The outbreak of violence by individuals who seek to harm other persons or institutions cannot be reliably predicted today, the Defense Science Board said in a new report to the Secretary of Defense. Instead, efforts to counter violence should focus on prevention and mitigation of the threat.

The DSB was created and tasked in response to MAJ Hasan and the Fort Hood shootings. But does the report have important learning points in regard to sexual assault prevention.

h/t Secrecy News from the FAS Project on Government Secrecy

The Army psychiatrist charged in last year’s deadly Fort Hood shooting rampage is to have a mental evaluation this week, his attorney said Monday. Maj. Nidal Hasan will be evaluated in the county jail near the Texas Army post as early as Tuesday by a three-member military mental health panel, said his lead attorney, John Galligan.

statesman.com has this comment:

“They are moving in checklist fashion to try him and kill him,” Galligan said.

A key intelligence report that could aid accused Fort Hood shooter Maj. Nidal Hasan’s defense is being withheld by the Obama administration, according to a letter obtained by Fox News as part of its ongoing investigation of a radical American cleric. . . . . John Galligan, Hasan’s defense attorney, told Fox News that he requested the White House intelligence report nearly a year ago, and it is only now that he has officially been told the information will not be available.

A US special forces member suspected of having accidentally killed a British aid worker held hostage in Afghanistan could face disciplinary action, officials said Thursday.

Reuters reports that:

Col. James Pohl, the presiding officer at Hasan’s hearing, denied a request from Hasan’s lawyers to delay the Article 32 evidentiary hearing to determine if a military court-martial is warranted until November 8.

Air Force Times reports:

A terrified civilian worker begged a 911 dispatcher for help as gunfire and screams rang out during a deadly rampage at Fort Hood, according to a recording of the phone call played Wednesday at a military hearing to decide if an Army psychiatrist accused in the attack should stand trial.

UPI reports:

More than 100 witnesses have been called to testify at the hearing, including the 31 other people wounded in the attack and the two Fort Hood police officers who shot Hasan four times, CNN said.

The Sacramento Bee has more on the California National Guard cases, begun by a whistleblower.

Master Sgt. Toni Jaffe was known as “the M&M lady” because she decorated her office cubicle with keepsakes of the confection’s advertising characters.

Talking of whistleblowers, Air Force Times reports:

The Supreme Court has declined to hear an appeal from a former Mississippi Air National Guard colonel who alleged other officers retaliated against him for revealing corruption.

Army Col. James Pohl he told the defense it could put its arguments for the continuance into writing rather than air them in court. Defense attorneys did not want to explain their reasons publicly. “I believe that would protect your client’s interest,” Pohl said, adding that he would “give you that option rather than discuss it in open court.”

A military hearing to determine whether an Army psychiatrist should go to trial for a deadly shooting rampage at Fort Hood was abruptly adjourned Tuesday when defense attorneys asked for a nearly month long delay.

Mr. Galligan’s website now points to this CNN piece. The title of his posting is, “Army Attempts Last Minute Changes to Sanity Board.” The CNN piece makes several observations.

1. The defense objects to the timing.
2. The defense alleges this is an attempt to distract the defense from preparations.
3. The effort to do a review is generated, “after the defense said in court last month that it may introduce mental capacity evidence for consideration in the case — after previously saying it would not raise the issue of mental capacity or competency.” Mr. Galligan denies the statements.

He said he also objects to the military mental health professionals who make up the “sanity board” and would be charged with evaluating Hasan. The attorney said the current members of the board may not be objective, noting that one was on the faculty of the medical school while Hasan was a student there.

You will recollect a lot of consternation about what training Hasan received and a number of mental health professionals at Walter Reed Army Medical Center have been dragged over the coals. So I suspect some concern on the part of Mr. Galligan may be justified.

NPR leads with:

Dozens of people will take the witness stand in a military courtroom over the next few weeks to describe the pain of bullets piercing their bodies and the sight of fellow soldiers lying in pools of blood. But this hearing is not about an attack in Iraq or Afghanistan. It’s a key step in the case against an Army psychiatrist accused of gunning down more than 40 fellow service members and civilian workers last year in a rampage at Fort Hood.

