Now I’m Really Confused
This one has me scratching my head – bigtime.
According to his military lawyer, accused Fort Hood mass-murderer Nidal Hasan offered twice to plead guilty. The Army apparently rejected both offers.
FORT HOOD, Texas — The Army psychiatrist charged in the 2009 Fort Hood massacre twice offered to plead guilty and “accept full responsibility” for the crime earlier this year, his lead defense attorney said Thursday.
After the government turned him down in January, Maj. Nidal Hasan offered to plead guilty again last month without a deal — and also tried to challenge Army rules that prohibit a judge from accepting a guilty plea to murder in a death penalty case, said Lt. Col. Kris Poppe.
I can understand why the Army likely refused the first attempt at a plea; it almost certainly included conditions as part of the deal that the Army didn’t want. And I can technically understand the second refusal, too. After all, rules are rules.
No, what confuses me is the rule itself. Why in the hell can’t an Army judge accept a guilty plea in a case where the death penalty is on the table?
If any of our military lawyers (or other readers) could clarify, I’d be greatly obliged. Because that just doesn’t pass the common-sense test.
Sometimes it really seems like Pogo was right after all.
Category: Legal, Military issues, Shitbags, Terror War
Well, the rationale is as simple as this: There is no coming back from a guilty plea where death is imposed and the defendant is executed. If a defendant has a death wish, is coerced, or otherwise pleads guilty for a reason other than that he is guilty—-well, he can’t change his mind after execution. I do not think it’s any more complicated than that.
I understand that no defendant has ever appealed this rule as unconstitutional and that three states, as well as the UCMJ, share this taboo. So, that said, it opens up the possibility that Nidal could appeal the prohibition against a court’s rejection of his attempt to plead guilty as violative of his due process rights.
In civilian court, generally (I am not a lawyer, but former LEO) if you pleade guilty, apologize, cry, get a note from your mother, et al … you can possibly skirt a death penalty.
Clearly, in military justice system … wiggle room is removed so a defendant can not shirt the dealth penalty.
If I was the judge and or procecutor, as I believe will certainly be upheld, I would reject any form of plea from this murderous traitor terrorist!
No lawyer but didn’t SCOTUS rule that only a jury could impose the death penalty, not a judge?
Uniform Code of Military Justice Article 45 (b):
“(b) A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged.”
The whole purpose of this part of Article 45 is to prevent coerced confessions in a Capital case. It requires the prosecution to put on a case detailing all of the evidence to convince the Court that the defendant committed the crime for which charged.
From U.S. vs. Soto – “A plea of guilty is more than an admission of guilt – it is the waiver of bedrock constitutional rights and privileges; under controlling Supreme Court precedent, it is, therefore, constitutionally required under the Due Process Clause of the Fifth Amendment that a judge ensure that a guilty plea be entered into knowingly and voluntarily; it is axiomatic that the military justice system imposes even stricter standards on military judges with respect to guilty pleas than those imposed on federal civilian judges”
@3. Yes, but there is no jury involved when a defendant pleads guilty. The Supremes were addressing contested cases.
The UCMJ lays out the procedure in capital cases. Basically, the rule is that ONLY the panel members can unanimously authorize the death sentence, and it only gets to that point if ONLY the panel members unanimously determine guilt. The capital system was designed to provide maximum oversight into the merits of the case. Congress way back when determined that it wasn’t enough for a military judge to accept guilt and then give the case to the members for capital deliberation. It’s part of the military justice system’s extra built-in protections for service members.
So in this case, the government wants the death penalty and is not open to accepting any deals. As such, the government cannot accept the deal because then it throws the statutory procedure out of whack. The only way for a military judge to accept a guilty plea and then have panel members determine capital sentence is for Congress to change the law. In fact, Congress did just that for capital military commissions relating to the GTMO cases.
Article 45(b) no doubt had its basis in a soldier being railroaded, once upon a time, but like everything else in our society did not take into account the beliefs of the radical goat molesters at the time the UCMJ was written. That part of the world had no influence nor was afforded any consideration until we started buying their oil.
