Fort Hood Mass Murderer Appeals His Death Sentence

JAMES NAULT APR 5, 2023 9:00 AM

It is my sad duty to bring you up-to-date on the death penalty appeal of ex-Army Major Nidal Hasan.

Hasan, as we reported on in detail, was unanimously convicted in August 2013 of 13 counts of premeditated murder and 32 counts of attempted premeditated murder for the November 2009 massacre in Fort Hood, Texas.  A 2019 USA Today article, in a ten-year retrospective, recounted the horrific details of the crime and the aftermath:

On Nov. 5, 2009, Hasan entered Fort Hood’s Soldier Readiness Processing Center, shouted “Allahu akbar” — “God is greatest” in Arabic — and fired 214 rounds in a fast-paced attack inside and outside the center.  Witnesses said he tended to target soldiers over civilians in the largest mass shooting on a military installation in U.S. history.At his court-martial in 2013, Hasan acknowledged that he was the shooter, called no witnesses and offered no evidence before he was convicted of 13 counts of premeditated murder and 32 counts of attempted murder.He was sentenced to death — under the Uniform Code of Military Justice, the only other option was life in prison without parole — stripped of his rank and dismissed from the Army.Hasan, 49, has since been held at the U.S. Disciplinary Barracks at Fort Leavenworth, Kan. — the Defense Department’s only maximum security prison, housing only male inmates.He is one of four inmates on the military’s death row, which is down an isolated corridor of the prison.

One fact USA Today left out is that Hasan “only stopped shooting when he was shot and seriously wounded by law enforcement officers responding to the scene.”  Hasan was shot seven times by law enforcement, and suffered a severed spine and severe lung damage, was left comatose for a period of time with resulting brain injury, and is paralyzed and permanently confined to a wheelchair.

Some other facts of interest include the following:

• “Those killed were Lt. Col. Juanita Warman, Maj. Libardo Caraveo, Capt. John Gaffaney, Capt. Russell Seager, Staff Sgt. Justin DeCrow, Staff Sgt. Amy Krueger, Spc. Frederick Greene, Spc. Jason Hunt, Spc. Kham Xiong, Pfc. Aaron Nemelka, Pfc. Michael Pearson, Pfc. Francheska Velez and civilian Michael Cahill.”  Pfc. Velez was pregnant at the time.
• “Years after the shooting, the Fort Hood Memorial Pavilion was built” at Fort Hood.  “It honors those who were killed and injured that day.”
• During the criminal proceedings, Hasan made it clear that he wanted to pursue a “defense of others” strategy – meaning that he wanted to justify his actions as proper because Hasan “believed by shooting soldiers at [Fort Hood] on November 5, 2009, he would prevent them from deploying—thereby protecting Mullah Omar and members of the Taliban.”  “The military judge…ruled that the defense of others failed as a matter of law.”
• “Although Hasan, who was radicalized by Imam Anwar al Awlaki and had business cards calling himself a ‘soldier of Allah,’ shouted ‘Allahu Akbar’ during his Nov. 5, 2009, rampage, the Obama administration stubbornly refused to classify the attack as an act of terrorism.  Instead, the Pentagon deemed it a case of ‘workplace violence,’ which made victims ineligible for the Purple Heart until Congress intervened.”
• “Evidence revealed during Hasan’s court-martial showed that warning signs were missed prior to the attack.  Hasan had corresponded via email with al Awlaki, then a wanted terrorist and the subject of a bungled top-tier FBI counterintelligence investigation under former FBI Director Robert Mueller.  In the 18 emails with al Awlaki, Hasan wrote about killing fellow U.S. soldiers and boasted that he considered himself an extension of al Awlaki and al Qaeda.”
• Fortunately, as we reported here: Purple Hearts Awarded to Fort Hood Victims, the military survivors of Hasan’s attack were awarded the purple heart in 2015, with Texas Governor Greg Abbott in attendance.  The civilian victim, Michael Cahill, was awarded the Defense of Freedom Medal.  “It is our hope today that we will help, in some small way, heal the wounds that you have suffered,” said Lt. Gen. Sean MacFarland, III Corps and Fort Hood commander.
• In a letter dated August 18, 2021, Hasan congratulated the Taliban on the Biden Administration’s withdrawal from Afghanistan, boasting “We Have Won.”  The letter also stated “Congratulations on your victory over those who hate for the Laws of All-Mighty God to be supreme on the land.  I pray to Allah that He helps you implement Shariah Law full, correctly and fairly.”