Down under The Age asks:

Nearly a year after the shootings, fundamental questions linger. Was Hasan another ”workplace” violent offender? Was he a radicalised extremist who should have been removed from the military? Was he a tool of radical Islamic leaders abroad who reportedly were in contact with him and spurred him on, and who immediately applauded the shootings?

The Article 32, UCMJ, hearing may not tell us this.

Here’s an interesting item in the Santa Cruz Sentinel.

A defense attorney on Thursday blocked a mental evaluation for the Army psychiatrist accused in last year’s shooting rampage at Fort Hood, saying it should not be conducted before a hearing to determine whether his client will stand trial. John Galligan, the lead defense attorney for Maj. Nidal Hasan, said Thursday that he gave a three-member military mental health panel written objections about the exam. The panel must determine whether Hasan is competent to stand trial, and also will determine Hasan’s mental status the day of the Nov. 5 shooting that left 13 dead and nearly three dozen wounded on the Texas Army post. Galligan said after he gave the panel his objections, they went inside the jail to see Hasan, who signed a document that said: “I do not wish to voluntarily participate in this exam under the current conditions and time frame.” The panel signed the document and left, Galligan said.

There’s a similar piece in the Houston Chronicle.

R.C.M. 405 deals with Article 32, UCMJ, hearings.

R.C.M. 405(j)(2)(D) requires the IO to make:

A statement of any reasonable grounds for belief that the accused was not mentally responsible for the offense or was not competent to participate in the defense during the investigation[.]

R.C.M. 706(b)(1) provides the basic guidance on the what, when, where, and how of pre-referral inquiries into an accused’s mental health.

A military officer has ordered a mental evaluation for the suspect in the November Fort Hood shootings before a key hearing next week. Earlier this year, Army officials appointed a three-member board of military mental health professionals to determine whether Maj. Nidal Hasan is competent to stand trial and his mental status the day of the Nov. 5 shooting.

The Army has postponed a hearing that had been scheduled for Tuesday for Staff Sgt. David Bram, who faces charges of conspiracy, striking another soldier, cruelty, dereliction of duty and impeding an investigation while serving in southern Afghanistan.

Military.com reports (no surprise here, the surprise would be not seeking a capital referral):

Maj. Nidal Malik Hasan’s lawyer [Mr. Galligan] says he expects the Army to seek the death penalty for the Fort Hood shootings.

While UPI reports:

Galligan is likely to raise the “good soldier” defense, in part by introducing favorable officer evaluations. The defense also could contend Hasan had a mental breakdown.

Military.com reports:

Twenty months ago, Navy Sailor Darren Mackie, 22, killed his ex-girlfriend, Navy Sailor Caitlin Elizabeth Trask, 20, with a single bullet to the back of the head. Her parents are still waiting for the Navy to dishonorably discharge him.

I recently posted on that case here.

KansasCity.com reports:

An airman accused of having unprotected sex without telling partners he was HIV positive faces a[n Article 32, UCMJ, hearing 5 October].

SCOTUSBlog reports on an issue that might affect military prisoners:

Buried in this morning’s order list is an order that may be of special interest to members of the Supreme Court bar who represent indigent parties in the Court. The Court denied the motion for leave to proceed in forma pauperis (IFP) and for appointment of counsel in Sossamon v. Texas, No. 08-1438, a case being argued in November. The denial may signal a change in the Court’s criteria for granting IFP status at the merits stage in some cases.

SCOTUSBlog reports here on the issue of the court and its intersection with the “Digital Age.”

Opening a new Term on Monday, the Supreme Court once again indicated that it is reluctant to get deeply involved in exploring new issues about privacy in the Digital Age. Without comment, it turned aside an appeal by the state of Ohio, asking the Justices to give police wider authority to check out the contents of a private cell phone they obtained during an arrest. The case was one of nearly 2,000 that the Court refused to hear in its new Term. It granted no new cases beyond the 14 it added to its decision docket last Tuesday. The Court has said explictly that it does not yet have a broad enough understanding of new electronic technology to make major pronouncements on the constitutional issues that are arising around it.