He can’t plead per the rules so give him a fair trial and hang the bastard, of course, after a shave and a ham sandwich.
JAGC and Nigel Brooks are both correct. Short version: Federal law – specifically, the UCMJ itself – says the judge can’t accept such a plea in any courts-martial case for which the death penalty is “on the table”. I wasn’t aware of that.
Damn it, it looks like I’m gonna have to start fact-checking everything the damn Army Times says in it’s articles. The UCMJ is freaking Federal law – not some collection of administrative “Army rules” that can potentially be waived or easily changed by DA or DoD.
Hondo… Yes, the UCMJ falls under Title 10 and is prescribed by Congress. However, the Manual for Courts-Martial (MCM) kind of expands upon the law in terms of rules of evidence and procedure. The MCM is derived by executive order but serves as the guide for all military cases.
Before 1950, there was no UCMJ so things were a lot more dodgy (there was something like a million courts-martial in the field during WWII).
Now that I’m on a roll and off topic, you also may be interested that each state has their own individual military justice laws that apply to the Title 32 version of the Guard. Most state codes mirror the UCMJ. Upon federal mobilization, the UCMJ attaches because the Guardsmen switch from Title 32 to Title 10.
JAGC:
Interestingly enough, a similar situation was in place during (and after) the American Civil War.
State troops were under the controlling authority of the governor. Once accepted for Federal service, however, and before they were mustered into such service, the entire unit was formed up and the Articles of War were read aloud so that no man could say “I didn’t know…….” etc.
Afterward, the unit was mustered (again in formation) and then was considered to be under Federal authority and removed from the Governor’s reach.
JACG: Thanks. I was aware of SCMJs and when National Guardsmen transition from SCJM to UCMJ. I believes that also includes any duty performed by Guardsmen under Title 10 orders and not just mobilization – e.g., an individual short tour or overseas training – but I could be wrong.
What I wasn’t aware of was the fact that Federal law itself (specifically, the UCMJ) prohibited guilty pleas in military capital cases. “Prohibited by Federal law” is a much more accurate description of the reason than claiming Army rules prohibit such a plea. Federal law is a bit different than “Army rules”.
I’ll also have to observe that if Hassan’s lawyer actually referred to them as “Army rules” to a reporter or in public, he’s being quite disingenuous. He knows (or should know) damn well that any such “no strings attached” plea offer must by law either be rejected by the government or that the government must take the death penalty off the table to accept it. Maybe he was hoping to catch the prosecution team napping when he tried the second offer. If so, I’m glad to see the prosecution didn’t take the bait.
Oh well – we all know Federal law doesn’t necessarily have to make sense. And in some cases it simply doesn’t.
Could it be that he is trying to be a martyr and the Army doesn’t want to give him the satisfaction?
The Army is a confusing place.
Souns like the same ol’ Army. Dick Dance and all…
Hondo… To be fair, the federal law is parroted within the MCM, which includes the “Rules for Courts-Martial” or R.C.M. Many Judge Advocates, including myself, refer to “the rules” interchangeably. For example, I believe the appropriate “rule” on this issue is found in R.C.M. 1004. So I don’t fault him for saying that, although referring to it as an “Army rule” is flat-out incorrect.
Call me a cynic, but Hassan may not be pleading guilty for martyrdom. Instead, he may be attempting to plead guilty, knowing it will be…ahem… shot down, but the plea attempt itself can be introduced into evidence at the pre-sentencing hearing as mitigation that he has accepted responsibility and should receive life vice capital punishment.
@ 14 … net this out for me .. so he IS going to die?
What if this is just a delaying tactic aimed at holding off trial/punishment until after the elections?
@ 16… delaying tactics are the norm in all capital cases so I wouldn’t read much into it. The name of the game is to taint the appellate record so much that the higher courts set aside a capital verdict. Delaying things places a greater microscope onto every little issue and makes the judge rule on a lot of things. The more that’s in the record, the more potential for error, or so goes the defense theory.
