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Beard, other issues remain for new Hood judge

Dec. 5, 2012 - 06:09PM   |   Last Updated: Dec. 5, 2012 - 06:09PM  |  
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The new judge taking over the Fort Hood shooting case will likely confront many of the questions that faced her predecessor, including one that helped lead to his removal: Should the suspect be allowed to keep his beard in court?

The shooting rampage that left 13 dead and more than two dozen wounded happened more than three years ago, but the case has had numerous delays, including over the beard issue. The previous judge, Col. Gregory Gross, was ousted Monday by the military appeals court, which raised questions about whether Gross appeared impartial.

The court's ruling noted what appeared to be a "duel of wills" between the judge and Maj. Nidal Hasan over the beard and other issues.

Hasan has previously indicated he would like to plead guilty, but he can't because the charges he faces carry a possible death sentence. A guilty plea to lesser charges that don't carry a possible death sentence would be permissible, but prosecutors would have to accept such an arrangement.

Gross' replacement on the case, Col. Tara Osborn, is likely to be asked to re-examine any number of Gross' rulings, including the beard issue.

"If I was the defense attorney, I would say, 'Guess what, I'm going to go back and re-litigate every issue,'" said Victor Hansen, a former Judge Advocate General's Corps officer who teaches at the New England School of Law.

Hasan began growing his beard while in custody. He says it's a requirement of his Muslim faith, but facial hair violates Army regulations. Gross cited him six times for contempt of court and ordered him out of the courtroom before ordering that Hasan be forcibly shaved if he did not remove the beard himself before trial.

Hasan appealed, leading to the decision by the U.S. Court of Appeals for the Armed Forces to remove Gross from the case. The court signaled that local command, not Gross, was responsible for enforcing grooming standards.

Hansen said he expected Osborn would "be very leery to get stuck in this rat-hole again" and is unlikely to try to order Hasan shaved.

But the beard could affect how Hasan is perceived by military panelists deciding his fate and could become the basis of an appeal if he's found guilty, Hansen said.

"That's not going to help his case in any way, shape, or form," he said. "And frankly, it could prejudice the military panel."

John Galligan, Hasan's former attorney and a retired military judge, said the beard issue had taken on enough importance that Osborn would likely have to address it.

"The issue has developed in such a unique manner, I'm afraid, it's ultimately going to have to be addressed on the record by the judge," Galligan said.

The Army declined to comment Wednesday on when any hearings might take place in the case.

And before Osborn decides how to handle the beard or any other case issues, a hearing might be necessary to determine if she has any potential or perceived sources of bias, including whether she had spoken to Gross about the case, Galligan said.

"It's not at all unusual that judges will frequently discuss issues in a pending case with some of their colleagues," said Galligan, a retired Army colonel. "Just because she's been put on the case doesn't mean that she can't be challenged by either side."

Hasan's case is another example of how death-penalty cases in military courts are frequently delayed.

The last military execution was in 1961. Six people are on the military death row in Fort Leavenworth, Kan., but none are close to execution.

Military courts have relatively little experience in capital cases compared to the federal and many state civilian systems. A study published last year in the Journal of Criminal Law and Criminology showed that 15 people had been sentenced to death in military courts between 1984 and 2005. Nine of those sentences were vacated or overturned, often due to problems at trial.

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