Recordnet.com reports, by Michael Fitzgerald, “Medics bravery in battle finally recognized.”

The Army drafted Yagi on Feb. 19, 1942 – the very day Roosevelt signed Executive Order 9066, the Japanese deportation. Suddenly, the hard-working Yagis had no constitutional rights. At first, Yagi refused to fight. It wasn’t right. The Army initiated a court martial. Yagi relented. He would go – but as a medic.

In 2008 family members decided to look into their secretive relations military past.

And made a discovery. Tom Yagi was supposed to have received the Silver Star.

Army Times reports:

All Spc. Bryan Roudebush wanted was a legal high. Trying to get some relaxation, he sat on a balcony in Waikiki, Hawaii, and took five hits off a small pipe packed with a drug called spice. He stepped back inside, dozed off on the couch beside his girlfriend Ola Peyton, and then — as if in a trance — he beat Peyton senseless and nearly pushed her off the 11th floor balcony.

The Peoplesvoice.org reports:

Mickey Weinstein and the Military Religious Freedom Foundation have been fighting the Air Force Academy in Colorado Springs for a very long time. Weinstein’s group is working to restore normal constitutional rights and practices in a military organization that has been hijacked by Christian Zionists who call themselves “Evangelicals.” The idea is simple. To get into the Academy or to remain there, un-raped, unbeaten, you have to attend regular “bible study” groups and continually mumble prayers. No Jews allowed. No homosexuals allowed. No Muslims allowed. It doesn’t stop there[.]

See here for prior posts on this subject.

Dallas news reports.

A hearing outlining evidence against U.S. Army Maj. Nidal Malik Hasan in last year’s massacre at a soldier readiness center should be public, a military official ruled Thursday. Defense lawyer John Galligan said he may appeal that ruling because he believes that closing the military’s equivalent to a grand jury proceeding against Hasan next month is necessary for a fair trial.

If there is to be an “appeal” that would likely be to the Army Court of Criminal Appeals. There has been litigation in past high visibility military cases about closure of the Article 32, UCMJ, hearing. See ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997). In ABC (McKinney) CAAF ruled:

Petitioners sought a Writ of Mandamus requesting that this Court order that the investigation under Article 32, Uniform Code of Military Justice, 10 USC § 832, into the allegations of misconduct made against the Sergeant Major of the Army (SMA), Gene C. McKinney, be opened to the press and public. See 28 USC § 1651(a). On June 23, 1997, following oral argument, we granted the Petition for Extraordinary Relief and issued a Writ of Mandamus opening the Article 32 proceedings to the press and public, as requested by Petitioners, with an opinion to follow. 47 MJ 80 (1997).

In United States v. Davis, 62 M.J. 645 (A. F. Ct. Crim. App. 2007), the court stated that:

The appellant moved to dismiss the charges at trial, contending the Article 32, UCMJ, 10 U.S.C. § 832, pretrial hearing was defective because the investigating officer (IO) improperly closed a portion of the proceeding to the public. The military judge found that the IO violated the appellant’s right to an open Article 32, UCMJ, hearing, but he denied the motion to dismiss because the improper closure resulted in no “articulable harm” to the appellant. On appeal, the appellant asserts the military judge erred and asks that we direct a newArticle 32, UCMJ, hearing with respect to two of the assault specifications. We find the military judge did err, but conclude the error did not materially prejudice the substantial rights of the appellant. Article 59(a), UCMJ, 10 U.S.C. § 859(a). It is settled that Article 32 investigations are presumptively public hearings, San Antonio Express-News v. Morrow, 44 M.J. 706, 709-710 (A.F. Ct. Crim. App. 1996), and that, “absent ’cause shown that outweighs the value of openness,’ the military accused is likewise entitled to a public Article 32 investigative hearing.” ABC, Inc. v. Powell, 47 M.J. 363, 365 (C.A.A.F. 1997) (quoting Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 509, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)). Our superior court has also noted that the right to a public hearing is not absolute, and the decision whether closure of a hearing is necessary is made on a “case-by-case, witness-by-witness, and circumstance-by-circumstance basis.” Id.

