Fort Hood massacre trial: Hasan goes on the defense

Rick Jervis | USA TODAY

KILLEEN, Texas — Kimberly Munley has spent countless hours rehabilitating a shattered knee while trying to erase haunting images of a rampaging killer's 10-minute onslaught here four years ago.

Now Munley faces another ominous challenge: the prospect of answering questions from her would-be murderer in a military courtroom.

Munley, 38, is one of several dozen survivors of the shooting assault by Maj. Nidal Malik Hasan, an Army psychiatrist accused of opening fire on soldiers and civilians at Fort Hood in 2009. Hasan is charged with killing 13 people and injuring nearly three dozen more before police shot him, paralyzing him from the waist down. The American-born Muslim, who has acknowledged his role in the shootings, faces the death penalty in a case that spawned congressional hearings as well as an ongoing debate as to whether the shooting was a terrorist attack or "workplace violence," as the Pentagon has classified it.

"It's hard when the guy who tried to kill you is up there asking you questions," said Munley, a federal police officer at Fort Hood at the time who was the first person to confront Hasan, exchanging gunfire with him. "That's a whole different monster."

Jury selection in the case — besieged by delays ranging from Hasan's refusal to shave his beard to the removal of the original judge — begins Tuesday and is likely to last several weeks. The proceedings will occur in a courthouse surrounded by large sand-filled barriers in a corner of the sprawling base, akin to a building inside Baghdad's Green Zone. Soldiers carrying assault rifles patrol outside the building and pat down guests inside before they walk through a metal detector to get to the courtroom.

Hasan, who is confined to a wheelchair, has opted to represent himself, putting himself in the rare and emotionally explosive position of cross-examining his own victims. He faces 13 counts of premeditated murder and 32 counts of premeditated attempted murder.

If convicted, he could be the first active-duty U.S. soldier to face the death penalty in a half-century. The last time the military executed one of its own was 1961, when Army Pvt. John Bennett was convicted and hanged for the rape and attempted murder of an 11-year-old girl while stationed in Austria, said Marine Corps Col. Dwight Sullivan, an Air Force appellate defense counsel who has studied military executions. The Navy carried out its last execution in 1849, and the Marine Corps has not executed a Marine since 1817, he said.

"This is probably the most significant military trial in the last 30 or 40 years," said Geoffrey Corn, a former Army judge advocate who teaches military and national security law at South Texas College of Law in Houston. "There are a lot of eyes on Fort Hood and this case."

An accused shooter questioning his own victims from the confines of a wheelchair is just one of myriad peculiar twists in a trial that has captivated legal historians and is sure to raise the antennae of military jihadists around the globe.

Hasan, 42, has said in pretrial hearings that he went on his rampage in order to protect Taliban leaders in Afghanistan. A judge recently ruled this "defense of others" strategy could not be used in court.

U.S. authorities have said that Hasan initiated contact with Anwar al-Awlaki, the fiery American-born cleric who was killed in a U.S. drone strike in Yemen in 2011. The two exchanged up to 20 e-mails. Al-Awlaki had said that he didn't tell Hasan to carry out the shootings, but he later praised Hasan as a "hero" on his website for killing American soldiers who would be heading for Afghanistan or Iraq to fight Muslims.

THE SCENE OF SLAUGHTER

The case also brings to mind the trial of Colin Ferguson, the Long Island Rail Road shooter whose odd defense became a courtroom spectacle in the mid-1990s. Ferguson defended himself in a trial broadcast on Court TV in which he fired his defense attorneys, cross-examined witnesses and even badgered his victims. He was convicted and sentenced to more than 300 years in prison for killing six commuters and injuring 19 others in the 1993 attack.

Observers of the Hasan trial will witness a thinner, bearded defendant compared to the one shown clean-shaven in photos shortly after the shooting. The court has allowed him to forgo the more formal Army dress uniform usually worn at courts-martial for combat fatigues to better fit two colostomy bags that need to be routinely drained. During breaks, he pulls on a green skullcap and wears a sweater under the fatigues to help regulate his body temperature inside the air-conditioned courtroom. (His paralysis wreaks havoc on his body temperature.)

The case will center on 10 minutes on Nov. 5, 2009, at Fort Hood's Soldier Readiness Processing Center. Prosecutors say Hasan opened fire on soldiers and civilians with an FN 5.7 semiautomatic handgun, a high-tech pistol designed to have large-capacity magazines and penetrate body armor with certain ammunition.

Civilians huddled under desks and slid under gurneys as investigators say Hasan methodically walked through the center's adjoining medical screening building — where soldiers finalize paperwork and receive immunizations for upcoming deployments — allegedly using a laser scope to fire round after round at unarmed people. Twelve soldiers and one civilian were killed, including a 21-year-old pregnant Army private. The barrage of bullets also shattered knees, broke arms and femurs, and pierced lungs and livers of more than 30 other surviving victims.

