Judge rules issue of Hasan's beard is responsibility of military chain of command
By Jeremy Schwartz | Austin (Texas) American-Statesman | Published: January 31, 2013
AUSTIN, Texas -- The newly appointed military judge in the court-martial of accused Fort Hood mass shooter Maj. Nidal Hasan ruled Wednesday that questions over Hasan's beard, which have delayed his trial for more than half a year, are a matter for his chain of command and not a legal issue, a move that might prevent future delays.
Col. Tara Osborn, who also Wednesday rejected a defense motion to throw out the death penalty as a potential punishment, said that she will likely set a new trial date at Hasan's next hearing at the end of February.
At that time she will also rule on whether military regulations allow her to accept the guilty plea Hasan is seeking to enter -- a decision that could dramatically alter the court-martial.
Hasan faces the death penalty on 13 counts of premeditated murder and 32 counts of attempted premeditated murder in connection with the Nov. 5, 2009, mass shooting at the Army post.
While military rules don't allow a military judge to accept a guilty plea on charges that could result in the death penalty, Hasan's lawyers have repeatedly indicated that the Army psychiatrist wishes to plead guilty. "He doesn't have any questions about his guilt," said Maj. Joseph Marcee, one of Hasan's appointed military lawyers, on Wednesday.
Experts say Hasan could potentially plead guilty to unpremeditated murder, which does not carry a capital punishment. If Osborn accepted that plea, prosecutors would then have to go before a jury to prove the premeditation aspect, but not the murder charges, to make Hasan eligible for a death penalty verdict.
"I think it's a strong possibility," said military law expert Geoffrey Corn, a professor at the South Texas College of Law, of the potential plea scenario, which would not require prosecutors consent.
Hasan could conceivably use his guilty plea to the lesser charge to seek mercy in the sentencing phase in hopes of avoiding the death penalty.
Hasan was supposed to go to trial in August, but a military appeals court halted the case because of arguments over his beard, which violates Army grooming standards.
Osborn might have removed a major reason for delay when she rejected a defense motion to allow Hasan to keep his beard for religious reasons. She said that is a decision for Hasan's commanders, taking a different approach than her predecessor, Col. Gregory Gross, who clashed with Hasan continuously over his beard and was ultimately removed from the case late last year by a military appeals court over the issue.
It was unclear Wednesday whether Hasan's commanders would seek to have him forcibly shaved.
Also Wednesday, Osborn took up a number of issues that Gross had previously ruled on at the request of Hasan's attorneys, who argued that Gross held a bias against Hasan.
But Osborn did not reverse any of Gross's decisions, denying the motion to set aside capital punishment in the case on constitutional grounds. She also denied defense requests for victim outreach specialists and a media expert who could potentially bolster Hasan's case for a change of venue.
Defense attorneys also asked Osborn for breaks during upcoming hearings and the trial to allow Hasan to pray. Observant Muslims pray five times a day, as prescribed by their faith. Osborn said she would accommodate Hasan, who sat quietly in his wheelchair dressed in his Army uniform and wearing a thick beard.
Beginning Feb. 27, Osborn will hold up to three days of hearings. During that time, she will hear arguments on other motions ruled on by Gross during the half dozen hearings last year when he ordered Hasan out of the courtroom and into an adjacent trailer equipped with a live feed of proceedings because of his beard.