In Doe v. Commander, Naval Special Warfare Command San Diego, NMCCA 200401530, (N-M. C. Ct. Crim. App. December 15, 2004), the issue was closure of parts of an Article 32, UCMJ, hearing because of classified information issues.

Petition for Extraordinary Relief of 12 Nov 2004 at 15. Specifically, the petitioner seeks “a writ of mandamus ordering the convening authority to rescind his special instructions to the investigating officer, modify his protective order and comply with Grunden [n.1]. . . andPowell, . . . and a writ of prohibition preventing the convening authority from excluding all classified materials from the pretrial investigation hearing and from arbitrarily and unilaterally closing that hearing to the public.” Id

n.1., This case relates to handling of classified materials and so-called “national security cases;” do I hear Wikileaks.

The San Antonio Express-News is an active participant in the court-martial process. By that I mean they will file a writ if they are denied access to a military proceeding such as Hasan’s Article 32, UCMJ, hearing.

United States v. Morrow, 44 M.J. 706 (A. F. Ct. Crim. App. 1996), rev. denied 48 M.J. 325 (C.A.A.F. 1997).

Petitioner requests that the Court issue an order permitting public access to a pretrial investigation of charges at Brooks Air Force Base, Texas. In support of its request, Petitioner avers that, in May 1996, Major Eric Duncan, an Air Force officer, was charged with the August 1990 murder of an 11-year-old girl. Petitioner states that Major Dixie Morrow was appointed to conduct the pretrial investigation of charges pursuant to Article 32, UCMJ, 10 U.S.C. § 832 (1994). Petitioner alleges that Major Morrow began hearings concerning the charges at Brooks Air Force Base, Texas, on July 8, 1996. Petitioner asserts that Major Morrow closed the investigation to the public upon request of the government representative, over the objection of the accused. Petitioner avers that the charges against Major Duncan concern a highly publicized disappearance and murder, which has aroused a great deal of public interest over the past six years. Citing “a First Amendment right of access to criminal proceedings,” Petitioner argues that no compelling interest outweighs the First Amendment rights of public and press access to this Article 32, UCMJ, hearing.

Col. Michael Mulligan, the Army’s lead prosecutor, belittled the request during a two-hour hearing Thursday at the post court building. In his argument to close the Article 32 hearing, Galligan cited the relentless media coverage of the case. Mulligan noted that Galligan has been quoted in much of that coverage. Taking the case “behind closed doors” might fan public concerns, the prosecutor added. “The defendant can’t shield himself from his activities.”

COL Mulligan has a point here. Mr. Galligan has been active in the media on this case, including establishing a website focused on the case. But so does Mr. Galligan. Perhaps he can get a mulligan based on the relentless publicity the military has been giving the case as well as publicity from DOD and the Congress in regard to the various investigations about the tragic events at Fort Hood and about the military mental health teaching program.

Temple Daily Telegram reports:

In other developments, Pohl denied a defense request for the government to pay an independent pathologist to inspect autopsy findings, and he put off ruling on a defense request to delay the Article 32.

Note to public. An Article 32, UCMJ, hearing officer has no authority to order expert assistance. A request for expert assistance is made to the convening authority (CA) in accordance with R.C.M. 703(d). A petition for a writ of mandamus (included with an Article 32, UCMJ, closure writ, would be unlikely to succeed). If the CA denied the request then the normal practice would be to ask the military judge to order the expert assistance and seek to reopen the Article 32, UCMJ, hearing based on the results of any expert assistance.

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

This reads as if the military judge intrudes himself to ask questions intended to elicit facts and testimony to support a finding on one or elements. In other words the “second” trial counsel role. To paraphrase:

[I] note at the outset that this [reads as if this] military judge [might be] more aggressive in his use of “clarifying questions” than many judges would dare. . . .In the military, a judge may not abandon his role as an impartial party and assist in the conviction of a specific accused.”

