Army judge in Ft. Hood massacre case is in familiar territory
FT. HOOD, Texas — Capital murder trials are rare in the military’s criminal justice system, but they are familiar territory for the judge who will handle the trial of Maj. Nidal Malik Hasan, the former Army psychiatrist charged with killing 13 people and wounding 32 in a shooting rampage at this base in central Texas.
The judge is Col. Tara Abbey Osborn, and she once served at Ft. Hood, the sprawling facility known as “the Great Place.” Osborn has presided over “numerous serious felony trials, one capital trial and other non-capital homicide trials,” a base spokesman said.
The capital trial involved Army Sgt. Joseph Bozicevich, who was found guilty of two counts of premeditated murder in the 2008 slayings of his squad leader and another soldier in Iraq.
Bozicevich, 41, was spared the death penalty and sentenced to life in prison after the military jury at Ft. Stewart, Ga., didn’t return a unanimous verdict. The death penalty is an option in military trials only when a guilty verdict for premeditated murder is unanimous.
Hasan, 42, who could face the death penalty, is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder.
Osborn is uniquely equipped to handle the Hasan case, former colleagues say, describing her as a strict but fair judge.
“She has an outstanding reputation. She’s been a judge for a while and she has death penalty experience, which is probably why she was selected,” said Lisa Marie Windsor, a former Army lawyer who served at Ft. Hood and knows Osborn.
Windsor, who now works for a private law firm in Washington, said Osborn “has a lot of experience in criminal law, probably more than most because it’s an area she wanted to stay in.”
Osborn is chief judge for the Army’s 2nd Judicial Circuit, which includes Ft. Bragg, N.C., and bases in Alabama, Georgia and South Carolina. A graduate of the University of South Carolina law school, Osborn was admitted to the bar in 1987, joined the Army the next year and has served in Asia and Germany, as well as posts on the East Coast. In 1996, she was assigned to Ft. Hood for three years.
She has been based at Ft. Bragg in Fayetteville, N.C., for the last three years, where she recently presided over the court-martial of Staff Sgt. Andrew Van Bockel, one of eight charged in connection with the suicide of 19-year-old Pvt. Danny Chen in Afghanistan in 2011. In November, a jury convicted Van Bockel, 27, of hazing, dereliction of duty and maltreatment of a subordinate. His sentence included a reprimand, a two-rank demotion and 60 days of hard labor.
The Hasan case, in which jury selection is scheduled to start May 29, was set to go to trial last summer but stalled when Hasan, who is Muslim, grew a beard and refused to shave it even after ordered to do so by the judge at the time, Col. Gregory Gross.
Army grooming rules generally forbid soldiers from wearing beards, with some religious exemptions. Hasan argued that he had a right to wear the beard under the federal Religious Freedom Restoration Act.
In December, the Court of Appeals for the Armed Forces, the military’s highest appeals court, found that Gross had displayed an “appearance of bias” by ordering Hasan to shave, repeatedly fining Hasan and removing him from court for refusing to shave. The appeals court ruled that commanders, not judges, were responsible for enforcing military grooming standards.
Some experts said they expected Osborn to take a less combative approach than Gross.
“She is acutely aware that the issue that got Gross in trouble was engaging in a power struggle with Hasan, and I think she’s going to avoid that,” said Geoffrey Corn, a retired lieutenant colonel and professor at South Texas College of Law.
Osborn could cite the appeals court decision and avoid the shaving issue entirely. “She’s going to say, ‘I’m not reversing it and I’m not endorsing it. It’s not my responsibility,’” Corn predicted.
If the trial moves forward as planned in May, the military jury of at least 12 members — it could be as large as 16 — will be selected from among Army officers of Hasan’s rank or higher.
“There is no way you are going to find a jury for this case that is not very familiar with what happened,” Corn said. “But that doesn’t mean they can’t try the case fairly, setting aside what they have heard.”
Hasan’s attorneys challenged the jury selection process, requesting that the trial be moved from Ft. Hood and the jury pool expanded from the Army to include other branches of the military. The defense also requested that the government pay for a media consultant to help analyze coverage of the case to determine whether Hasan could receive a fair trial, as well as an expert to interact with the victims. The previous judge denied both requests, but he did order the government to pay for a jury consultant to aid the defense.
Osborn denied the request for media and crime victim consultants but has yet to rule on the other requests.
Once the jury is seated, testimony will begin, including detailed accounts from soldiers wounded in the shooting. Several testified at pretrial hearings that they heard Hasan shout. “Allahu akbar” — Arabic for “God is great” — before opening fire.
About a dozen defendants have been sent to federal death row by military juries since the military death penalty was reinstated in 1984, Corn said, and many have since had their sentences commuted.
Six military inmates are currently sentenced to death, according to Pentagon spokesman George Wright. He said the last military execution was that of John Bennett, hanged on April 13, 1961, for the rape and attempted murder of an 11-year-old Austrian girl.
Though military executions are rare, Hasan could be an exception, Corn said. “Will this be the case that truly resurrects military capital punishment?” he asked. “It could be.”
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