Retired Army lawyer, Col, John T. Galligan, has a tough job when he sets out to defend man who was seen by many to have killed 13 people in a rampage -- and few legal options.
The arraignment is supposed to take place within 120 days of the filing of charges, but the defense can request to delay the trial and a change of venue during that period. The inquiry into the defendant’s mental condition, which can also lead to delays, generally takes place before the trial begins.
Colonel Galligan would not say whether he would argue that his client is not mentally competent, but that is likely to be an essential part of the case, experts said. Questions of whether Major Hasan lacked what the military refers to as “mental responsibility” at the time of the act could be used to undercut the government’s allegation of premeditation.
The defense is also likely to ask whether the military should have done more to prevent the shootings.
“I would be trying to show the military had more than fair warning that this guy was unstable,” Mr. Dunn said.In a court-martial, it is rare for defendants to be acquitted on grounds of insanity, said Eugene R. Fidell, the president of the National Institute of Military Justice, and it is possible that Major Hasan could refuse to claim mental impairment.
“Defense counsel have to take instructions from the client,” he said.
Mr. Fidell, who teaches military law at Yale, said that Major Hasan’s religion was a particularly delicate issue and that defense lawyers might well try to keep elements of it out of the trial. The phrase that several witnesses said they heard him shout before the shooting — “Allahu Akbar,” or “God is Great” — is “wildly inflammatory,” Mr. Fidell said, raising the possibility that a judge could decide to exclude it to avoid a prejudicial effect.
I wonder whether a Christian mass killer, yelling "God help me," would be held to the same account.
Major Hasan’s lawyer could try to reach a plea agreement for something less than the death penalty, said Jack B. Zimmermann, a retired Marine who heads the military law committee for the National Association of Criminal Defense Lawyers. But if the trial goes forward, as is considered likely, Colonel Zimmermann suggested that defense lawyers might try to bring up “unlawful command influence.”
The term refers to undue pressure from military leaders on judges or members of a court-martial panel to find a defendant guilty. Colonel Zimmermann said, “that could be an issue that, at least, would have to be looked at by the defense, and that the prosecution could be worried about.”
