Tuesday, December 04, 2012

Appeals Court Removes Court Martial Judge For Bias In Ft. Hood Shooter Case

As reported by the Washington Post yesterday, accused Fort Hood shooter Maj. Nidal Hasan won a significant victory yesterday in his ongoing battle with a military judge who refuses to allow him to wear a beard during his murder trial. Hasan has asserted the refusal violates his rights to the free exercise of religion. (See prior related posting.)  In Hasan v. Gross, (Armed Forc. Ct. App., Dec. 3, 2012), the U.S. Court of Appeals for the Armed Forces in a per curiam opinion not only held that there was insufficient evidence to show that Hasan's beard materially interfered with the court martial proceedings, but also held that court martial judge Gregory Gross should be removed from the case because of the appearance of bias.  The court said in part:
the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.... [I]t could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and Appellant rather than an adjudication of the serious offenses with which Appellant is charged. Moreover, we are cognizant that the military judge and his family were present at Fort Hood on the day of the shootings.
The court also vacated Hasan's contempt convictions and the judge's order to forcibly shave him. It said: "We need not and do not decide if and how RFRA might apply to Appellant’s beard.  Should the next military judge find it necessary to address Appellant’s beard, such issues should be addressed and litigated
anew."

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