Crimes, Courts, and Cops

A lawyer's perspective on the pursuit of justice.

Jim Silver is a criminal defense attorney and former prosecutor. See full bio

November 6, 2009, Law and Crime

Not Just Another Shooting in the Hood

Where does the shooter go from here?

The gruesome massacre at Fort Hood, Texas, the country's largest military base, raises an enormous number of questions, not the least important of which is: who will investigate and prosecute the alleged shooter, Maj. Nidal Malik Hasan?

I spoke with one of my law partners, Jeffrey Denner, who has tried numerous courts martial. According to Jeff, "as an active duty member of the Uniform Services of the United States, Maj. Hasan will be tried under the Uniform Code of Military Justice in a military tribunal."

We still don't know all the details about who was killed and wounded, but what if some of the victims turn out to be civilians who worked on the base? "If some of the killed or wounded turn out to be civilians, the state could also try to assert jurisdiction and bring him into state court, but it's unlikely Texas would " according to Jeff, "particularly since the crimes occurred on a military base."

Jeff raised another interesting point: "We really don't know much about the alleged shooter's motivations at this point; what if this was some sort of terrorist action? The military authorities are going to have to do a very thorough investigation into his background; they may find some things about his political ideology or personal history that could be relevant to what he is eventually charged with. And, if he is charged with an act of terrorism, the U.S. Attorney General might prosecute him."

And on the subject of motivations, the obvious thought for a defense lawyer in this situation is some type of defense of "lack of criminal responsibility", more commonly called the "insanity defense." Does military law have an insanity defense? "Yes", Jeff told me. "Article 50a of the UCMJ is called the ‘defense of lack of mental responsibility' and essentially says that the defendant must be able to show that he was unable to appreciate the nature or wrongfulness of his actions. And even if he can't make that showing and get an acquittal, a mental health defense might also be used to prove that he couldn't form the intent necessary for first degree murder, and allow a conviction on a lesser charge."

I've already seen some news reports where people are speculating that Major Hasan suffered from "post-traumatic stress disorder" stemming from his work as a psychiatrist counseling soldiers returning from tours in Iraq and Afghanistan. Maybe it was the stress of his own imminent deployment? Maybe some other crisis in his life? Maybe he is just an angry man? At this point, who knows? Perhaps we never will.

I will write more about this tragedy as the story unfolds.