United States v. Reynolds, 24 MJ 261, 264 (C.M.A. 1987).

A military judge has a difficult balancing act which in Ramos, the court called the judges’ tight-rope and the maintaining of the “full fulcrum.”

This Court has commented on the tightrope over which a judge must tread in assuring, on the one hand, that court-martial members are provided the information that they need, while, on the other, “scrupulously avoiding even the slightest appearance of partiality.” United States v. Shackelford, 2 M.J. 17, 19 (CMA 1976); see United States v. Dock, 40 M.J. 112 (CMA 1994); United States v. Clower, 23 U.S.C.M.A. 15, 48 C.M.R. 307 (1974).

United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995). And:

There is a strong presumption that a military judge is impartial in the conduct of judicial proceedings. “When a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of [the] trial, [the] court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions.” We apply this test from the viewpoint of the reasonable person observing the proceedings. Failure to object at trial to alleged partisan action on the part of a military judge may present an inference that the defense believed that the military judge remained impartial.

United States v. Foster, 64 M.J. 331, 333 (C.A.A.F. 2007).

Here is a potential teaching point for defense counsel. We all know judges who are perceived to put their thumb on the scales and help out trial counsel (and trial counsel have similar perceptions about other judges helping the defense). Let’s take a look at some other cases. And defense counsel should remember it is OK to object if done in a professional and tactful manner. I have found a need to do that several times. If the defense doesn’t object it’s going to be a waiver/plain error/IAC issue potentially.

[M]military practice and procedure expressly provide for questioning of witnesses by a military judge (see Mil. R. Evid. 614(b), Manual, supra), and our case law requires that it be done in a fair and impartial manner. . . . the mere fact that the answers to these questions may help or hurt one party’s case does not suggest partiality, especially where the military judge makes clear his neutral purpose in asking these questions.

United States v. Cooper, 51 M.J. 247, 250 (C.A.A.F. 1999), but see, United States v. Smith, 52 M.J. 337, 342 (C.A.A.F. 2000)(military judge should not be trying the prosecution’s case).

Mil. R. Evid. 614(b) is apparently broad:

Interrogation by the court-martial. The military judge or members may interrogate witnesses, whether called by the military judge, the members, or a party.

As to the military judge in the Cooper case, the Air Force Court of Criminal Appeals had noted:

There was no objection, on the record, to any of the judge’s comments–therefore, once again, we must approach this issue with a “plain error” analysis. We note at the outset that this military judge was more aggressive in his use of “clarifying questions” than many judges would dare. However, in the absence of objection on the record, it is very difficult to find plain error.

51 M.J. at 249.

Several reasons exist for our conclusion that this is not an extraordinary case requiring reversal of appellant’s conviction. First, defense counsel lodged no objection to the military judge’s curative instructions on the grounds that the judge’s comments further evidenced his bias for the Government. See RCM 801(g) (effect of failure to raise defenses or objections). Moreover, he made no motion to disqualify the military judge from continuing to sit in this case on the basis of these judicial remarks. Third, the judge’s reprimand, although probably unjustified and certainly improper before the members, was no more than a mild rebuke of defense counsel (“having halfway chewed him out”). Finally, the now-challenged comments were couched within unequivocal instructions from the judge protecting appellant from any impermissible use of his comments.

51 M.J. at 250.

Questioning the Witnesses. A military judge must scrupulously avoid “even the slightest appearance of partiality.” A military judge’s “influence . . . is necessarily and properly of great weight,” and his “last word is apt to be the decisive word.” On the other hand, because military judges are more than “mere referees,” it is appropriate for them to take an active part in the trial. Thus, while military judges may not become partisan advocates, they may and “sometimes must ask questions . . . to clear up uncertainties in the evidence or to develop the facts further.”

