By Jim Forsyth
SAN ANTONIO, Texas, Dec 3 (Reuters) - The top U.S. military
appellate court on Monday ruled that the judge presiding over
the case of an Army major charged with a 2009 massacre at Fort
Hood, Texas is not impartial and ordered him removed.
The court also set aside the order by the judge, Colonel
Gregory Gross, that accused gunman Major Nidal Hasan be forcibly
shaved.
The action by the United States Court of Appeals for the
Armed Forces further delays the trial of Hasan, 42, who is
charged with 13 counts of premeditated murder after he allegedly
opened fire on soldiers and support personnel in a room at Fort
Hood in November 2009. Thirty-two people were also wounded
before two civilian police officers shot Hasan four times,
leaving him paralyzed from the chest down.
The court said that Gross has "allowed the proceedings to
become a duel of wills between himself and Major Nidal Hasan,
rather than an adjudication of the serious offenses with which
Hasan is charged."
The appellate court, which is the ultimate decider of
matters under the Uniform Code of Military Justice, said a
"reasonable observer might reasonably question the military
judge's impartiality," and ruled that Hasan has "shown a clear
and indisputable right to removal of the military judge."
After two delays and after his request for a third delay was
rejected, Hasan appeared in the courtroom at Fort Hood in June
wearing a full beard, which is a violation of Army grooming
rules. Gross repeatedly held Hasan in contempt of court, fined
him $1,000 on six separate occasions, and removed him from the
courtroom. Monday's ruling dismissed the six contempt citations.
Hasan has sought to keep the beard by claiming that the
Religious Freedom Restoration Act of 1993 allowed him to declare
his Muslim faith despite Army regulations.
"We need not and do not decide if and how the Religious
Freedom Restoration Act might apply to Hasan's beard," the court
ruled. "Should the next military judge find it necessary to
address Hasan's beard, such issues should be addressed and
litigated anew."
In a 10-page ruling, the appeals court said no evidence was
presented to show that Hasan's beard was "disruptive to court
proceedings" and said Gross may be biased in the case because he
was on the post at the time of the shooting.
Victims of the shooting have complained that the case has
dragged on too long and the military justice system has failed
to provide them with closure in the case.
Follow us on Twitter @ReutersLegal | Like us on Facebook