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 Hasan Defense Request for Additional Mitigation Funding, dated 7 January 2011, submitted to the Special Court-Martial Convening Authority, still has not been acted upon. By comparison, I am not aware of any funding request by US Army prosecutors that has not been timely and favorably approved . . . . . Why am I not surprised?

No John, why are we not surprised? In that respect United States v. Hasan is no different than other cases.

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.

1. Contemporaneous video’s and photos can provide vital evidence for both sides.

Nixon said he remembered Hasan because of “his stature and just how he composed himself — stoic.”

A video of this may have aided both sides. Was he stoic, or was that something else which might be relevant to a forensic health examiner. The demeanor certainly sounds damning. But could it be evidence or reflective of some other mental health disease or defect. For cases that happen on base or at a party or other event there is the potential for video and still photo evidence. Generally law enforcement doesn’t bother to collect it in most cases. As a defense counsel I’ve been able to use these contemporaneous photos to good effect. Defense counsel should always ask witnesses if there were photographs taken at an event. For example in the standard sexual assault case the event often starts at a party or a club. Digital cameras are ubiquitous and party-goers often take pictures. Those pictures may show the complaining witness or the accused at various times during the evening. If the issue is incapacitation, the complaining witness’ demeanor and actions, especially later in the evening, may be relevant. Or perhaps there’s a picture of the complaining witness kissing and cuddling with the accused on the couch, an event she denies, because it goes to a mistake or consent defense.

2. Eyewitness testimony is not as reliable as we believe. This is not a new topic. But we can see how eyewitnesses in stressful situations may not have an accurate, complete, or same memory of events. This raises a concern about post-event interviews of witnesses. The concern is how witnesses who are improperly interviewed may alter their memory to conform to facts learned from others. This is not necessarily deliberate but a psychological effect of being interviewed together with other witnesses or having their statement challenged by the investigator or being shown other statements by the investigator. There’s plenty of research on this. But here are the points from the AP article by Brown & Cracyk.

They have given similar accounts of how the rampage began, saying Hasan fired into a crowded waiting area and then walked around the building, shooting people as they hid under chairs and tables, pausing only to reload.

But have they? Later in the article the writers tell us that:

Only one witness has testified he saw two weapons. Others have said they saw one weapon, but descriptions about the gun have varied.

News reports on this have also varied. A minor difference you say. Maybe.

I’m not convinced as is Mr. McCarthy that this was a deliberate cover-up by the Army. Rather a silly mistake. That Soldier should have been ordered to turn over his cellphone as potential evidence. Once that is done the evidence can be put on an ECD by CID and retained as evidence. Sure the Soldier will be inconvenienced for a short while. But there are very good software programs and tools available to forensic computer examiners to quickly retrieve and preserve such “computer” evidence from the cellphone sim-card or SD card.

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.

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.

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.

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.

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.

Fort Hood shooting suspect Maj. Nidal Hasan’s attorney tells News 8 he will ask a military judge Thursday morning to close the upcoming Article 32 Hearing for his client to the public and press. “I think it’s necessary to ensure he can eventually get a fair trial at Fort Hood,” (Ret.) Col. John Galligan, Hasan’s civilian attorney, told News 8 Wednesday. “We need to make sure his Sixth Amendment rights are not jeopardized.” The Article 32 Hearing is the military equivalent to a probable cause hearing in the civilian justice system.

Thanks WFAA.com for not referring to the Article 32, UCMJ, hearing as equivalent to a grand jury.

Next Thursday Maj. Hasan’s pretrial investigation, Article 32 hearing will reconvene. According to officials, the session is called a Status Conference Hearing and will address additional preliminary measures. Officials say no witness testimony will be heard during this portion of the hearing. The Article 32 hearing will be held on October 12.

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.