51 M.J. at 253 (Gierke, J., concurring inpart and in the result).

It seems to me from the cases (mainly members cases) that there are several common threads: a military judge does not err when asking questions to “clarify factual uncertainties,”or “clarify ambiguity,” and a military judge does not err if also seen to be acting in a objectively “fair and impartial manner,” and the defense better object. See, Cooper, supra; Ramos, supra, United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (whether military judge should have recused self is viewed objectively looking at the totality of the circumstances). However, a military judge may err if asking questions to solicit facts to support the elements of the offense. On the one hand the military judge is a facilitator on the other a trial counsel.

We regularly tell members that it is not their job to aid one side or the other, that there are not there to fill in holes in the case. To a large degree there is a level of tolerance from both sides especially with new counsel. However, the fact that counsel are new and inexperienced is not a reason for the military judge to become an additional counsel. Military judges acting as fact-finders ought to subject themselves to a similar admonishment as we give members.

Defense attorneys for Maj. Nidal Malik Hasan, a Fort Hood psychiatrist charged with killing 13 people and wounding 32 others in a mass shooting here last fall, won a four-month delay Tuesday in an evidentiary hearing that could lead to his court-martial.

Sitting in the same courtroom where he oversaw proceedings for two infamous Abu Ghraib defendants, Col. James Pohl ruled in favor of the defense, which said it had not received all the documents it needed – including a ballistic trajectory report now being done by the FBI in Quantico, Va. “We got what we wanted,” said retired Army Col. John P. Galligan, lead counsel for Hasan.

Here is a link to Wikipedia and a biography of Major Hasan. The Washington Post also has a piece on his life.

The Houston Chronicle has an odd item:

The hearing initially will be devoted to a series of motions. It will resume, probably next month, with a potentially long list of witnesses. One expected motion will seek to change the status of the case from a summary court-martial to general court-martial. The death penalty is allowed in a general court-martial but not in a summary proceeding. “There will be no witnesses or evidence, and the defense will be complaining like it has all along about not getting the necessary discovery,” Galligan said of the hearing, and he predicted it would be a “carefully choreographed” proceeding.

Meanwhile WFAA.com reports that:

But Hasan’s lead defense attorney, Ret. Col. John Galligan, told News 8 that there’s no way he can move forward Tuesday at the Article 32 Hearing, which is similar to a preliminary hearing in the military justice system. Neither evidence nor witnesses will be presented until July 1.

AP reports:

Neither Maj. Nidal Hasan nor any witnesses were expected to speak during the hearing, at which military prosecutors and defense attorneys planned to discuss case preparations and other basic matters. Defense attorney John Galligan said he would seek to delay Hasan’s Article 32 hearing, which is similar to a civilian grand jury proceeding in which a judge hears witness testimony to determine whether the case should go to trial. No date has been set, but authorities have said the could be held as early as July 1. Galligan said the Article 32 hearing should not proceed before Oct. 1 because he still needs key documents, including some of Hasan’s military records, FBI files on Hasan’s alleged contact with a radical Islamic cleric in Yemen months before the shooting, and some government reviews of the shooting rampage. Hasan also is awaiting a mental evaluation, which is to be conducted sometime after the Article 32 hearing.

On 26 May 2010, Mr. Galligan, MAJ Hasan’s civilian counsel posted this on his blog.

Today is the deadline, imposed by the Article 32 Investigating Officer, for Army prosecutors to respond to long outstanding Hasan Defense Team discovery requests. As of this posting – after COB at Fort Hood, Texas – no formal response from the prosecutors has been received. And, as readers are aware, the initial Article 32 session is scheduled for just several days hence.

It is not surprising that the neither the prosecution, nor for that matter the IO has responded to production requests under R.C.M. 405(f). This seems par for the course in many Article 32, UCMJ, investigations. Another interesting post is this.