@ 15… The Army Court of Criminal Appeals (the intermediate appellate court) recently upheld the death penalty in Akbar (the guy in 2003 who threw a grenade into a tent in Kuwait and shot an officer in the back). His appeal goes one more step higher within the military system, so you see how long these things take. But, I think Akbar will die. Hasan’s case is just as aggregious as Akbar’s. If the record is protected, Hasan has a good chance of dying a long time from now by lethal injection. But military capital cases do not have a good track record of being upheld in the military appellate process.
@ 17 ROG ALL! Thanks … good net!
@17 it’s too bad the needle is the preferred choice…hanging seems more appropriate for these turds, preferably with a pigskin rope…
JAGC: agreed regarding the MCM being the “Bible” for Courts-Martial and containing the section you indicated. And to be fair, the Army Times isn’t always 100% accurate in the way they characterize things.
My take is that Hassan’s lawyer was trying a reasonably clever “backdoor” strategy to see if he could catch the prosecution sleeping and get them to accept a plea. He could then argue that acceptance of the plea implicitly constituted waiver of the death penalty due to Article 45.
However, since the plea was not accepted, IMO Hassan’s attorney might want think twice about bringing it up during sentencing as evidence of responsible behavior. The prosecution has a ready counterargument to such an assertion. That counterargument is to observe that any such plea offer was known (or should have been known) a priori by the defendant’s attorneys to be invalid due to Article 45’s prohibition on same. Therefore, making such an offer was thus obviously nothing more than an attempt to either (1) deliberately create a false appearance of “contrition” and responsibility, or (2) hoodwink the prosecution into waiving the death penalty by accident. The only way Hassan’s counsel could counter that argument would be to claim they didn’t know about Article 45 – and thus cast doubt on their own professional competence. (Hell, I’m not a lawyer and I’m rather embarrassed I missed that.) Not sure they’ll want to “go there”.
Well, save this stuff so I can pick up my quarter down the road.
In the end, none of this stuff will matter. At sentencing, assuming Hasan doesn’t go all militant ala Abdo/underwear bomber/Moussaoui, Hasan’s defense team will offer all sorts of sob stories as mitigation evidence in order to save his life. He was made fun of, nobody loved him, people ridiculed his religion, he was mentally stupid, etc… This is the same thing Akbar did until he stabbed an MP after the guilty verdict and all his mitigation witnesses ditched him.
I’ll cheerfully accept any story they spin about him including “I’m depraved on accounta I’m deprived” – but the line of volunteers to be on the firing squad can form right in back of me.
Anybody remember SSG Alberto Martinez… he offered to plead guilty as well…
“Martinez’ defense team countered that the Army’s evidence against Martinez was circumstantial and prosecution witnesses’ testimonies were inconsistent. The defense team also presented evidence that Martinez was not the only soldier in the unit with a grudge against Esposito. After two days of deliberations, the jury acquitted Martinez on December 4, 2008. Martinez was honorably discharged from the military shortly thereafter. The US Army has not publicly identified or charged any other suspects in the killings.
Let him plead guilty… we can’t afford an acquittal…
Fuck it–put him and Manning into a small cell with Tina Turner screaming some wild shit about Thunderdome, and the winner can spend prima nocta with Charlie Manson on a Viagra IV drip.
Then again, Manning might like that.
[…] This ain’t Hell… is a bit confused about what is going on with Hassan Nidal […]
I understand that no defendant has ever appealed this rule as unconstitutional and that three states, as well as the UCMJ, share this taboo. So, that said, it opens up the possibility that Nidal could appeal the prohibition against a court’s rejection of his attempt to plead guilty as violative of his due process rights
Actually, that’s not true – this objection is standard in death penalty appeals.
As JAGC points out – one standard thing in death cases is to draw the proceedings out and give the court lots of chances to make mistakes that will result in the death sentence being set aside. Another is to raise tons of standard objections, even ones that the Supreme Court (or other appellate courts) shot down decades ago.
It actually makes sense. Over the lifetime of a death case, the Supreme Court may change composition and philosophies completely, and reverse longstanding precedents. But in order to keep the issues alive, you have to raise them.