Army Staff Sgt. Shawn Manning was waiting to get a final medical screening a few feet away from Hasan when he saw the gunman stand up and yell "Allahu Akbar!" — or "God is great" — and begin firing, he said. Hasan fired point-blank at Manning's chest, just above the heart, dropping him to the floor, he said. He fired five more shots into Manning, hitting him in the back, right foot, right side and twice in the right thigh.

Gasping for breath as blood bubbled into a pierced lung, Manning tried to crawl behind a desk already crowded with four other huddled civilians. When Hasan turned to other victims, Manning said he got up and ran out to a nearby building, where other victims were gathering.

It took several months of hospital stays and surgeries to pull the bullets out of Manning's abdomen and legs. Two remain — one near his spine and another in his right thigh. He lost five fellow soldiers from his unit and his commanding officer in the rampage.

Manning recently returned to work as a mental health counselor at Fort Lewis in Tacoma, Wash. But a day doesn't go by that he doesn't think or talk about the shooting, said Manning, who will be a witness in the trial. Delays in the case have been mentally withering, he said.

"You emotionally prepare to go to trial, then there's delay after delay after delay," Manning said. "It's very frustrating. The system obviously doesn't look out for the victims."

DELAYS AND FRUSTRATION

Munley arrived at the bloody scene within the first few minutes and began trading gunfire with Hasan. She was shot three times — in the right hand, upper left thigh and left knee — before a fellow officer shot and handcuffed Hasan. Munley has spent the past four years rehabilitating the thigh wound, which severed a femoral artery, and rebuilding the knee shattered into 120 pieces by one of Hasan's bullets.

Victims in the shooting have been livid by the court's decision to allow Hasan to represent himself and by the endless delays in the case, she said.

"There's not one victim who's not fed up," Munley said.

Court officials are also concerned that Hasan's physical condition could further hamper the trial's progress. His doctors have said Hasan cannot sit upright for more than 12 hours a day without his concentration being affected, and he has trouble writing more than a few pages at a time. A military sanity board previously found Hasan mentally competent to represent himself.

At a recent hearing, a bailiff wheeled a somber-looking Hasan to the defendant's table. He wore his green skullcap and combat fatigues and clutched a file of papers. He addressed the judge, Col. Tara Osborn, with short, respectful "yes, ma'ams" or "no, ma'ams" and spent most of the time looking down at his papers.

The military courthouse where the trial will take place has been transformed into a fortress, with tighter-than-usual security measures as well as stacks of dirt- and sand-filled containers designed to withstand a bomb blast.

Unlike a civilian trial, military courts-martial involving the death penalty use a panel of at least 12 jurors — known as "panel members" — who need to outrank the accused, Corn said. The panelists then listen to testimony, declare a verdict and pronounce a punishment, he said. The base commander then has to approve the judgment and has the authority to reduce the penalty, Corn said. Death penalty convictions are automatically appealed in the military.

Osborn will need to strike a balance between allowing Hasan to question witnesses and preventing him from using the courtroom as a political podium, said Richard Rosen, a law professor at Texas Tech University and former judge advocate.

"Hasan may want to use this as a kind of show trial," he said. "The judge is going to have to limit his questions. (Hasan) has to keep to the facts of the case and things that are relevant."

More than deciding on Hasan's guilt, jurors in this case will be focused on whether to give him life in prison or the death penalty, which requires a unanimous verdict, Corn said. Jurors must be convinced that Hasan premeditated the shooting, among other factors, to suggest the death penalty, he said.

"This case is about what happened before Nov. 5 and after Nov. 5," Corn said. "It's not about who killed these people. That's a given."

SEEKING JUSTICE, AN END

Outside the courtroom, people around Killeen have followed the trial with a mix of dismay over the case's slow progress and anger at the liberties afforded Hasan, said Jimmy Towers, pastor at Lifeway Fellowship Church. Residents were also enraged to discover that the military continues to pay Hasan's salary as he awaits trial — more than $250,000 since the shooting. Meantime, some of the victims have struggled to survive, he said.

"The general feeling in the coffee shops is that he has, from the very beginning, wanted to turn this into martyrdom," Towers said. "The more twists, the more delays, the more likelihood that people will be offended by it all."

At Papa's Café in nearby Harker Heights, diners perused the local newspaper with a front-page story on the latest Hasan case twist. Beverly Tuggle, 65, said the case is a daily topic among friends.

"I want the families of the victims to know that justice has been done," she said, "whatever that may be."

Munley said the victims she has spoken to are fairly split between those who say Hasan deserves to die for his actions and those who feel life in prison in a wheelchair is enough.

"Some want to see him sentenced to death," she said. "Most of us just want it to be over with."

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