For the past several months, the Hasan Defense Team has actively solicited the appointment and government funding for a mitigation specialist. Every step of the way, US Army prosecutors have resisted our efforts. Because all of the Defense nominees just happened to be licensed attorneys, Army prosecutors argued that we were trying to backdoor the retention of additional civilian counsel. Of course, that argument is ridiculous and overlooks the fact that many experts who also happen to be attorneys are routinely appointed as experts in military courts-martial. Moreover, they have served as expert witnesses for both the defense and the prosecution. And, more significantly, the position of Army prosecutors in the Hasan case is totally at odds with the fact that one of the defense nominees is now serving as a mitigation specialist in an ongoing court-martial at Fort Lewis (United States v. Davila). Apparently, the US Army does not speak or act with one voice on this important issue. 11 June 2010: the Article 32, UCMJ, hearing ICO LTC Lakin is set to begin at WRAMC. LTC Lakin is not in pretrial confinement but charges have been preferred. Therefore the R.C.M. 707 speedy trial requirement applies.

I agree with Mr. Galligan about experts who also have legal training. I have had cases, and currently have an Army case, in which one of our experts – a pathologist — is also a lawyer.

Post hearing: An Article 32, UCMJ, investigating officer is required to provide a written recommendation on charges and forum prior to further disciplinary actions or case disposition. A DD Form 457 with additional pages and attachments is used.

The Staff Judge Advocate is also required to provide a recommendation in accordance with Article 34, UCMJ.

The Army guide on the conduct of an Article 32, UCMJ, hearing is DA Pam. 27-17.

But even before the gavel comes down, two legal battles are underway to try to force the Army and the Department of Justice to turn over documents dealing with Hasan’s past, particularly his personnel files, his mental health records and other documents that might suggest the government should have known he was a dangerously troubled soldier. The Senate Homeland Security and Governmental Affairs Committee has taken the unusual step of issuing subpoenas demanding the records as part of its investigation into the shooting spree. What they want to know, said committee Chairman Joe Lieberman (I-Conn.), is “why was he not stopped before he took 13 American lives, and how can we prevent such a tragedy from happening again?” At the same time, Hasan’s defense attorney, John P. Galligan, a retired Army colonel from Belton, Texas, said he has been deprived of the records despite repeated requests. Without the material, he said, it will be very difficult to defend Hasan at the hearing.

R.C.M. 405(f)(10) seems to provide for Mr. Galligan being given what he’s been asking for.

For years, the top officer in the Virginia National Guard has had a paid position with a business run by one of his subordinate officers. Newman promoted Bonanni to the assistant adjutant general’s post in 2008 while collecting a paycheck from his company.

Air Force Times reports:

A two-star general who received a top assignment at Air Force Materiel Command six weeks after being arrested on drunken driving charges will pay a fine and spend no additional time in jail.

News25 reports that:

A Fort Hood soldier was sentenced to 18 months of confinement for allegedly possessing child pornography. At a General Court Martial Friday morning, Staff Sergeant Kurt John Gullens pleaded and was found guilty on a Wrongful Possession of Child Pornography charge. Gullens’ rank will also be reduced to E-1 and he will receive a bad-conduct discharge.

L.A. Now reports that:

A Marine major was sentenced Thursday to a reprimand and 90 days’ confinement for his role in leaking intelligence documents to civilian law enforcement. Major Mark Lowe will also forfeit $2,000 in pay for three months under punishment meted out by a court-martial at Camp Pendleton. The sentence must be approved by Lt Gen. Keith J. Stalder.

See also Marine Corps Times.

Military.com reports that:

The Navy reached a milestone of sorts in April. It was the first month of 2010 that the service didn’t have to remove a commanding officer for misconduct.

The attorney representing the accused gunman in the 2009 Fort Hood shootings says the Army is holding back important evidence in the upcoming Article 32 hearing. Attorney John Galligan says he needs court documents, including Major Nidal Hasan’s FBI files, to gain more insight into his mental state in the months leading up to the shooting. The Article 32 hearing is scheduled for June 1 at Fort Hood. Galligan says the prosecution will call more than 70 witnesses including victims and first responders.

Here is a quick note from KWTX.com:

FORT HOOD (April 30, 2010)–Fort Hood authorities said Friday they have not reached a decision to seek the death penalty in the upcoming Article 32 for Army Maj. Nidal M. Hasan. “There has been no decision to pursue the death penalty in the case against Maj. Nidal Hasan,” Post officials said in a press release Friday.

