Fort Hood suspect still faces possible execution

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Associated Press

Posted on January 30, 2013 at 3:05 AM

Updated Thursday, Jan 31 at 11:32 AM

FORT HOOD, Texas (AP) — The Army psychiatrist charged in the Fort Hood shooting rampage still faces the death penalty if convicted in the worst mass shooting on a U.S. military installation, a judge ruled Wednesday.

A trial date was not set for Maj. Nidal Hasan, whose attorneys say he wants to plead guilty to 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the 2009 attack on the Texas Army post.

The judge, Col. Tara Osborn, said she would consider Hasan's motion at a hearing next month, but Army rules prohibit judges from accepting guilty pleas in death penalty cases. Under the military justice system, a commanding general decides if the death penalty will be sought, and plea bargains in capital cases are not allowed.

Hasan's attorneys have filed motions indicating that if his current guilty plea isn't accepted, he instead will plead guilty to unpremeditated murder, which does not carry the death penalty. Even if the judge accepts Hasan's guilty pleas to lesser charges, Hasan still would face a death sentence if prosecutors decide to move forward with the trial and jurors convict him on his original charges, military law experts said.

"I'm 100 percent confident that the prosecutors would go forward with a trial," said Jeff Addicott, director of the Center for Terrorism Law at St. Mary's University School of Law in San Antonio, who is not involved in Hasan's case. "They've been preparing this case for three years, and they're ready. And the families deserve justice. This is a death penalty case."

Hasan faces execution or life in military prison without parole if convicted.

Hasan, 42, paralyzed from the waist down after being shot by police the day of the rampage, had a thick black beard as he sat in his wheelchair by his attorneys Wednesday. Hearings set for Thursday and Friday were canceled because all matters on the judge's agenda had been discussed.

Defense attorneys had argued that Hasan should be spared a possible death sentence because the military justice system's process for deciding capital cases is unfair and inconsistent. They also claim Fort Hood's commanding general was not impartial when he decided in July 2011 that Hasan would face the death penalty.

Witnesses have said that a gunman wearing an Army combat uniform opened fire after shouting "Allahu Akbar!" — or "God is great!" in Arabic — inside a crowded medical building on Nov. 5, 2009, where deploying and returning soldiers received vaccines and other tests. Hasan was also about to deploy to Afghanistan.

Hasan's trial was to start in August but was put on hold when he appealed the former judge's order saying his beard would be forcibly shaved before the court-martial unless he shaved it. Although facial hair violates Army rules, Hasan first showed up in court in June with a beard, later saying it was required by his Muslim faith.

After a few rounds of appeals, the military's highest appeals court in December tossed out the judge's order and removed him from the case, saying that he appeared to show bias against Hasan in some instances. Osborn then was appointed to oversee the case.

In December, during Osborn's first pretrial hearing in the case, she told Hasan that she won't hold the beard against him but that military jurors might. Jurors likely would be told not to consider Hasan's appearance when deciding on a verdict.

Osborn also ruled Wednesday that she doesn't have the authority to rule on whether the previous judge's orders for Hasan to shave violate his religious freedom. The military appeals court's December ruling did not address that issue. That means Osborn won't order Hasan to shave.

She denied Hasan's request to stop his chain of command from ordering him to shave, although it's unclear if that has happened.

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