DALLAS — Hundreds of unarmed soldiers, some about to deploy to Afghanistan, were waiting inside a building for vaccines and routine checkups when a fellow soldier walked inside with two handguns and enough ammunition to commit one of the worst mass shootings in American history.
Maj. Nidal Malik Hasan climbed onto a desk and shouted, “Allahu Akbar!” — an Arabic phrase meaning “God is great!” Then he fired, pausing only to reload.
Hasan doesn’t deny that he carried out the November 2009 rampage at Fort Hood, Texas, that left 13 people dead and more than 30 others wounded. There are dozens of witnesses who saw it happen.
Military law prohibits him from entering a guilty plea because authorities are seeking the death penalty. But if he is convicted and sentenced to death in a trial that starts Tuesday, there are probably years, if not decades, of appeals ahead.
He might never make it to the death chamber at all. While the Hasan case is unusually complex, experts also say the military justice system is unaccustomed to dealing with death-penalty cases and has struggled to avoid overturned sentences.
Eleven of the 16 death sentences handed down by military juries in the past 30 years have been overturned, according to an academic study and court records. No active-duty soldier has been executed since 1961.
A reversed verdict or sentence on appeal in the Hasan case would be a fiasco for prosecutors and the Army. That’s one reason why prosecutors and the military judge have been deliberate leading up to trial, said Geoffrey Corn, a professor at the South Texas College of Law and former military lawyer.
“The public looks and says, ‘This is an obviously guilty defendant. What’s so hard about this?’ ” Corn said. “What seems so simple is in fact relatively complicated.”
Hasan is charged with 13 specifications of premeditated murder and 32 specifications of attempted premeditated murder.
Thirteen officers from across the country who hold Hasan’s rank or higher will serve on the jury for a trial that will likely last one month and probably longer. They must be unanimous to convict Hasan of murder and sentence him to death. Three-quarters of the panel must vote for an attempted-murder conviction.
The jury will likely hear from victims and relatives of the dead. A handful of victims still carry bullet fragments in their body. Others have nightmares.
“It never goes away — being upset that it’s taken so long for this trial to come,” said Staff Sgt. Alonzo Lunsford, who was shot in the head, stomach and upper body. “So now’s the day of reckoning, which is positive — very positive.”
The trial’s start has been delayed over and over, often due to requests from Hasan. Any of the hundreds of decisions large or small could be fair game on appeal. The entire record will be scrutinized by military appeals courts that have overturned most of the death sentences they’ve considered.
“A good prosecutor, in military parlance, would be foolish to fight only the close battle,” Corn said. “He’s got to fight the close battle and the future battle. And the future battle is the appellate record.”
Examples abound of other death sentences set aside. They include William Kreutzer Jr., who killed one soldier and wounded 18 others in a 1995 shooting spree at Fort Bragg, N.C.; James T. Murphy, who killed his wife in Germany by smashing her head with a hammer; and Melvin Turner, who killed his 11-month-old daughter with a razor blade.
Part of the problem, experts say, is that death-penalty cases are rare in military courts.
A study in the Journal of Criminal Law & Criminology identified just 41 cases between 1984 and 2005 where a defendant faced a court-martial on a capital charge. Meanwhile, more than 500 people have been executed since 1982 in the civilian system in Texas, the nation’s most active death-penalty state.
While lawyers and judges in Texas might get multiple death-penalty cases a year, many military judges and lawyers often are on their first, said Victor Hansen, another former prosecutor who now teaches at the New England School of Law.
The military courts that are required to review each death-penalty verdict are also more cautious and likely to pinpoint possible errors that might pass muster at a civilian court, Hansen and Corn said.
Hansen compared the military’s conundrum to small states that have a death-penalty law on the books but never use it.
“You don’t have a lot of experience or institutional knowledge,” said Hansen, who compared it to “the reinventing of the wheel every time one is done.”
Military executions
16
Death sentences handed down by military juries over the past 30 years
11
Number of those death sentences that have been overturned
5
Number of men on the military death row at Fort Leavenworth, Kan.
52
Years since an active-duty soldier has been executed
