More than three and a half years after Army psychiatrist Maj. Nidal Hasan allegedly opened fire on a group of soldiers at Ft. Hood, the judge presiding over his court martial will attempt on Tuesday to get his trial back on track.
In what, at least for now, is considered the 'final' hearing to rule on pre trial issues raised by Hasan, Col. Tara Osborn is expected to decide, among other things, whether he should get the three month delay he has been requesting.
Hasan is facing the possibility of the death penalty for killing 13 soldiers and wounding 32 at the Soldier Readiness Station at Ft. Hood in November of 2009.
Richard Rosen who is a former Army prosecutor at Ft. Hood and now is a law professor at Texas Tech, points out that when he asked for permission to represent himself, and that request was granted, Hasan claimed he would not require a delay to prepare his case.
"I would hope the judge does not grand a three month delay," he said.
Osborn has not yet backed away from a previous order that opening arguments begin July first, but she had called prospective jurors to begin panel selection June 5, and then ordered them to return to their home posts after Hasan requested the right to claim in his defense that he was defending the Taliban in Afghanistan, a request she has since rejected.
Gary Solis, a law professor at Georgetown University and author of 'The Law of Armed Conflict,' says a minor delay may be justified,' and former Army prosecutor Geoffrey Corn says that is possible, to make up for the time which has been lost in jury selection.
"If I were a betting man I would say maybe a delay of a week," Corn said, adding that no judge has ever been overturned for granting an appeal. "This will eliminate the risk that, on appeal, some appellate court will say you should have granted a delay."
Other issues yet to be decided include how the jury of officers of the rank of major and above who will consider Hasan's guilt, and, if he is convicted, will consider whether he should face the death penalty, will be selected.
"She may not allow the lawyers to question the prospective jurors," Corn said. "She may just have them submit written statements, and do it herself, because now that Hasan is representing himself, it will be such a mismatch in appearance between Hasan and the prosecutors."
Hasan's appearance will also be the focus of another decision Osborn will have to make. After a six month delay which went to the top military appellate court and resulted in the former judge being removed from the case, Osborn agreed to ignore the fact that Hasan continues to wear a full beard, in violation of miltiary grooming regulations. Osborn will have to determine what the jury, which will be made up of officers who will consider Hasan to be 'out of uniform,' will be told about the beard.
"They may be told to not consider it, but, could you not consider a defendant if he were naked," Solis said. "I suspect the beard is not going to favorably impress a miltiary panel."
Rosen said Hasan is probably not interested in impressing his jury.
"Hasan disobeyed the order to remove it, and he should deal with any prejudice that results," Rosen said. "But he is using the beard as a 'statement.'."