The defense team for accused Fort Hood shooter Maj. Nidal Hasan on Wednesday began what could be the last phase of a protracted appeals battle that has held Hasan’s trial in limbo for months.
The prosecution filed two writs to the Court of Appeals for the Armed Forces on Wednesday night, asking the court to prohibit the U.S. Army from shaving Hasan, overturn contempt rulings and remove the presiding Fort Hood judge from the case.
No immediate timeline was available for a ruling, but this latest round of arguments should be the last hurdle cleared before Hasan’s trial is allowed to begin. It took about a month for Hasan’s appeals to be denied by a lower court.
The Court of Appeals for the Armed Forces, the highest military court, is the last stop for Hasan’s appeals before the U.S. Supreme Court.
Hasan’s former defense attorney, John Galligan, said the trial likely would be allowed to resume even if the Supreme Court decided to take up the matter.
“It would be viewed as more of an intellectual matter,” Galligan said. “I don’t see (the Supreme Court) staying it on these particular issues.”
Again, Hasan’s government-appointed attorneys have sought to disqualify Fort Hood judge Col. Gregory Gross for his handling of legal arguments about Hasan’s decision to grow a beard.
Though their arguments surround the same points, Hasan’s defense team continued to add in the most recent filings examples of where they believe Gross erred or illustrated animus toward Hasan.
Hasan’s attorneys cited numerous examples they said showed or added to Gross’ bias, including that Gross was on post when the Nov. 5, 2009, shooting occurred, his decision to hold numerous shortened contempt hearings without allowing testimony, fining Hasan repeatedly for growing a beard and incidents where the judge cleaned up soiled adult diapers left by Hasan in a bathroom at the courthouse.
The appeal also states that Gross acted favorably toward the prosecution by granting them hearings without consulting the defense and acting upon a request to have a contempt-of-court hearing for Hasan.
The defense team also said Gross became “analogous to a prosecutor,” by holding the summary contempt proceedings.
In six hearings leading up to the trial delay, Gross held Hasan in contempt for disobeying his rule to appear clean shaven. At each hearing, he fined the 42-year-old Army psychiatrist $1,000.
Hasan first appeared with a beard he claims to have grown for religious purposes in June. In the latest filing, his attorneys pointed to Gross’s perceived reversal.
At the outset, Gross noted that he had no reason to disbelieve that Hasan had grown his beard out of religious faith, but that it defied military regulations.
As the hearings progressed, Gross became skeptical when the prosecution argued that Hasan could have grown a beard in order to prevent witnesses from identifying him at trial.
The prosecution also stated that Hasan could have grown a beard purely to defy the Army and government and to identify with the mujahideen.
Hasan has told the court his imprisonment, medical condition and a premonition of his own death led him to deepen his faith and grow a beard.
“I determine that I couldn’t risk death without having taken this mandatory step along a pious Islamic path,” he has stated. “Regardless of how long I live or when I may die, I believe my faith requires me to grow a beard.”
Hasan is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder. If convicted, he could face the death penalty.