Judge ousted in base rampage case
Published 04/12/2012 | 03:09
The US military's highest court has ousted the judge in the Fort Hood massacre case and threw out his order to have the suspect's beard forcibly shaved before his court-martial.
The US Court of Appeals for the Armed Forces ruled that Colonel Gregory Gross did not appear impartial while presiding over the case of Major Nidal Hasan.
Hasan faces the death penalty if convicted of the 2009 shootings that killed 13 people and wounded more than two dozen others on the Texas army base.
But the court said it was not ruling on whether the judge's order violated Hasan's religious rights. Hasan has argued that his beard is a requirement of his Muslim faith, although facial hair is against US Army regulations. "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.
Hasan appealed after Col Gross ordered that he must be clean-shaven or be forcibly shaved before his military trial. The court-martial had been set to begin three months ago, but has been on hold pending the appeals.
In a statement issued on Monday night, Fort Hood officials said proceedings in the case would resume after a new judge was appointed by the army's highest legal branch. That indicates army prosecutors will not appeal against the ruling to the US Supreme Court.
An army appeal court had upheld the shaving requirement in October, but on Monday the US Court of Appeals for the Armed Forces said the command, not the judge, was responsible for enforcing grooming standards. The ruling said that was one example of how Col Gross did not appear impartial in the case.
Col Gross had repeatedly said Hasan's beard was a disruption to the court proceedings, but the military appeal court ruled that there was insufficient evidence to show that his beard interfered with the hearings. Col Gross found Hasan in contempt of court at six previous pre-trial hearings because he was not clean-shaven, then sent him to a nearby trailer to watch the proceedings on a closed-circuit television. The appeal court's ruling also vacated the contempt of court convictions.
At a June hearing, lead defence lawyer Lt Col Kris Poppe said the judge showed a bias against Hasan when he asked defence lawyers to clean up a court restroom after Col Gross found a medical waste bag, adult nappy and what appeared to be faeces on the floor after a previous hearing. Hasan, who is paralysed from the waist down after being shot by police on the day of the shootings, has to wear nappies, but the mess in the restroom that day was mud from a guard's boots, Lt Col 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 offences with which (Hasan) is charged," judges wrote in the ruling.