FORT WORTH, Texas — The court martial against the Army psychiatrist charged in the Fort Hood shooting rampage will move forward with a replacement to the military judge who insisted that the suspect be forcibly shaved — the biggest hurdle to a long-delayed trial.
The US Court of Appeals for the Armed Forces ruled Monday that Col. Gregory Gross should no longer preside over the military trial of Maj. Nidal Hasan due in part to what it called a “duel of wills” between judge and defendant. Hasan is charged with 13 counts of murder in the November 2009 shooting rampage.
While in custody, Hasan has grown a beard that he says is an expression of his Islamic faith. Gross had sided with prosecutors who say the beard violates Army grooming standards and could confuse witnesses.
The court of appeals declined to rule on whether Hasan could keep the beard.
Fort Hood officials said late Monday that proceedings in the case will resume after a new judge is appointed by the Army’s highest legal branch. This indicates Army prosecutors will not appeal to the US Supreme Court.
Gross had repeatedly said Hasan’s beard was a disruption to the court proceedings, but the military appeals court ruled there was insufficient evidence to show that was true.
“Should the next military judge find it necessary to address (Hasan’s) beard, such issues should be addressed and litigated anew,” judges wrote in the ruling.
But the court suggested in its ruling that the next judge might not be the right person to decide on the beard.
“As an initial matter, the command, and not the military judge, has the primary responsibility for the enforcement of grooming standards,” the court said.
An August trial date was put on hold over the beard. Gross had said that Hasan would be forcibly shaved before trial if he didn’t remove the beard himself. Hasan appealed, and the appeals court stayed all court proceedings.
Gross found Hasan in contempt of court at six pretrial hearings due to his beard and sent him to a trailer to watch the proceedings on a closed-circuit television. The appeals court’s ruling also vacated the contempt of court convictions.
“The maintenance of discipline, unit cohesion and unit morale are command responsibilities and functions,” it said. “A military judge’s contempt authority is directed toward control of the courtroom.”
The court said it was not ruling on whether the judge’s order violated Hasan’s religious rights.
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 June hearing. Hasan, who is paralyzed from the waist down after being shot by police on 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.
Hasan faces the death penalty if convicted in the shootings on the Texas Army post that killed 13 people and wounded more than two dozen others.