how can a man who killed soldiers get a fair trial before a panel of Army officers?
The judge in the upcoming court martial of Ft. Hood shooting suspect Maj. Nidal Hasan today debated with attorneys the sensitive question of how to go about selecting a military jury to consider the case, as both sides wrestled with the question of how to make sure the man charged with killing 13 people on an Army post can get an impartial hearing from a jury made up of Army officers.
Col. Gregory Gross, the presiding officer, has granted defense attorney Lt. Col. Kris Poppe the right to obtain background information on hundreds of soldiers who may wind up in the jury pool. Poppe is also asking for specific detailed points to be included on a questionnaire to go to potential members of the panel, as juries are called in military court. That is apparently one of the sticking points as negotiations between the lawyers continue behind closed doors.
Hasan, 41, is charged with 13 specifications of premeditated murder and 32 specifications of premeditated attempted murder after he allegedly opened fire on a group of soldiers preparing to deeply to Afghanistan in November of 2009. He could get the death penalty if convicted. His court martial is set to begin at Ft. Hood August 20.
Selecting a panel may turn out to be the most difficult part of the entire process, according to Philip Anthony of DecisionQuest, a jury selection consulting firm, who is an expert on courts martial. Anthony is not involved in the Hasan trial.
"We have to keep in mind that soldiers are people too," he told 1200 WOAI news. "Soldiers who serve as jurors in trials like this come to court with an even more heightened level of bias, because this case was very upsetting to a group of soldiers whose feeling will be one of 'this happened in my own back yard to my own people'."
Under the Uniform Code of Military Justice, the panel must be made up of active duty soldiers, officers at the rank of Major and above unless Hasan specifically requests the panel to include enlisted personnel. Unlike civilian courts, the judge is included as a member of the panel. In most military trials, just a two thirds vote of guilty is needed to convict, but in capital cases like Hasan's, the decision to convict must be unanimous. In addition, the panel members must not be set for military deployment in 'the near time frame.'
"In a way, a trial like this is almost as through the jury in a murder cases all lived in the family where the murder occurred," Anthony said.
Anthony said that's the reason why Poppe is demanding specific questionnaires
"Generally in civilian jury trials there is not a lot known about prospective jurors," he said. "In this trial the records of the soldiers will be made available. But the legal team will have to understand the likelihood of ingrained prejudices about the correct outcome for the trial."
Criminal defense attorney Marcellus MacRae, who is an expert on jury selection with the prominent Los Angeles law firm of Gibson, Dunn, and Crutcher, agreed.
"You simply must be in a position to gain as much information about the backgrounds, the beliefs, the experiences of the people who will be on this panel, so you can make an informed determination about who will make the best juror," he told 1200 WOAI news.
MacRae is also not involved in the Hasan case.
He said Poppe is mainly on the lookout for potential jurors who 'firmly and aggressively' want to be a part of the jury so they can 'make a statement about what the outcome should be.'
Anthony said it will also be impossible for Poppe to find jurors who are not familiar with Hasan's case, and has not made up his or her mind about it.
"The trial team is writing questions to get at the behavior of a stealth juror, these would include inconsistencies in the ways prospective jurors answer the questions," he said. "Like if a prospective juror says he is very busy, and then goes out of his way to minimize their obligations and say yeah, I can definitely be here, I want to be here."
MacRae said while Army officers may feel that Hasan attacked members of their Army family, because they are military officers, they are used to following orders, and that will help them put their emotions aside.
"You want a fairness," he said. "People who will actually sit and observe and wait and see how the various pieces of the jigsaw puzzle that is a trial all crystallize before making a decision."
Under miltiary law, if Hasan is convicted, the panel will immediately convene to decide his punishment.