Hasan v. Gross , 2012 CAAF LEXIS 1290 ( 2012 )

Nidal M. HASAN, Major
U.S. Army, Appellant
v.
Gregory GROSS, Colonel
U.S. Army, Military Judge, Appellee
Nos. 13-8011/13-8012/AR
Crim. Army Misc. Nos. 20120876/10120877
United States Court of Appeals for the Armed Forces
Decided December 3, 2012
PER CURIAM
Counsel
For Appellant: Lieutenant Colonel Kris Poppe, Major Christopher
Martin, and Captain Kristin McGrory (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, Captain Chad
M. Fisher, and Captain Kenneth W. Borgnino (on brief).
Military Judge: Gregory Gross
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
Hasan v. Gross, 13-8011/8012/AR
PER CURIAM:
This case comes to us on an interlocutory appeal prior to
the start of Appellant’s court-martial. Appellant seeks (1) a
writ of prohibition, barring enforcement of the military judge’s
order that Appellant’s beard be forcibly shaved on the grounds
that the order violates the Religious Freedom Restoration Act
(RFRA) of 1993, 42 U.S.C. §§ 2000bb to bb-4 (2006), and (2) a
writ of mandamus ordering the removal of the military judge on
the basis of actual bias, or in the alternative, the appearance
of bias. Applying the heightened standard required for mandamus
relief, we conclude that based on a combination of factors, a
reasonable person, knowing all the relevant facts, would harbor
doubts about the military judge’s impartiality. United States
v. Martinez, 70 M.J. 154, 158 (C.A.A.F. 2011); United States v.
Quintanilla, 56 M.J. 37, 78 (2001); United States v. Wright, 52
M.J. 136, 141 (C.A.A.F. 1999); United States v. Kincheloe, 14
M.J. 40, 50 (C.M.A. 1982). Thus, we order the removal of the
military judge on the basis of the appearance of bias. As a
result, the military judge’s order to forcibly shave Appellant
is vacated, as are the six contempt citations. We need not and
do not decide if and how RFRA might apply to Appellant’s beard.
Should the next military judge find it necessary to address
Appellant’s beard, such issues should be addressed and litigated
anew.
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Factual Background
Appellant is charged with thirteen specifications of murder
and thirty-two specifications of attempted murder arising from
shootings that occurred on November 5, 2009, at Fort Hood,
Texas. A trial on the merits has not yet begun.
The military judge in this case serves as the Chief Circuit
Judge at Fort Hood. In this capacity, he detailed himself to
Appellant’s case. At the time of the incident, he was at Fort
Hood presiding over a court-martial and his family was shopping
at a location on the installation. During and after the
shooting, the buildings on the installation were placed on
lockdown, including the building in which the military judge was
hearing the court-martial.
On June 6, 2012, Appellant, a practicing Muslim, requested
a religious exception from AR Reg. 670-1 from his commander.
See Dep’t of the Army, Reg. 670-1, Uniforms and Insignia para.
1-8.a.(c)(2) (3 Feb. 2005) (Rapid Action Revision, May 11, 2012)
[hereinafter AR Reg. 670-1] (“Males will keep their face clean-
shaven when in uniform or in civilian clothes on duty.”); Dep’t
of the Army, Reg. 600-20, Personal-General, Command Policy para.
5-6.g.(4)(h)4. (Mar. 18, 2008) (Rapid Action Revision, Sep. 20,
2012) [hereinafter AR Reg. 600-20] (permitting a commander to
approve a request for accommodation). His commander denied his
request and directed him to comply with the Army’s grooming
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standards, but took no further action to enforce Appellant’s
compliance.
On June 8, 2012, Appellant appeared at a session pursuant
to Article 39(a), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 839(a) (2006), in the proper uniform but with a beard.
The military judge stated on the record that Appellant’s beard
was a “disruption to this trial and in violation of RCM 804.”
