Judge rejects evidence regarding Ft. Hood shooter’s motive

FT. HOOD, Texas — Military prosecutors cannot present most of the evidence they had sought to show what motivated the accused Ft. Hood shooter, a judge ruled Monday.

Maj. Nidal Malik Hasan, 42, an American-born Muslim, faces a court-martial this week on 13 charges of premeditated murder and 32 charges of attempted premeditated murder in connection with the shooting at this central Texas base on Nov. 5, 2009.

Prosecutors have spent the first nine days of the trial building their case against Hasan through testimony from more than 75 witnesses. If convicted, the Army psychiatrist could be sentenced to death by the military jury of 13 officers.

Hasan admitted to the shooting in his opening statements. In a letter to the Killeen Daily News published over the weekend, Hasan said he “was defending my religion” and that it was “not acceptable to have a foreign policy that tries to replace [Muslim Holy] law for a more secular form of government.”

He wrote, “Fledgling Islamic states like Afghanistan need help to better govern their people under” Muslim holy law, or sharia. He then added, in a line that echoed his opening statement, “We are imperfect Muslims trying to establish the perfect religion of All-Mighty God.”

Hasan is representing himself in this case, and has attempted to mount a “defense of others” legal strategy, arguing that he shot fellow soldiers preparing to deploy in an effort to protect Taliban leaders. So far, the military judge, Col. Tara Osborn, has rejected that defense, but in the latest letter, Hasan again offered an explanation of his actions. He also cited Francis Boyle, a University of Illinois law professor, as establishing that wars in Iraq and Afghanistan are “illegal and unconstitutional.”

Prosecutors have pushed the judge to admit evidence of Hasan’s motive and radicalization — that he searched the Internet for information about a holy war or jihad and made an academic presentation about Muslim soldiers conflicted about fighting in Iraq and Afghanistan (at the time of the shooting, Hasan was facing imminent deployment to Afghanistan).

They wanted to present evidence that Hasan pursued conscientious objector status and a fellowship to avoid deploying; that he researched Hasan Akbar, a Muslim soldier convicted of murdering members of his own unit as they prepared to invade Iraq; and about an exchange of emails -- they wouldn’t say with whom, but the FBI has said Hasan traded emails with radical Muslim cleric Anwar al Awlaki, whom he identified in his latest letter to the Killeen newspaper as “my teacher and mentor and friend.”

Osborn said prosecutors could admit some evidence from Hasan’s computer dated shortly before the shooting, including Internet searches and favorite Web pages.

But she rejected the rest, saying most of it was too old, would confuse jurors and “muddy” the distinction between motive and Hasan’s “defense of others” arguments.

Osborn noted that Hasan’s academic presentation was open to interpretation — perhaps he made it to educate classmates about how to better treat Muslim soldiers, she said. The judge emphasized that “Sgt. Akbar is not on trial in this case” and said presenting that evidence “would only open to door to a mini-trial” with the potential for “guilt by association.”

The judge had said she expected the trial to last at least a month, but it has moved more quickly, since Hasan rarely objects or questions witnesses. Prosecutors said they expect to call 15 more witnesses.

It is not clear whether the jury of 13 officers, all Hasan’s rank or higher, will hear testimony from the civilian Fort Hood police officer who shot and felled Hasan, Senior Sgt. Mark Todd. Hasan who remains paralyzed and is in a wheelchair.

Todd testified at a pretrial hearing, but earlier this month prosecutors told the judge that Todd now has a medical condition that would make it difficult for him to testify. On Monday, they submitted his previous testimony and asked the judge to accept it in lieu of having him testify again. The judge initially denied their request, then said she would consider it again once prosecutors presented more evidence.

Hasan had said he will call two witnesses, one of whom he removed from his witness list last week. It is unclear whether Hasan plans to testify, and if so, how. Military legal experts have told The Times that Hasan could be allowed to speak freely from the stand, or to submit questions for the judge or his military legal advisers to ask him. If he takes the stand, they noted, Hasan also opens himself up to cross-examination.

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