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Judge won’t step down in Hasan case

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Posted: Thursday, December 1, 2011 12:00 pm | Updated: 2:13 pm, Thu Jan 23, 2014.

By Philip Jankowski

Killeen Daily Herald

FORT HOOD - The military judge assigned to the case of Maj. Nidal Hasan ruled Wednesday that he would not recuse himself from the court proceedings, though he was on post during the November 2009 shootings.

Military judge Col. Gregory Gross answered several questions from Hasan's defense team regarding the personal impact he felt during and after the shooting rampage, which left 13 people dead.

Hasan, 40, is charged with 13 counts of premeditated murder and 32 counts of attempted pre-meditated murder. If convicted, he could face the death penalty.

Defense attorneys asked about Gross' family, who was on post during the Nov. 5 shooting, as well as remarks he may have heard during his time at Fort Hood, including whether he heard comments from President Barack Obama or other high-ranking officials about the incident, or if he had seen any of the memorials erected following the shooting.

Gross repeatedly told Hasan's lead defense attorney, Lt. Col. Kris R. Poppe, that his exposure was minimal. The judge told the court he deleted emails appearing to contain information about the shooting and avoided news media as much as he could.

During the shooting incident two years ago, Gross was presiding over a court-martial. He recalled being told that the post had been locked down. Unable to go anywhere, the judge said he continued the court-martial after a brief recess.

After answering questions, Gross made an initial ruling, then rescinded it to allow Hasan's counsel and Army prosecutors to make arguments.

Oklahoma City bombing

For the defense, Poppe cited a case involving Terry Nichols, the accomplice to Oklahoma City bomber Timothy McVeigh. A judge in that case recused himself from the case because of the proximity of the bombing to the federal court in Oklahoma City.

Eventually, all federal judges in Oklahoma were disqualified as potential judges.

Poppe told the court that he was not accusing Gross of being biased, but the mere appearance of possible bias to an outsider should lead Gross to recuse himself from the case.

Prosecutor Lt. Col. Steve Henricks mirrored Gross' answers that the shooting had minimal impact on the judge's experiences on Nov. 5.

He argued that Poppe's example of the Oklahoma City bombing as a benchmark to judge the Fort Hood shooting as flawed. "A judge would have to recuse himself from any case of a heinous crime committed five to 10 miles from the courtroom," Henricks told the court.

Following the arguments, Gross took an hour recess before returning with his ruling against the motion.

"The reason I put all these (answers) on the record was to explain my knowledge," Gross told the court. "Most of these things I did not know."

The court also listened to attorney arguments about the constitutionality of the death penalty, court-martial case.

Military counsel are prohibited from speaking with the media; however, former Hasan attorney John Galligan described the motions as commonplace in military death penalty trials.

Since military courts are outside the jurisdiction of civilian criminal courts, there is a limited number of appeals to the U.S. Supreme Court. That right is guaranteed in the U.S. Constitution and has been challenged by another Fort Hood soldier given the death penalty. Dwight Loving has been on death row since 1988 after he was convicted of killing two taxi drivers in Killeen. Reports show the Supreme Court upheld his conviction in 1996.

Gross made no ruling on the constitutionality of the court-martial. Further challenges are expected to be heard at later hearings, Poppe told the court.

Gross also did not rule on earlier motions requesting the government to pay for a media expert and juror selection expert to assess the impact of pervasive media coverage on the limited pool of potential jurors.

Jurors will be selected from Fort Sill in Oklahoma and hold the rank of major or higher. Hasan's trial is slated to begin March 5.

Contact Philip Jankowski at philipj@kdhnews.com or (254) 501-7553. Follow him on Twitter at KDHcrime.

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