must be unanimous to convict Hasan of murder and sentence him to death. Three-quarters of the panel must vote for an attempted murder conviction.
Death penalty cases are rare in military courts.
A study in the Journal of Criminal Law & Criminology identified just 41 cases between 1984 and 2005 where a defendant faced a court-martial on a capital charge.
Eleven of the 16 death sentences handed down by US military juries in the past 30 years have been overturned, according to the study and court records.
Meanwhile, more than 500 people have been executed since 1982 in the civilian system in Texas, the US’ most active death penalty state.
While lawyers and judges in Texas may get multiple death penalty cases a year, many military judges and lawyers often are on their first, said Victor Hansen, another former prosecutor who now teaches at the New England School of Law.
US military courts that are required to review each death penalty verdict are also more cautious and likely to pinpoint possible errors that might pass muster at a civilian court, Hansen and Corn said.
The trial’s start has been delayed multiple times, often due to requests from Hasan. Any of the hundreds of large or small decisions made relating to the trial could be fair game on appeal.
The entire record will be scrutinized by US military appeals courts that have overturned most of the death sentences they have considered.
Hasan has twice dismissed his lawyers and now plans to represent himself at trial.
He has suggested he wants to argue that the killings were in “defense of others” — namely, members of the Taliban fighting Americans in Afghanistan. The trial judge, Army Colonel Tara Osborn, has so far denied that strategy.
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