by Mark Wiggins
FORT HOOD - On March 5, 2012, the court martial of Major Nidal M. Hasan is set to begin. Military prosecutors have already promised to seek the death penalty for the man accused of the mass murder of 13 people on Fort Hood.
For many military legal experts, the penalty is the only part of the process that's in question. Former U.S. Army Judge Advocate General and Texas Tech law professor Walter Huffman believes the number of witnesses and weight of evidence against Hasan leaves just two options.
"Based on what I know, the two most likely outcomes of this case...it's always possible somehow they could find him not guilty...but if he's found guilty he's either going to get the death penalty or he's going to get life," says Huffman.
If Hasan were convicted and sentenced to death, he would be the second Fort Hood soldier on the U.S. Military Death Row.
Private Dwight Loving was sentenced to death for killing a pair of cab drivers on Fort Hood back in 1988, and has spent the last two decades behind bars. He's one of six U.S. servicemen awaiting death in the quiet row of cells beneath Fort Leavenworth, Kansas.
As it turns out, the last time such a sentence was actually carried out was in 1961. Army Private John A. Bennett was hanged after a court martial found him guilty of murder and rape.
Texas Tech law professor Richard Rosen, also a former military attorney, says the system of appeals in military court is similar to that of civilian courts. Rosen explains that the process of exhausting each method of appeal can span decades.
"If the death penalty is imposed, I don't expect to see Hasan executed unless he simply says, 'I want to be executed,' and he gives up all appeals and everything, kind of like a Timothy McVeigh," says Rosen. "I don't see him being executed any time within the next decade or so, at best."
Part of the reason no servicemen have been executed is reluctance from the White House. The president has to sign off on all military executions, and few modern presidents have been asked to do so. When President George W. Bush approved the execution of Private Ronald Gray in 2008, he was the first president to make such an authorization since President Dwight D. Eisenhower.
Gray, an Army cook, was sentenced to death for raping and killing two Fayetteville, Arkansas, women in 1986. Despite presidential approval, his death sentence has yet to be carried out.
A president faced with approving a death sentence recommendation for Hasan could face pressures from several different sides. Along with enormous popular pressure for an execution, Rosen says Hasan's health and religious stance in particular could create a difficult dilemma for a president wary of domestic and international reaction.
"There may be people who urge the president not to sign off on an execution simply because the alternative might even be more punitive without making him a martyr," explains Rosen. "That's one of the arguments, I'm not saying I buy that argument, but I think that's an argument that can be made."
Both Rosen and Huffman say they expect some sort of insanity or related type of defense, and will be paying close attention as the process moves forward.
