Maj. Nidal Hasan

FORT HOOD — Army lawyers sparred Tuesday over the admissibility of evidence that could bolster the government’s case for putting the alleged Fort Hood shooter to death.

Contested evidence included testimony from a witness to the shooting who heard a pregnant woman cry out for the life of her unborn child before Maj. Nidal Hasan allegedly shot her.

The victim, Pvt. Francheska Velez, 21, died as a result of the shooting. Hasan was never charged for the death of her unborn baby.

Tuesday’s hearing was another in a series of pretrial hearings leading up to jury selection in Hasan’s long-awaited capital murder court-martial.

Continued sparring showed the two sides have much left to argue before jury selection begins May 29; however, presiding judge Col. Tara Osborn hinted that any further delays are now out of the question.

Testimony is set to begin July 1 and could last for months. The trial could include testimony from more than 300 witnesses.

Hasan’s military-appointed defense team Tuesday challenged several pieces of evidence the prosecution aims to use to prove the Nov. 5, 2009, mass shooting on post was a premeditated act. Evidence proving it was premeditated would be critical for garnering the 42-year-old Army psychiatrist the death penalty.

Among the items challenged was an email that, according to the prosecution, shows Hasan intentionally targeted a specific unit when he allegedly killed 13 at the Soldier Readiness Center.

Hasan had been set to deploy with the 467th Combat Stress Control Detachment, though he was never a member of the Army Reserve unit. The prosecution plans to introduce an email Hasan received stating the date the unit would be processed through the readiness center, the same day of the shooting.

“In this little world, that doesn’t happen by accident,” prosecutor Col. Steve Henricks said. “This unit was not attacked by accident. ... In that light, it becomes evidence of planning and preparation.”

Three members of the unit died in the attack.

Arguments in Tuesday’s pretrial hearing also showed some defense witnesses, including members of Hasan’s family, may refuse to testify.

Hasan’s lawyers have filed a motion for the government to compel testimony of 59 individuals who would possibly refute the government’s contention that Hasan became a radicalized Muslim leading up to the mass shooting.

The prosecution is seeking to block their testimony because they are unsure what the witnesses may say in court. Lead prosecutor Col. Mike Mulligan said many of the listed witnesses have retained attorneys to avoid testifying, been directed by family members to not cooperate or are not returning telephone calls.

“None of our witnesses are happy to have been called,” Lead Defense Attorney Lt. Col. Kris R. Poppe told the court. “Nevertheless, we have identified them as critical to our defense.”

Possible witnesses include Hasan’s brother, at least one cousin and people who encountered Hasan at mosques and Islamic activities.

Mulligan said he foresees problems arising with the witnesses during trial. Without their cooperation, the prosecution would not be able to prepare for their cross-examination.

If witnesses refuse to testify, U.S. Marshals may take them into custody for transport to the trial.

Presiding Judge Col. Tara Osborn said the defense would have to submit a more complete motion before she would make any ruling. Hasan’s lawyers neglected to provide an adequate synopsis of what their witnesses would say in court, leading her to agree with the prosecution.

She gave them a week to provide a revised motion and will allow more argument at the next pretrial hearing, scheduled for May 9.

Hasan’s defense did score a victory Tuesday with a ruling barring testimony from an expert prosecution witness.

Evan Kohlmann, president of the intelligence firm Flashpoint Intel, had authored a report calling Hasan a “home-grown terrorist” led to violence through religious extremism. Kohlmann gave extensive testimony over the methods that led him to that conclusion at a previous hearing in March.

“Its probative value is outweighed by the danger of unfair prejudice to the accused,” Osborn ruled.

However, the government may still attempt to call Kohlmann for other reasons. His testimony could be used to provide context for evidence retrieved from the hard drive of Hasan’s laptop.

Contact Philip Jankowski at or (254) 501-7553

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