FORT HOOD — The logjam in court proceedings for Maj. Nidal Hasan appeared to clear Tuesday morning with a newly appointed judge’s decision not to challenge Hasan’s decision to wear a beard.
Judge Col. Tara Osborn addressed the matter at the end of her first hearing in the case against the accused Fort Hood shooter.
Osborn noted that Hasan was in violation of military appearance regulations. She then asked Hasan several questions about his decision to grow a beard.
Hasan appeared in court with a noticeably longer, bushy gray and black beard. As at previous hearings, he was dressed in an Army Combat Uniform and a green beanie.
Hasan answered questions indicating he voluntarily and freely chose to grow a beard. Osborn then warned Hasan that his beard could create bias in a jury consisting of commissioned officers.
“I’m not going to hold that against you, but some people on the panel may,” she stated.
Osborn requested lead defense attorney Lt. Col. Kris Poppe to draft an instruction for jurors that likely tells them to disregard Hasan’s appearance in making any judgment in his upcoming court-martial.
The judge’s order could eliminate the need to take up motions based on the Religious Freedom Restoration Act, which challenged the order to have Hasan forcibly shaved, citing the free practice of religion.
Hasan could face the death penalty if convicted of 13 charges of premeditated murder. He has indicated his intention to plead guilty to the capital charges, though the judge could choose not to accept them.
Pretrial hearings for the 42-year-old Army psychiatrist resumed Tuesday after military appeals courts halted proceedings Sept. 21, when judge Col. Gregory Gross ordered Hasan forcibly shaved.
Gross was eventually removed from the case by the Court of Appeals for the Armed Forces on the basis that his order to remove the beard had created a perception of bias in the case. In its ruling, the court stated the issue created a “battle of wills” between Gross and the defense.
Osborn was appointed to the case the same day the appeals court removed Gross. She is the chief circuit judge at Fort Bragg, N.C., and presided over one capital murder case during her military career.
Tuesday’s hearing opened with the defense asking Osborn several questions to gauge whether they had any challenges to her appointment to the case.
Osborn told the defense she had very little knowledge of the case and had been exposed to minimal news reports since the day of the Nov. 5, 2009, shooting that left 13 dead and dozens injured.
Osborn said she had no exposure to any memorial services following the shooting, had not heard any comments made by President Barack Obama regarding Hasan and had not read any of the Article 32 transcript.
After asking Osborn 25 questions, the defense told the judge they had no objections to her presiding over the case.
Though hearings will now move forward, the new judge will have to retread several issues that arose in hearings leading up to Hasan’s court-martial, which was scheduled to start in August 2011.
The defense told the court it had seven motions it wished to revisit because of new evidence and 14 additional motions it wished to relitigate.
Those included a request for moving the trial off Fort Hood, an objection to testimony from a terrorism expert that called Hasan a “home-grown terrorist” and the refusal of the government to provide evidence obtained through secret intelligence-gathering methods.
The prosecution also asked the court to take up a motion on the admissibility of telephone calls and transcripts likely from Bell County Jail, where Hasan has remained since April 2010.
The judge ordered the defense to prepare a schedule based on what motions it saw as the highest priority, which will be delivered to the judge Dec. 28. Poppe said discovery motions concerned him the most.
Osborn said she will then decide when pretrial hearings will take place in January.