A high military court has ordered the removal of the judge in accused Fort Hood shooter Maj. Nidal Hasan’s court-martial, stating the judge showed bias by ordering Hasan forcibly shaved.
The Court of Appeals for the Armed Forces stated in a ruling issued late Monday that Fort Hood judge Col. Gregory Gross showed an appearance of bias against Hasan in that order and repeated contempt citations.
The court nullified Gross’ order to have Hasan forcibly shaved and vacated six findings of contempt Gross had issued against Hasan for breaking military appearance regulations by wearing a beard.
The court made no ruling on whether Hasan could be forcibly shaved, stating it would take up the matter if the next military judge assigned to the case addresses the issue, the ruling stated.
Hasan has maintained he began growing a beard in May because of religious purposes.
A devout Muslim, Hasan has stated a premonition of his death led him to defy military regulations.
The ruling throws yet another wrench into the procedures leading up to Hasan’s court-martial.
The 42-year-old Army psychiatrist could face the death penalty for 13 counts of premeditated murder and 32 counts of attempted premeditated murder in connection with the Nov. 5, 2009, mass shooting on post.
Gross presided over the case since charges were brought against Hasan in 2010. Gross is the chief circuit judge at Fort Hood, and viewed hundreds of exhibits and made dozens of rulings in the case during numerous pretrial hearings.
All of those rulings will now have to be reviewed, Hasan’s former counsel John Galligan said.
Any new judge will have to be assigned by officials in Washington, D.C., and Gross’ removal could easily delay Hasan’s trial for months, the Belton attorney said.
“This never should have happened,” Galligan said. “This was a sideline issue that the government took and just stepped all over it in the appeals.”
Hasan’s court-appointed military defense attorneys had challenged whether Gross violated Hasan’s free practice of religion by holding the major in contempt and ordering him forcibly shaved.
They also repeatedly challenged whether Gross illustrated bias in his rulings.
Monday’s ruling states that, at the very least, an outsider would have doubts about Gross’ impartiality.
Courts had repeatedly ruled in Gross’ favor in previous attempts to have him removed from the case.
However, in an Oct. 18 ruling by the U.S. Army Court of Criminal Appeals, two dissenting judges stated Gross should never have taken up the beard matter.
Any order to have Hasan shaved should have been made by Hasan’s chain of command.
Throughout pretrial hearings, Gross called Hasan’s appearance “disrespectful” and “disruptive.” He refused to allow Hasan in the courtroom except to hold him in contempt.
During those hearings, Gross would then remand Hasan to a trailer adjacent to the courtroom, where Hasan watched on a closed-circuit television.
Gross’ rulings amounted to a “duel of wills” between him and Hasan, the ruling stated.
To avoid any further litigation on the matter, the next judge could either follow the blueprint issued in the Army appeals court’s ruling or seek a compromise with the defense.
Prosecutors have argued Hasan’s beard would create enmity between him and a jury of 12 commissioned officers.
A judge can choose to issue an instruction to jurors, telling them to ignore any regulation violations when deciding Hasan’s guilt or innocence.
Contact Philip Jankowski at email@example.com or (254) 501-7553