Nidal Hasan, an Army psychiatrist, is charged in the deadly 2009 Fort Hood shootings. (Bell County Sheriff's Department via The Temple Da)
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FORT WORTH, Texas — The Army psychiatrist charged in the Fort Hood shooting rampage should be forced to shave his beard to avoid any potential jury bias in his pending murder trial, say some military experts and the judge overseeing his pending court-martial.
Maj. Nidal Hasan has grown the beard in violation of Army policy and says he wants to keep it for religious reasons. If he's not forced to shave and is subsequently convicted in the 2009 attack on the Texas Army post, the issue could also become grounds for an appeal.
Military trials are very formal and the juries expect all regulations to be followed, down to the smallest detail, some legal experts said.
"I've seen a judge send a soldier out of the courtroom because his uniform wasn't right — his medals weren't in order or his tie wasn't tied right," said Ret. Army Maj. Gen. John Altenburg, a former deputy judge advocate general who now is an attorney in private practice. "Jurors get a first impression of that defendant, and at worst it's neutral and at best it's positive."
Hasan faces the death penalty or life in prison without parole if convicted in the November 2009 attack that killed 13 people and wounded more than two dozen others at Fort Hood, about 125 miles southwest of Fort Worth.
Hasan first showed up with a beard at a pretrial hearing in June, saying it's an expression of his Muslim faith. The judge said he would order Hasan to shave before trial if he didn't shave himself.
Hasan went to the military appeals court after top Army officials in June denied his request for a waiver to the no-beard rule based on religious grounds. On Monday, the U.S. Court of Appeals for the Armed Forces ruled that Hasan's appeal was premature, saying the judge, Col. Gregory Gross, hasn't issued a definitive order for Hasan to be forcibly shaved.
Experts say Gross is likely to order Hasan to be forcibly shaved and that Hasan will appeal again.
Hasan's court-martial had been scheduled to start Aug. 20, but all court proceedings were put on hold while Hasan's appeal was being considered. A new trial date has not been set since the military appeals court lifted that delay.
Hasan would not be the first military defendant forcibly shaved.
The Army has done it to five inmates since 2005, including one person who was forcibly shaved twice, according to the Army's Office of the Chief of Staff. The most recent was in June 2011 for a soldier stationed at Joint Base Lewis-McChord near Tacoma, Wash. It's not clear if any of those inmates asked for waivers on religious grounds. The Army declined to release details, including the soldiers' names, saying it would invade their privacy and the shavings are not public events.
The Army has specific guidelines on forced shaving. A team of five military police officers restrains the inmate "with the reasonable force necessary," and a medical professional is on hand in case of injuries. The shaving must be done with electric clippers and must be videotaped, according to Army rules.
Hasan's attorneys say he believes not having a beard is a sin and doesn't want to die without one since his premonition that his death is imminent.
Gross has banned Hasan from the courtroom since the June pretrial hearing, calling the beard a disruption, and sent him to a nearby room to watch the proceedings on a closed-circuit television. The judge later said he wants Hasan in the courtroom during the trial to prevent a possible appeal on the issue if he is convicted.
Gross has said that forcibly shaving Hasan would not violate his religious freedoms because those who join the military have agreed to follow its rules. Prosecutors say they doubt religion is Hasan's motive, noting he was clean-shaven at the time of the shooting.
Just because Hasan has chosen to grow a beard doesn't mean the judge must "take the dare and run the risk that the accused (soldier) will further inflame the (jury) to his own detriment," attorneys for the Gross wrote in their response to the appeals court. "The military judge need not stand by as (Hasan) injects potential error into the court-martial."
Experts say exceptions to the no-beard rule are rare, except in temporary medical cases where a soldier has skin problems. Army officials say six soldiers have received waivers to grow beards for religious reasons since 2009 — two Muslim doctors, three Sikhs and one Jewish rabbi — but none were defendants in criminal cases, unlike Hasan.
The New York rabbi, Menachem Stern, was allowed to be a chaplain with a beard after the government reached a settlement in his federal discrimination lawsuit alleging the Army had waived its no-beard rule for other religions. Stern also pointed out that Col. Jacob Z. Goldstein, who some call the Army's white-bearded rabbi, had been serving since the 1970s after receiving an exemption to the rule.