Per military law, Hasan’s sentence was subject to review and approval by the “convening authority,” i.e. the Army general who “convened” Hasan’s court-martial.  “The convening authority has discretion to mitigate the findings and sentence,” but in this case “[t]he convening authority approved the sentence as adjudged.”

Hasan appealed his death penalty sentence, and that appeal was heard by the Army Court of Criminal Appeals.  Military “Courts of Criminal Appeals review the cases for legal error, factual sufficiency, and sentence appropriateness.”  “On December 11, 2020, the Army Court [of Criminal Appeals] affirmed the findings and sentence.  On March 15, 2021, the Army Court denied [Hasan]’s motion for reconsideration.”

Hasan filed his brief with the United States Court of Appeals for the Armed Forces on March 21, 2022.  That court heard oral argument in the case last week, on March 28, 2023.

In Hasan’s appeal brief, he asserts that the following issues occurred during his criminal proceedings, and that an affirmative answer to any of them requires overturning his sentence:

1. “Whether the military judge erred in allowing [Hasan] to represent himself because [his] waiver of counsel was not voluntary or knowing and intelligent”
2. “Whether the total closure of the court over [Hasan’s] objection violated his right to a public trial”
3. “Whether the military judge erred” by allowing a juror Hasan claims was biased to be seated as a juror
4. Whether Uniform Code of Military Justice’s “prohibition against guilty pleas to capital offenses is constitutional”
5. Assuming for the sake of argument that the aforementioned prohibition IS constitutional, was Hasan’s offered guilty plea to a non-capital offense improperly handled by the court?
6. “Whether the prosecutor’s sentencing argument impermissibly invited the [jury] to make its determination on caprice and emotion”
7. “Whether continued forcible shaving of [Hasan] is punishment in excess of the sentence he received at his court-martial”
8. “Whether [Hasan] was deprived [of] his right to counsel during post-trial processing”
9. Whether one of the military attorneys assisting the prosecution should have been disqualified from doing so, as he, being part of the Fort Hood community, was personally affected by the mass shooting
10. Whether the Army Court of Appeals members were improperly seated because their supervisor was the aforementioned military attorney who allegedly improperly assisted in the prosecution
11. “Whether the convening authority was disqualified to perform the post-trial review of [Hasan]’s case after awarding purple heart medals to the victims of [Hasan]’s offenses”

Unfortunately, because the publicly released appeal briefs are so heavily redacted, it is impossible to adequately analyze them to determine if any of the issues Hasan raised might merit reversal of his conviction or death sentence.

“The Supreme Court of the United States has discretion under 28 U.S.C. § 1259 to review cases under the UCMJ on direct appeal where the U.S. Court of Appeals for the Armed Forces has conducted a mandatory review (death penalty…cases).”

If the Supreme Court were to affirm Hasan’s conviction and sentence, or decline to take the case, then “[t]he president must also weigh in with final say on the ex-soldier’s fate.  As commander in chief, the president is required to confirm an execution sentence or commute it to what would likely be life in prison.”

“If Hasan is put to death, it would be the first military execution since 1961, when ex-soldier John Bennett was hanged after being convicted for raping and attempting to kill a young girl.”

We will provide an update when the Court of Appeals rules on Hasan’s appeal and when or if the United States Supreme Court decides to take Hasan’s case.

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