Judge out in Fort Hood case

Mil­i­tary ap­peals court: Gross did not ap­pear im­par­tial with Hasan.

Austin American-Statesman - - FRONT PAGE - ByAn­gela K. Brown An or­der to have Maj. Ni­dal Hasan’s beard forcibly shaved be­fore his trial was tossed.

The mil­i­tary’s high­est court ousted the judge in the Fort Hood shoot­ing case Mon­day and threw out his or­der to have the sus­pect’s beard forc- ibly shaved be­fore his court­mar­tial.

The U.S. Court of Ap­peals for the Armed Forces ruled that Col. Gre­gory Gross didn’t ap­pear im­par­tial while pre- sid­ing over the case of Maj. Ni­dal Hasan, who faces the death penalty if con­victed in the 2009 shoot­ings on the Texas Army post that killed 13 peo­ple and wounded more than two dozen oth­ers.

But the court said it was not rul­ing on whether the judge’s or­der vi­o­lated Hasan’s re­li­gious rights. Hasan has ar­gued that his beard is a re­quire­ment of his Mus­lim faith, although fa­cial hair vi­o­lates Army reg­u­la­tions.

“Should the next mil­i­tary judge flnd it nec­es­sary to ad­dress (Hasan’s) beard, such is­sues should be ad­dressed and lit­i­gated anew,” judges wrote in the rul­ing.

Hasan ap­pealed af­ter Gross or­dered that he must be clean­shaven or be forcibly shaved

be­fore his court-mar­tial, a mil­i­tary trial. The court-mar­tial had been set to be­gin three months ago, but has been on hold pend­ing the ap­peals.

It wasn’t clear if Army pros­e­cu­tors would ap­peal this rul­ing to the U.S. Supreme Court. Pros­e­cu­tors have said they would not com­ment about the case un­til the trial is over, and Fort Hood of­fi­cials did not im­me­di­ately re­turn calls Mon­day or is­sue a state­ment.

An Army ap­peals court had up­held the shav­ing re­quire­ment in Oc­to­ber. But on Mon­day, the U.S. Court of Ap­peals for the Armed Forces said the com­mand, not the judge, was re­spon­si­ble for en­forc­ing groom­ing stan­dards. The rul­ing said that was one ex­am­ple of how Gross did not ap­pear im­par­tial in the case.

Gross had re­peat­edly said Hasan’s beard was a dis­rup­tion to the court pro­ceed­ings, but the ap­peals court ruled there was in­suf­fi­cient ev­i­dence to show his beard in­ter­fered with the hear­ings.

Gross found Hasan in con­tempt of court at six pre­vi­ous pre­trial hear­ings be­cause he was not clean-shaven, then sent him to a nearby trailer to watch the pro­ceed­ings on a closed-cir­cuit tele­vi­sion. The ap­peals court’s rul­ing also va­cated the con­tempt of court con­vic­tions.

At a June hear­ing, lead de­fense at­tor­ney Lt. Col. Kris Poppe said the judge showed a bias against Hasan when he asked de­fense at­tor­neys to clean up a court re­stroom af­ter Gross found a med­i­cal waste bag, adult diaper and what ap­peared to be fe­ces on the floor af­ter a pre­vi­ous hear­ing. Hasan, who is par­a­lyzed from the waist down af­ter be­ing shot by po­lice the day of the shoot­ings, has to wear adult di­a­pers — but the mess in the re­stroom that day was mud from a guard’s boots, Poppe said.

“In light of th­ese rul­ings, and the mil­i­tary judge’s ac­cu­sa­tions re­gard­ing the la­trine, it could rea­son­ably ap­pear to an ob­jec­tive observer that the mil­i­tary judge had al­lowed the pro­ceed­ings to be­come a duel of wills be­tween him­self and (Hasan) rather than an ad­ju­di­ca­tion of the se­ri­ous of­fenses with which (Hasan) is charged,” judges wrote in the rul­ing.

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