Ft. Hood Trial: 5 Ways a Military Trial Is Different From a Civilian One


On November 5, 2009, a mass murder took place at Fort Hood near Killeen, Texas. In the worst shooting to ever take place on an American military base, a lone gunman killed 13 people and injured over 30. Nidal Malik Hasan, a 39-year Army major serving as a psychiatrist at the base, is the sole suspect. During the shooting rampage, Hasan was shot by police officers and taken into custody. He is now paralyzed from the waist down due to his injuries. 

Hasan, who shouted "Allahu Akbar!" immediately before opening fire, had previously expressed extremist Islamic beliefs and been very critical of the U.S.-led wars in Iraq and Afghanistan. He has claimed that the shooting was done in order to defend leaders of the Taliban. The Army has charged Major Hasan with 13 counts of premeditated murder and 32 counts of attempted murder. He faces the possibility of the death penalty or life in prison without parole. After a series of delays, his court-martial is set to begin on July 9.

Courts-martial are slightly different than civilian courts in several ways. Here's how:

1. Governed by the UCMJ

Military courts are governed by the Uniform Code of Military Justice, which serves as the foundation of military law in the United States. In subordinating the military to the civilian legislative branch, Article I of the Constitution grants Congress the authority to "make Rules for the Government and Regulation of the land and naval forces."

Military law in the United States was originally based on the Articles of War adopted by the Second Continental Congress in 1775 to govern the Continental Army during the Revolutionary War. In 1806, Congress enacted new Articles of War which remained largely unchanged until the 20th century. During the World Wars, the United States realized that its military law was vastly outdated and problematic. In 1950, Congress created the Uniform Code of Military Justice to establish the current system and make military law consistent across the various branches of the armed forces. Over time, some elements of the UCMJ have evolved to be more similar to the federal civilian justice system.

2. Jury Selection

Anyone who has had the joy of receiving a jury summons knows how the process goes, and everyone else has a basic understanding: under the Constitution, American citizens have the right to be judged by a jury of their peers. One of the grievances listed in the Declaration of Independence was about King George III "depriving us in many cases, of the benefits of trial by jury." Juries usually consist of 12 jurors.

Military juries, however, are a different beast. Members are typically only commissioned military officers, though the accused has the option of requesting enlisted personnel in the member pool. A military jury does not need to be made up of 12 members; it can range from as few as three to as great as a dozen depending on the type of court-martial. In a capital case like the Fort Hood shooting, where the death penalty is sought, the jury must consist of 12 members (this is a relatively new requirement, only added to the UCMJ via an NDAA provision in the last decade). Hasan's panel will have 12 members and four alternates, and will consist of officers who outrank him. 

3. Jury Verdict

Juries in criminal cases usually, as a rule, must reach a unanimous verdict in the case for conviction (civil cases usually just require some form of a majority decision). After the defense and prosecution make their cases, the jurors huddle together in a room and work out a verdict together. If they cannot come to a decision, they become a "hung jury" and a mistrial is declared.

Most military juries require a two-thirds vote to convict. If fewer than two-thirds vote to convict, then the verdict becomes "not guilty." Due to this measure, the military does not experience hung juries. In a death penalty case, though, a unanimous decision is required. Voting is done by secret written ballot. The military jury will also be responsible for the sentence on any crimes. Rather than imposing a sentence for every "count" against a defendant, the jury will impose one overall sentence. A death sentence would require a unanimous vote; life imprisonment would only require a three-fourths vote.

4. Appeals Process

In civilian courts, the appeals process after a trial can take an extraordinary amount of time. People on death row can often live to old age and die of natural causes due to the length of the appeals processes and varying courts in the United States. Military law takes a slightly different path.

If a service member is court-martialed, they can submit their case to the commanding officer that originally established the court-martial. This commander, typically a general or admiral in rank, has the power to grant clemency and reduce sentences. Due to controversies over recent sexual assault cases, Secretary of Defense Chuck Hagel and some members of Congress are moving to strip senior commanders of their power to alter courts-martial verdicts.

All death sentences are automatically appealed to the Court of Criminal Appeals for the service member's respective branch. Then it is automatically sent to the U.S. Court of Appeals for the Armed Forces (CAAF), which consists of five civilian judges appointed to 15-year terms by the President of the United States. Unlike civilians, service members do not always have the right to appeal to the Supreme Court, though some in Congress are attempting to broaden their access to the high court. In certain death penalty cases, however, the Supreme Court and federal appellate courts may end up getting involved.

All death sentences must be confirmed by the President of the United States. No member of the Armed Forces has been executed since the 1960s, as most death sentences are overturned during the appeals process. There are currently five men on the military's death row. Three are currently under review in the appeals process, one is awaiting execution, and one's execution was approved by President Bush in 2008 but stayed by a federal judge to allow further appeals.

5. Hasan Cannot Plead Guilty

Often times in civilian trials, plea deals are arranged. In order for a murderer to avoid the death penalty, for example, they may plead guilty and take life imprisonment instead. This saves the judicial system a lot time and money (that appeals process is not cheap) and lets a criminal avoid death. In the United States Military, however, a defendant may not plead guilty if the prosecution is seeking the death penalty — thereby likely ensuring a lengthy and expensive trip through the aforementioned appeals process.

Major Hasan previously tried to plead guilty, but the plea was denied as the judge refused to remove the death penalty as a punishment option. At a recent hearing, his lawyers entered a "not guilty" plea on his behalf as he refused to do so.

Jury selection is set to begin on July 9th.

For updates on the Fort Hood Trial, follow @RobinsonOB on Twitter.