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November 12, 2009

Fort Hood shooter formally charged with 13 capital counts of premeditated murder

As detailed in this new New York Times piece, "Military prosecutors have charged Maj. Nadil Malik Hasan with 13 counts of premeditated murder in last week’s shooting rampage at Fort Hood, Tex., a spokesman for the Army criminal investigation division said Thursday." Here are more of the legal details, with a death penalty spin:

The 13 charges against Major Hasan are “initial charges,” said the Army spokesman, Chris Grey, “and additional charges may be preferred in the future, subject to the ongoing criminal investigation.”...

The Uniform Code of Military Justice provides the death penalty as a possible punishment for 15 offenses, many of which must occur during a time of war, the center says. All nine men on the military’s death row were convicted of premeditated murder or felony murder.

There has not been a military execution since 1961, although nine men are on the military’s death row at Fort Leavenworth, Kan., according to the Death Penalty Information Center. The president has the power to commute a military death sentence, and no military prisoner can be executed without the president’s approval.

President George W. Bush approved the execution of one of the nine, Pvt. Ronald A. Gray, on July 28, 2008. Private Gray was convicted by court-martial of two murders, an attempted murder and a series of rapes around Fort Bragg, N.C., more than two decades ago. Lethal injection is now the method of execution, the Death Penalty Information Center says.

The last military prisoner to be executed was Pvt. John A. Bennett, who grew up in southern Virginia and was hanged at Fort Leavenworth on April 13, 1961, three days past his 26th birthday for the rape and attempted murder of an 11-year-old Austrian girl in December 1954.

In 1957, President Dwight D. Eisenhower approved Private Bennett’s execution, and President John F. Kennedy declined to grant clemency, although he did commute one military death sentence in 1962.

Private Bennett’s execution got relatively little attention at the time because the previous day the Soviet Union had launched the first person, Yuri Gagarin, into space, and several days later the Bay of Pigs invasion took place in Cuba.

November 12, 2009 at 03:32 PM | Permalink


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Suppose Major Nadil Malik Hasan, rather than defend himself on the merits, claiming mental illness perhaps, instead waives a right to counsel to the extent permitted by military law, say that he did it and that he's proud he did and would do it again, and confesses in open court saying that he is fighting the evil empire.

IIRC, there is some non-waivable discretionary review. As his counsel, you probably try to show that he is incompetent against his wishes. The result then becomes either a guilty conviction with a likely death sentence that may jump on a fast track basis over other military death row cases, or protracted sanity litigation against the stated wishes of someone who may be insane, or may not be.

Law and order types, presumably, would prefer the swift death penalty. But, does an execution in the face of that kind of defense advance or hurt the cause of U.S. national security by creating a martyr? From a criminal justice perspective, this guy, if he is really sane, is the kind of case that the death penalty is designed to cover. But, this isn't a criminal court, it is military justice and part of the reason for command authority review of courts-martial is to give military officers the chance to consider national security issues that may override what the UCMJ permits.

One other quick note. While he is a Major, since he is an M.D., he probably was promoted to Major with far less immersion in military culture and a much shorter period of service than a typical officer of this rank (JAG officers are similar). While the appeals process is longer, would it better serve the ends of charactizing his crime in a way that advances U.S. national security to try in for murder in a U.S. District Court like any other civilian's criminal trial, rather than in military court? Senior AUSAs have much more experience trying serious criminal cases that military lawyers (because soldiers don't commit as many), and trying him as a criminal in the criminal justice system deflates some of the political message that the Fort Hood shooting may have been intended to make.

Posted by: ohwilleke | Nov 12, 2009 5:13:20 PM

Wow. This will make everything better.


How about something that says "NO!" to more pointless killing?


That would just not be viscerally satisfying enough. Gotta have some more death.

Posted by: Anon E-mouse | Nov 12, 2009 6:11:17 PM

The U.S. is comprised of about 65% Neanderthals and the numbers are holding steady over time.

So much for evolution.

Posted by: Scott Taylor | Nov 12, 2009 6:16:30 PM

Scott Taylor --

"The U.S. is comprised of about 65% Neanderthals and the numbers are holding steady over time."

But you are among The Enlightened, as declared by -- you.

Was John Milton a Neanderthal too? How about Eisenhower? FDR? Lincoln?

Where is the evidence that you're morally superior to those people?

Posted by: Bill Otis | Nov 12, 2009 7:25:32 PM

Bill --

Do you consider yourself morally superior to those who oppose the death penalty? If so, please provide the evidence.

Posted by: sage | Nov 12, 2009 8:50:06 PM

back to Bill's standard response...list famous, well-respected people and ask if you're morally superior. great point!


Posted by: neanderthal | Nov 12, 2009 9:20:49 PM

neanderthal --

"back to Bill's standard response...list famous, well-respected people and ask if you're morally superior. great point! pre-dict-a-ble!!"

And unanswered.

Posted by: Bill Otis | Nov 12, 2009 9:38:28 PM

The cognoscente believe that anyone in favor of the death penalty is a neanderthal. I thought stereotyping was verboten to the cognoscente.

Posted by: mjs | Nov 12, 2009 9:38:58 PM

sage --

"Do you consider yourself morally superior to those who oppose the death penalty? If so, please provide the evidence."

Depends on who we're talking about. I consider myself morally superior to the Beltway sniper, John Couey and Timmy McVeigh, you bet. If you need evidence of that, you're beyond help.

If, on the other hand, the question is whether I consider myself morally superior to people like Prof. Anthony Amsterdam (a brilliant man and DP opponent), the answer is no.

The difference, Mr. Sage, is that I don't call the opposition neanderthals, but many on your side do exactly that time and again. And you know it. Do you approve of it?

Posted by: Bill Otis | Nov 12, 2009 9:48:38 PM

mjs --

Stereotyping is only verboten if you're a conservative.

Posted by: Bill Otis | Nov 12, 2009 9:52:34 PM

PC caused this catastrophe. All PC is case. It must be purged from all American institutions. Any general who has ever made a statement supporting diversity must be forced to resign or fired with no benefits.

There should be zero tolerance for PC. Because diversity is a land piracy lawyer operation, a bogus pretext for lawyers to plunder productive parties.

Posted by: Supremacy Claus | Nov 12, 2009 10:12:24 PM

Expert: PC caused massacre.


Posted by: Supremacy Claus | Nov 14, 2009 6:14:54 AM

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