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.

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.”

The defense team for Army psychiatrist Nidal Malik Hasan has retained prominent forensic psychologist Xavier Amador. The New York-based expert has been involved in several high-profile cases involving the military, including those of PFC Lynndie England (of Abu Ghraib infamy) and U.S. Army sergeant Hasan Akbar, who killed two fellow officers and wounded 14 soldiers in Kuwait in 2003. He was also a defense expert in the trial of would-be 9/11 hijacker Zacarias Moussaoui.

From 1986 until her retirement last year, Jaffe’s job with the California Army National Guard was to give away money — the federally subsidized student-loan repayments and cash bonuses — paid for by federal taxpayers nationwide — that the Guard is supposed to use to attract new recruits and encourage Guard members to re-enlist. Instead, according to a Guard auditor turned federal whistle-blower, as much as $100 million has gone to soldiers who didn’t qualify for the incentives, including some who got tens of thousands of dollars more than the program allows.

The Austin American-Statesman has an interesting piece about John Galligan and the MAJ Hasan case.

On Tuesday, Galligan will begin his courtroom defense of Hasan, whose Article 32 pretrial hearing — which will determine whether Hasan faces a court-martial and potentially the death penalty — is expected to feature weeks of testimony by dozens of witnesses, including all 32 wounded victims. But though his role as Hasan’s attorney has thrust him into the national discussion, Galligan has long been a polarizing figure in Bell County, where friends and foes alike describe him as a fearless fighter who has courted controversy — and the spotlight — in recent years.

Here’s a Austin American-Statesman piece on some of the players involved in the MAJ Hasan case.

Salon is reporting and has published an Article 32, UCMJ, report for United States v. Patano. Patano is running for Congress and it appears those who do not support him have obtained and released the Article 32. Patano had been charged with premeditated murder in violation of Article 118, UCMJ.

The military ultimately agreed with Pantano’s version of events, in which the two Iraqi men made a threatening movement toward him, and decided to drop the charges. Officials also opted not to subject Pantano to nonjudicial punishment for desecrating the bodies of the two men (by reloading his rifle and emptying another magazine into the men after they were already dead).

The Seattle Times reports on the Ramrod Five/Stryker Brigade cases.

A [] document[ review] raises questions about the oversight by the soldiers’ leaders. Why through most of the winter and spring months did they fail to uncover wrongdoing and remove rogue soldiers from the unit? Some officers and enlisted soldiers with direct oversight roles did have clues that something might be amiss, according to information in sworn statements they made in May to Army criminal investigators. But these leaders appear to have given the benefit of the doubt to their men, enmeshed in a difficult deployment in the heart of Taliban country

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.

1. Can LTC Lakin change lawyers at this stage. The answer in this case is probably yes. Although technically Mr. Jensen should submit a motion to be released and the new counsel file a notice of appearance.

2. Can LTC Lakin’s get a delay in the trial. Trial is currently set to begin 3 November 2010. The current docket is dated 6 October 2010. There is some question whether or not Neal Puckett or his other counsel are available because of the Wuterich trial ongoing. Also, there would be an issue of giving them an opportunity to prepare for trial. The answer to a continuance request in this case is probably yes, unless the prosecution can show an extraordinary adverse effect on their case by a delay.

These are not new issues. I’ve taken over from other civilian lawyers three times in the last two years, and like my colleagues have needed to ask for a delay when coming into the case after it is already underway. Usually that’s not been a problem.

I think United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) would be a useful starting point.

In United States v. Weisbeck the court set forth several factors: “surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witness or evidence requested, length of continuance, prejudice to opponent, moving party received prior continuances, good faith of moving party, use of reasonable diligence by moving party, possible impact on verdict, and prior notice.” See United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997).

The question would be a military judge displaying an inelastic attitude in rescheduling a trial. There certainly have been cases where a judge has denied a delay because of a change in counsel or change in civilian counsel. And most of those decisions have been affirmed on appeal. However, see United States v. Wiest, 59 M.J. 276 (C.A.A.F. 2004), in which the court found error in denying a continuance.

My sense though is that Judge Lind will give the new defense counsel a onefer. But for a potential resolution involving another hi-vis civilian attorney (John Galligan, MAJ Hasan’s counsel) see United States v. Lucero, ARMY 20020869, 2007 CCA LEXIS 616 (A. Ct. Crim. App. September 17, 2007), aff’d 67 M.J. 8 (C.A.A.F. 2008), cert. denied __ U.S. ___ , 129 S. Ct. 749 (2008).

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.

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.

Applying the Capital Jury Project Findings to Court-Martial Practice, Army CGSC, Fort Leavenworth, 11 June 2010.

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.

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.

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.

AP:

Stars & Stripes:

Army prosecutors have sent a notice that they plan to seek the death penalty against Maj. Nidal Malik Hasan, accused of the Fort Hood shootings, according to Hasan’s attorney, John Galligan. Galligan told The Associated Press on Wednesday that he received the notice outlining an aggravating factor — that more than one person was killed in the same incident. Military law experts say that’s the Army’s way of saying they plan to seek the death penalty, according to the AP report.

Bell County Jail, it’s where the man charged with the Fort Hood massacre, Nidal Hasan, is now being held. Inside the jail infirmary, under 24 hour surveillance, and his lawyer doesn’t like it. “He is, in short, being punished. In violation I believe of article 13 of the Uniform Code of Military Justice. And it’s deliberate, it’s conscious and it’s intentional,” John Galligan says.

Article 13, UCMJ, prohibits punishment or actions equivalent to punishment prior to trial. Mr. Galligan seems to be alleging the conditions Major Hasan is kept in are punitive. I read he has two complaints: the physical conditions, and also the adverse impact on his representation of Major Hasan.

Other “inmates” and their families are not happy either.

Major Hasan may not have been transferred from hospital yesterday as thought was planned.

Mr. Galligan’s chief complaint is a lack of a mitigation specialist assigned to the defense prior to the Article 32, UCMJ, hearing.

Major Hasan is on his way from hospital to Belton jail where he will be housed at an approximate cost of $206K.

He is wheelchair bound – question, is he a flight risk?

[T]he Army is erecting a 15 foot fence around the courthouse in Ft. Hood in preparations for the Article 32 military hearing on June 1, 2010.

Other reports indicate Mr. Galligan has requested a delay in the Article 32, UCMJ, hearing.

Defense attorney John Galligan said Tuesday he’s asking the Army to delay the hearing that will determine whether Maj. Nidal Malik Hasan will be tried by a military court for the Nov. 5 shooting rampage at Fort Hood’s Soldier Readiness Center that left 13 dead and 29 injured.