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Fort Hood shooter's death sentence heads for appeal with or without him

U.S. Army Major Nidal Hasan looks at panel president during reading of his sentence, the first time Hasan looked in the direction of the pan
U.S. Army Major Nidal Hasan looks at panel president during reading of his sentence, the first time Hasan looked in the direction of the pan

By Joseph Ax

NEW YORK (Reuters) - Major Nidal Hasan may wish to die a martyr, as he told mental health evaluators before his trial in the shooting deaths of 13 people at Fort Hood, Texas, but his execution is likely years away.

The case against Hasan, who was convicted of the 2009 murders of 13 people at the Army base and sentenced to death on Wednesday by a military jury, will now move to a lengthy appeals process that includes several stages of review.

Appellate review is mandatory for courts-martial involving the death penalty, regardless of the defendant's wishes, according to Eugene Fidell, a professor at Yale University who studies military justice.

The case next goes to the "convening authority" - the high-ranking military officer responsible for calling the court-martial - for review. The officer can approve or reject the verdict or the sentence.

That step, which has no analogue in the civilian justice system, has drawn increasing scrutiny from Congress and military leaders concerned about sexual abuse after the controversial dismissal of a sexual assault conviction against an Air Force lieutenant in Italy earlier this year.

If the officer approves the Hasan jury's findings, the case will then move to the U.S. Army Court of Criminal Appeals, an intermediate appellate court with military judges.

Hasan could refuse legal representation, as he did at trial, which would present an untested issue under military law.

Experts said the court will likely assign appellate Army lawyers to argue on Hasan's behalf even if he doesn't want to fight the sentence. During his trial, Hasan declined to call witnesses and admitted he killed the victims as part of what he said was a war between the United States and Muslims.

Military law states that appellate defense counsel "shall represent" a defendant when the United States is represented by counsel.

"I am confident that they will appoint lawyers for him," Fidell said. "They will file a brief whether he likes it or not."

ETHICAL QUESTIONS

But Tom Fleener, a defense lawyer who handles military cases, said that could present murky ethical issues.

"What do you do if the client wants to die?" he said. "You'd essentially be arguing against your client's interests."

If the sentence is upheld by the Court of Criminal Appeals, the next review takes place at the U.S. Court of Appeals for the Armed Forces, the military's highest court, which has five civilian judges.

Hasan or the government can petition the U.S. Supreme Court to review that court's ruling, though it is rare for the Supreme Court to do so.

Like any defendant - military or civilian - facing the death penalty, Hasan can also challenge his conviction in federal district court by filing a habeas corpus claim, typically on constitutional grounds, Fidell said.

The final step in the military appeals process for capital cases is presidential approval. By the time Hasan's case reaches that stage, it's likely that President Barack Obama will no longer be in office, said William Cassara, a defense lawyer who specializes in military cases.

Military executions are exceedingly rare with the last coming in 1961. In 2008, President George W. Bush approved the execution of Ronald Gray, an Army private convicted of multiple rapes and murders. Gray is appealing his case in federal court.

There are five military prisoners on death row, including Andrew Witt, an airman whose sentence was overturned two weeks ago by a military appeals court. He remains on death row while the government considers whether to appeal.

Not counting Witt's case, convening authorities and appeals courts have overturned 11 of the 16 death sentences given to military defendants since 1984, when the current system was put in place.

Because Hasan effectively failed to mount a defense at trial, however, finding grounds to appeal his sentence could be very difficult, Cassara said.

(Reporting by Joseph Ax; additional reporting by Noeleen Walder; Editing by Cynthia Osterman)

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