Initially there are some terminology issues to resolve. There are two notice provisions when the prosecution seeks a death penalty.

1. Notice of a capital referral is first formally made on the charge sheet at the time of referral. R.C.M. 1004(b)(1)(A).

2. Notice of the aggravating factors which the prosecution asserts justify the death penalty are given: (1) in writing, (2) by the Trial Counsel (remember we are at the Article 32, UCMJ, stage, so there is no trial counsel on the case, just government representatives assigned IAW R.C.M. 405(d)(3)(A)), (3) before arraignment. However, the government drafted R.C.M’s also have a get out provision that:

Failure to provide timely notice under this subsection of any aggravating factors under subsection (c) of this rule shall not bar later notice and proof of such additional aggravating factors unless the accused demonstrates specific prejudice from such failure and that a continuance or a recess is not an adequate remedy.

The aggravating factors are found at R.C.M. 1001(b)(4) as well as 1004(c). Not all of those factors apply, but the following could: damage to national security (2)(3), endangering the life of one or more persons other than the victim(s) (4), and / or with intent to avoid hazardous duty (5). So far it appears the prosecution is focused on 1004(c) (4). R.C.M. 1001 addresses general aggravating evidence found in all cases and it is 1004 that addresses the additional aggravating facts to justify death.

So, I agree that legally the prosecution has not been referred capital. Thus the notice isn’t really a notice as contemplated by the R.C.M. However, it is my understanding that Army practice is now to produce for an Article 32, UCMJ, investigation information supporting a capital referral and asking the IO to make a recommendation. Such a practice makes sense, especially in borderline cases. Article 32, UCMJ, and RCM 405 provide for the IO making a recommendation as to disposition of the charges. Clearly a recommendation on a capital referral is within the IO’s ambit. If so, then it seems to me that the defense ought to have every opportunity to address those matters within the context of RCM 405. It is my understanding that putting the defense on early notice was a reason for the practice at the Article 32, UCMJ, hearing.

Here is the actual command press release courtesy of KWTX.com.

It’s true that the convening authority has not decided to make the formal referral. But I think it somewhat disingenuous to proceed as if this is not a capital case. By proceeding legalistically the prosecution can justify denying the defense the opportunity to prepare for and present mitigating information under RCM 405(f)(11)(12) at the Article 32, UCMJ, hearing. That’s how I interpret Mr. Galligan’s complaints. If the prosecution is proceeding deliberately to limit the defense opportunity to present mitigation at the Article 32, UCMJ, hearing, then perhaps Mr. Galligan’s perceptions of unfairness and gamesmanship could have a reasonable basis in his view. Mr. Galligan has several items on his blog:

Senators Lieberman and Collins still have not received all of the information that was outlined in the subpoenas earlier served upon the Department of Defense and Department of Justice. Nonetheless, the Senators received information that has yet to be provided to the Hasan Defense Team. Prosecutors have voiced objection to anything more than a one-week continuance in the Article 32 hearing which is now scheduled to commence on 1 June. They appear uncaring about that fact that the new member of the Defense Team is not expected to arrive at Fort Hood for several more months or the fact that basic discovery associated with the case (e.g. FBI reports and classified/restricted investigations) still have not been provided to the Defense counsel. Most disturbing, the Army continues to stonewall Defense efforts to get its requested mitigation specialist on board. In its most recent statement about this issue, the prosecutors have argued, “The Government notes that as the present case has not been referred to any level of court-martial, the defense is not presently entitled to a government funded mitigation specialist as a matter of right.” It is time for them to stop playing games. Dilatory actions like this is what gives military justice a bad rep – fundamental fairness and a balanced presentation of evidence apparently is of no concern to this crop of prosecutors.

Here’s a post at Huffington Post about ‘Wolf Blitzer’s Shame Campaign.’ Another media expose of those shameless defense counsel who represent an accused. The piece ends:

What I don’t understand is this: Why is Wolf Blitzer trying to steal Nancy Grace’s thunder? I thought howling about what monsters defense attorneys are was her schtick.