The newly-appointed military judge in the court-martial of accused Fort Hood mass shooter Maj. Nidal Hasan ruled Wednesday that the beard which has delayed his trial for more than half a year is a matter for his chain of command and not a legal issue, a move which may prevent future delays.
Col. Tara Osborn 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 Hasan can plead guilty – and whether military rules allow her to accept such a plea – a decision that could dramatically alter the contours of 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 appear to 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.
And he may be able to plea guilty under a complicated scenario. Experts say Hasan could 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 obtain 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 potentia plea, which would not require prosecutors consent.
Under such a scenario, Hasan could use his guilty plea to the lesser charge to seek mercy in the sentencing phase in hopes of avoiding the death penalty.
On Wednesday, it appeared that Osborn was planning on a court-martial sooner rather than later. Worried that the Fort Hood courtroom is too small to seat all the potential jurors, she ordered prosecutors to present an updated seating plan.
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 may 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 a 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.
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.