Posted: Aug 29, 2013 7:45 AM
FORT HOOD - If Nidal Hasan plans to welcome a death sentence as a pathway to martyrdom, the rules of military justice won't let him go down without a fight - whether he likes it or not.
The Army psychiatrist was sentenced Wednesday to die for the 2009 Fort Hood shooting rampage that killed 13 people and wounded more than 30. But before an execution date is set, Hasan faces years, if not decades, of appeals. And this time, he won't be allowed to represent himself.
"If he really wants the death penalty, the appeals process won't let it happen for a very long time," said Joseph Gutheinz, a Texas attorney licensed by the United States Court of Appeals for the Armed Forces. "The military is going to want to do everything at its own pace. They're not going to want to let the system kill him, even if that's what he wants."
Hasan opened fire at a Fort Hood medical center packed with soldiers heading to or recently returned from overseas combat deployments. He also was set to soon go to Afghanistan to counsel soldiers there, and said he carried out the attack to protect Muslim insurgents on foreign soil.
During trial, Hasan acknowledged that evidence showed he was the gunman, and put up virtually no defense of his actions. He's suggested in writings that he would "still be a martyr" if he received death. At trial, Lt. Col. Kris Poppe, a standby military attorney assigned to Hasan, told the judge that Hasan's "goal is to remove impediments or obstacles to the death penalty."
Now that Hasan's been sentenced to death, a written record of the trial will be produced and Fort Hood's commanding general will have the option of granting clemency. Assuming none is granted, the case record is then scrutinized by the appeals courts for the Army and armed forces.
If Hasan's case and death sentence are eventually affirmed, he could ask the U.S. Supreme Court for a review or file motions in federal civilian courts. The president, as the military commander in chief, also must sign off on a death sentence.
That process is anything but speedy. The military hasn't executed an active-duty U.S. soldier since 1961.
As the appeals proceed, Hasan is going to military death row at Fort Leavenworth, Kan. He was shot in the back during the rampage, paralyzing him from the waist down. He is confined to a wheelchair and requires specialized care - though the death row facility has a health clinic that apparently can meet his needs.
Military appeals courts have overturned 11 of the 16 death sentences of the last three decades - and that doesn't include former Senior Airman Andrew P. Witt, who is one of five men on military death row but whose sentence was ordered reopened recently on appeal.
There's no way to estimate how long the appeals process could take for Hasan or any other case. The longest current case is that of Ronald Gray, a former Army cook at Fort Bragg in North Carolina who was convicted in 1988 on 14 charges, including two premeditated murders.
Once his appeals begin, Hasan will be assigned military counsel. He could also choose to retain civilian lawyers.
John Galligan, a retired Army colonel who was Hasan's former lead civilian counsel, said he doesn't believe Hasan is seeking execution, as his appointed standby lawyers at trial have suggested. He has met with Hasan frequently during the trial and said several civilian attorneys - including anti-death penalty activists - have offered to take on his appeal.
Galligan estimates the military has already spent more than $6 million on Hasan's trial. He said that will triple during appeals, which he believes will take longer than Hasan's remaining life expectancy.
"This will invariably be an appeal that will take decades," Galligan said, "and, Maj. Hasan, I don't know if he'll ever survive it." He added: "If anything's going to kill Hasan in the short term ... it will probably be natural causes due to his medical conditions."
Hasan may have a plausible appeal on the grounds that he was never competent to represent himself at trial. Gutheinz said that argument could be complicated somewhat if Hasan refuses help from any civilian attorneys and is reluctant to cooperate with assigned military counsel - but that may not make things go any faster since there will be pressure for the military system to move cautiously on such a high-profile case.
"Obviously this appeal will have high visibility but I believe, if anything, it will be a slower process," Gutheinz said.
Keely Vanacker, whose father Michael Cahill was gunned down when he charged Hasan with a chair to try and stop the rampage, said she knows that the lengthy appeals process means Hasan is likely to die in prison.
"As long as I don't ever have to see him in the media again," said Vanacker, "that matters more to me than whether or not he's put to death."
Kathy Platoni, who still struggles with images of Capt. John Gaffaney bleeding to death at her feet, said she was surprised he was sentenced to death partly because the families had talked openly about their desire to deny Hasan the right to perceive himself as a martyr. Still, she wasn't opposed to the punishment.
"I don't know how long it takes for a death sentence to be carried out," Platoni said, "but the world will be a better place without him."
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