FT. HOOD, Texas -- Military prosecutors may rest their case Tuesday in the court martial of Maj. Nidal Malik Hasan for his 2009 shooting rampage that left 13 soldiers dead.
Hasan, 42, faces 13 charges of premeditated murder and 32 charges of attempted premeditated murder in connection with the attack Nov. 5, 2009. If convicted by the military jury of 13 officers, all of whom are Hasan’s rank or higher, he could face a death sentence.
Since the trial started two weeks ago, more than 80 witnesses have testified and hundreds of pieces of evidence have been presented. Hasan, who is representing himself, has rarely cross-examined witnesses or objected, speeding the proceedings.
Hasan’s neighbors and colleagues told jurors about what they observed in the days and hours leading up to the shootings, how the American-born Muslim spoke at morning prayers and gave away belongings. Victims testified about being shot, seeing fellow soldiers bloodied, wounded and dying. Forensic experts detailed the aftermath, how soldiers were shot as they lay wounded, one a dozen times.
The trial judge, Col. Tara Osborn, on Monday barred most of the evidence prosecutors hoped to present of what they called Hasan’s “jihadist” motives, although they were allowed to show the jury some of his Internet searches and Web pages he visited in the days and weeks before the attack.
The judge said prosecutors planned to call five witnesses Tuesday, then will probably rest their case. The day's first witness, civilian photographer Steven Bennett, showed photographs he took of Hasan during the shooting and said that, when he approached Hasan, the shooter told him he was using a paintball gun for a training.
Once the prosecution rests, Hasan plans to call a single witness whose identity has not been released. It also was unclear whether Hasan planned to testify, and how that would work, given that he is representing himself.
The judge has cautioned Hasan that he cannot use his position as his own attorney to make statements from the stand.
The jury, which includes nine colonels, three lieutenant colonels and a major, will consider all 45 counts again Hasan. A two-thirds majority is needed to convict on the murder counts, but the verdict must be unanimous for a death sentence.
The two-thirds threshold means military courts don't encounter an issue sometimes faced by civilian courts: a hung jury due to a lone holdout. But unlike civilian juries, military juries face the issue of chain of command with officers of different ranks voting independently. That’s why their votes are conducted by secret ballot, military legal experts said -- to counteract the potential influence of rank.
After deliberations, the most junior member -- in this case, the major -- collects and counts the ballots and then the jury foreman, or president, announces the verdict.
If the verdict is guilty, the case proceeds directly to sentencing. Unlike the procedure in many civilian courts, the jury will determine the sentence in this case.
If Hasan is convicted of murder, prosecutors arguing for a death sentence will have to present aggravating factors, such as multiple killings, experts said. Hasan would have a chance to respond to present mitigating factors and testimony. He has been consulting a mitigation expert hired to assist him.
If the jury does not unanimously vote for the death penalty, experts said they must vote again to determine by a three-quarters majority whether Hasan should get a life sentence with or without parole.