- The Washington Times - Tuesday, June 1, 2010

Maj. Nidal Malik Hasan, facing 13 counts of premeditated murder, made his first in-person court appearance Tuesday, before military judge Col. James Pohl and won a request to delay the trial for four months.

Authorities said the hearings could have been held as early as July 1 if Col. Pohl hadn’t granted the request of Hasan defense attorney Col. John Galligan to delay them until Oct. 4. Col. Galligan told The Washington Times that granting more time in potential death-penalty cases is not unusual.

The Army psychiatrist’s appearance at the small fortified military courthouse at Fort Hood marked the first time he has been on base since the Nov. 5 shootings that left 13 dead and 32 wounded. According to wire reports from Texas, the wheelchair-bound Maj. Hasan — who was paralyzed during the attack — said nothing during the short hearing except when answering questions, and then only with soft direct replies such as, “Yes, sir.”

There is a possibility that another pre-trial hearing will take place July 19, according to officials at the Fort Hood press office and the defense attorney. “Something tells me that there’s going to be some type of summer hearing,” Col. Galligan said.

Discovery hearings will have to take place before the trial can start as scheduled in October.

Maj. Hasan will be tried under Article 32 of the Uniform Code of Military Justice, which outlines the protocols for investigating an officer. Col. Morgan Lamb of the 21st Calvary Brigade will preside over the Article 32 hearings.

The delay puts off expected prosecution efforts to make Maj. Hasan eligible for the death penalty. According to military law, Maj. Hasan could be sentenced to death by lethal injection only if the military jury determines his guilt unanimously and also decides without dissent that at least one aggravating factor exists in a murder case. Multiple deaths is one such aggravating factor.

Prosecutors are expected to ask that the case be filed as a general court-martial, the only kind of military trial that permits capital punishment, rather than a summary judgment. Most general courts-martial require at least five military members on a jury and a military judge, but capital courts-martial require 12 service members plus the judge.

Col. Lamb will recommend to Col. Pohl whether the Hasan case should become a capital trial.

Richard Rosen, an expert in military law from Texas Tech University, said the seriousness of the case calls for nothing less than a general court-martial — a judgment shared by Col. Galligan.

“This case will end up at the general court-martial, no doubt in my mind,” the colonel said.

Mr. Rosen said, however, that loopholes exist for Maj. Hasan to use. Should he choose to plead guilty, the maximum punishment he could receive is life without parole. The UCMJ does not allow guilty pleas in capital cases.

Hasan can always beat the deal,” said Mr. Rosen, who knows both Col. Galligan and Army prosecutor Col. Michael Mulligan. “An accused can always beat the deal.”

Col. Galligan said the next few months should provide plenty of time to review any remaining evidence in discovery procedures. The prosecution and the defense were both waiting on reports from the White House Director of Intelligence’s Review, FBI reports, an investigation about Maj. Hasan’s superiors at Walter Reed Medical Center and the investigation conducted at Fort Hood.

Col. Galligan expressed hopes that the case would steer away from the death penalty.

“I don’t think it’s appropriate,” he said. “I don’t think it’s right.”

The last military execution took place in 1961, when Army Pvt. John A. Bennett was hanged after being convicted of rape and attempted murder. The Death Penalty Information Center lists eight men on the military’s death row.