An Army appeals court on Thursday questioned whether a military judge exceeded his authority in ordering the suspect in the 2009 shooting rampage that killed 13 people at a Texas army post to remove his beard or be forcibly shaved.
Judges on the US Army Court of Criminal Appeals in northern Virginia also delved into a claim by Maj. Nidal Hasan’s lawyers that the military judge who issued the order is biased and should be replaced. The American-born Muslim psychiatrist claims he grew his beard for religious reasons.
Hasan’s murder trial in Texas is on hold while his lawyers pursue the appeal. Hasan,42,faces the death penalty or life in prison without parole if convicted in the Nov. 5,2009,attack that killed 13 people and wounded more than two dozen others at Fort Hood,Texas,about 130 miles (209 kilometers) southwest of Dallas.
The rampage was the worst mass shooting ever at a US military installation.
Hasan’s attorneys also want the appeals court to overturn six contempt-of-court rulings Col. Gregory Gross issued against Hasan for having a beard at pretrial hearings this past summer,when he first showed up in court with facial hair.
Army grooming standards prohibit beards but allow for religious exceptions. Gross denied Hasan’s request for such an exception. He found that Hasan’s claims of religious sincerity did not outweigh prosecutor’s arguments that Hasan grew the beard just before his August trial date so witnesses wouldn’t be able to identify him in court.
Six of the seven judges on the appeals court questioned lawyers for both sides Thursday,mainly about the limits of Gross’ authority and the perception of impartiality.
Defense attorney Capt. Kristin McGrory said military judges have no authority to order forcible shaving. She said military regulations authorize it for inmates only for safety and health reasons.
She also disputed Gross’ assertion that the beard would be a disruption during Hasan’s trial.
“The fact that he’s wearing a beard does not materially interfere with the course of the trial,” McGrory told the panel.
Chief Judge Col. William Kern repeatedly asked government attorney Capt. Kenneth Borgnino whether Gross had put his impartiality in question by issuing the order instead of leaving it up to Hasan’s chain of command. Hasan hasn’t been charged with a grooming violation.
Judge Col. Steven Haight asked Borgnino: “Is it appropriate for the command to virtually punt the forcible shaving issue over to the military judge?”
Borgnino said Gross was merely controlling his courtroom. He said a bearded Hasan at trial would be as offensive to the judge and jury as an obscene signboard.
“This isn’t a situation where he’s missing a button off his uniform,” Borgnino said. Allowing the beard,he said,”would be to cede control of the courtroom to the whims of the accused.”
It’s unclear when the court will make a decision,which could be appealed to the US Court of Appeals for the Armed Forces.
Hasan remains jailed.