Major Hasan’s civilian defense attorney has indicated he may raise the insanity defense for the shootings of 13 military and civilian members of the Fort Hood community on 5 Nov 09. But he also indicates it is too early in the process to determine a defense strategy.

CID Investigation

The US Army Criminal Investigation Command (CID) has not completed its investigation of the Hasan case. It may take several months to complete a thorough investigation. The current charges, levied days after the event, are not the final charges in the case. Since there were also dozens others wounded, charges of attempted murder are likely.

Preliminary Charge Sheet

While preliminary in nature, the substantial evidence pointing to Hasan as the shooter was justified as a basis for murder charges. CID recommended an initial charge sheet of 13 counts of murder. The commander reviewed the CID recommendations and with the Staff Judge Advocate’s (command legal advisor) advice, determined the specific UCMJ offenses to charge. The preliminary evidence also allowed the commander to determine the probability of flight risk and safety requirements for Fort Hood, to then order Major Hasan be placed in pre-trial confinement pending trial as well as further investigation of additional charges.

Defense Strategy Development

Major Hasan has been appointed military criminal defense attorneys along with the family’s retained civilian defense attorney. All attorneys expect additional charges based on a full and complete CID investigation. No criminal defense attorney develops a defense strategy until all the evidence is collected and reviewed. Additionally, Major Hasan cannot fully participate in his defense until he has recovered from his wounds.

Administrative Hearing

The recent hearing on 21 Nov, in his hospital room was an Initial Review Officer (magistrate) hearing to determine the legality of continued pre-trial confinement. Further, the prosecutors’ ability to provide answers to military defense attorneys depends on the progress of the CID investigation revealing additional evidence in the case. But one major advantage the defense attorneys in a military court-martial have is practically immediate access to all evidence in the case as soon as possible after it is reported to prosecutors. In federal and state courts sometimes information not intended for use at trial is withheld from defense attorneys.

The Hasan family has hired a civilian attorney to defend Major Hasan. The attorney spoke with the Major this week and has requested no law enforcement interviews with his client. The military justice system allows for a suspect to remain silent when Criminal Investigation Division (CID) requests an interview.

Statements to CID

When a suspect refuses to interview with military criminal investigative services, the military criminal defense attorney can focus on challenging the evidence rather than refuting statements made without an attorney present. While statements can either be coerced, partially factual, truthful or various perceptions of reality, finding the ground truth is the task of both the prosecution and the defense.

Statements Under Duress

Any statements made by a suspect must also be without coercion and voluntary. The state of the individual, under the influence of alcohol, drugs, medications or mental afflictions, can taint the statements and make them involuntary and inadmissible in a military court. Major Hasan, when charged, must be treated for his wounds and recover sufficiently to participate in his defense.

Speedy Trial

The 120-day clock for a speedy trial begins after a military member is served a charge sheet or placed in confinement. The speedy trial count down of 120-days can be delayed by either the prosecution or defense. Either the prosecution or defense presents a motion to a military judge who can deny, approve, or revise the request. The reasons for delay include but are not limited to, recovery from medical issues, mental health evaluations, and the interview of witnesses or collection of evidence.

Rights Under the UCMJ

Major Hasan’s lawyer must protect the rights of his client as provided by the 5th Amendment to the Constitution. When a military member hires a civilian attorney or is provided an appointed military defense counsel, he or she has the same protections under the Uniform Code of Military Justice, as anyone facing criminal prosecution in the U.S.

The loss of Soldiers at Fort Hood yesterday is a tragedy and our sympathies go out to the families, the Fort Hood Community and our Army military brothers and sisters in arms. As the media argues about the next steps of dealing with the suspect who murdered 13 Soldiers and civilians at Fort Hood, those who work within the military justice system understand it is well equipped and practiced in dealing with misconduct in the military, including premeditated or unpremeditated murder.

Pre-Trial Custody

The suspect is in pre-trial custody, and his speedy trial clock has already begun to count down to his arraignment, normally required to be scheduled within 120 days. The convening authority, usually a general officer in the suspect’s chain of command, has the ability to extend that speedy trial clock for extenuating situations, such as allowing the United States Army Criminal Investigation Command to complete a thorough investigation.

CID Investigation

The Criminal Investigation Division (CID) in charge of the investigation gathers evidence and writes a report including a theory of the crime. This is sent to the convening authority, who reviews it and sends it to the base legal office for a legal review. The JAGs review the investigation and the applicable Uniform Code of Military Justice (UCMJ) and draft a charge sheet. This is sent back to the convening authority, who approves, modifies or deletes charges. It is then served on the military member, is assigned one or two military lawyers and soon thereafter appears in front of a military judge for an arraignment on the charges.

Military Justice System

This is clearly a situation that is tailor made for disposition totally within the military justice system. No one should question the capacity of all aspects of the military system to deal with this horrendous crime.

Military Investigation Services

Supporting or inhibiting this task is the investigation completed by the military services’ investigative arms. The Army Criminal Investigative Services (CID), Air Force Office of Special Investigations (AFOSI), Navy Criminal Investigative Services (NCIS), and Coast Guard Investigative Services (CGIS) all have the same focus – to discover the truth.

Military Seeking the Truth

Why is it that a defense or prosecution of a particular case is won or lost on the proof of truth based on the same investigation? Uniformed military attorneys serve as prosecution attorneys, defense attorneys, and sometimes judges during their careers in the military. Their ability to seek out the truth and represent the facts and intent of the defendant is one aspect of litigation. The seeking of truth is a principle that applies to all participants in a trial.

Military Rules of Behavior

Military lawyers must also analyze how the investigative service discovered evidence, how they interpret statements by witnesses and how they developed a sequence of events and timelines. The military criminal defense attorneys seek to clarify defendant’s actions (or inactions in some cases) within the principles of military rules of evidence, combat rules of engagement, operational tactics, techniques and procedures, and DoD, Service and Command conduct policies.

Military Legal Process

All of this information will be presented in a court of law, with appropriate procedures that protect the rights of the defendants and alleged victims. Anyone outside the process who publicly speculates about a rationale for action by any member facing military court-martial does an injustice to the rights conferred by the Constitution and our US laws.