The military judge warned Appellant that if he refused to shave
he would be removed from the courtroom and required to
participate in future sessions of the trial by closed-circuit
television either in the deliberation room or in a trailer
outside the courtroom. Defense counsel noted that except for
the beard, Appellant was in the proper uniform and invited the
military judge’s attention to the discussion under Rule for
Courts-Martial (R.C.M.) 804, which states that “‘[i]n order to
justify removal from the proceedings, the accused’s behavior
must be of such a nature as to materially interfere with the
conduct of the proceedings.’” Following the Article 39(a),
UCMJ, session, the military judge went to the deliberation room
latrine. He found what he described as “what appeared to be
feces spread out on the floor” of the latrine. He then ordered
defense counsel to “[g]et someone over to the courtroom
immediately” to clean the latrine and stated that “[t]he accused
will not use that latrine again.” At each subsequent hearing,
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the military judge held Appellant in contempt, fined him $1000,
and had him removed from the courtroom to watch the proceedings
by closed-circuit television.
Defense counsel submitted a “Renewed Motion to Disqualify
the Military Judge.”1 The defense argued that the military judge
had become personally biased against the accused because of his
beard. Defense counsel also cited the latrine incident and
stated that Department of Emergency Services (DES) personnel
determined that the substance on the floor was in fact mud
tracked in by a DES guard. With respect to his ruling that
Appellant’s beard was a disruption, the military judge
explained:
Defense, I agree with you that the accused is not being
disruptive, as in a normal case, where someone is yelling,
arguing with the military judge, or civilian judge . . . .
However, I disagree with your assertion . . . that his
appearance does not take away from the dignity, order and
decorum of a court-martial . . . .
. . . .
. . . The accused in this case does not have the exception.
His conduct is disrespectful. He is disobeying an order
from the court; he is disobeying an order from his
commander to be clean shaven. His appearance is
disruptive.
A recess was called in order to have Appellant removed from the
courtroom and relocated to a trailer outside the building where
1
Defense counsel had previously moved for the military judge’s
recusal based on his close ties to Fort Hood and his and his
family’s physical presence on Fort Hood during the shooting.
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Appellant could see and hear the proceedings by closed-circuit
television. The military judge denied the recusal motions.
Appellant filed for extraordinary relief with the Court of
Criminal Appeals (CCA). When his petition was denied below,
Appellant sought relief in this Court on August 6, 2012. On
August 27, 2012, we denied the writ-appeal without prejudice
because the military judge had not yet issued a definitive order
for Appellant to be forcibly shaved.
On September 6, 2012, the military judge ordered Appellant
to be forcibly shaved, but stayed execution of this order until
Appellant had the opportunity to petition the CCA for relief.
On September 19 and 20, 2012, Appellant filed for relief with
the CCA. In a divided opinion, the CCA denied relief on October
18, 2012. Hasan v. United States, ARMY MISC Nos. 20120876,
20120877, 2012 CCA LEXIS 399, at *16, 2012 WL 5077652, at *4 (A.
Ct. Crim. App. Oct. 18, 2012). On October 22, 2012, this Court
stayed further proceedings pending consideration of Appellant’s
two writ-appeal petitions.2
2
Appellant’s writ-appeal petitions were filed on November 7,
2012, and the Government’s responses to both of Appellant’s
writ-appeal petitions were filed on November 16, 2012. In view
of the existence of a vacant position on the Court, the Chief
Judge called upon Senior Judge Andrew S. Effron to perform
judicial duties in this case, and Senior Judge Effron consented
to perform said judicial duties under Article 142(e)(1)(A)(ii),
Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(ii)
(2006). See Hasan v. Gross, 71 M.J. 386, 387 n.* (C.A.A.F.
2012).
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DISCUSSION
To prevail on his writ of mandamus, Appellant must show
that: (1) there is no other adequate means to attain relief;
(2) the right to issuance of the writ is clear and indisputable;
and (3) the issuance of the writ is appropriate under the
circumstances. Cheney v. United States Dist. Court for D.C.,
542 U.S. 367, 380-81 (2004). We conclude that Appellant has met
his burden.
Impartiality on the Part of the Military Judge.
In the military context, the appearance of bias principle
is derived from R.C.M. 902(a): “A military judge shall
disqualify himself . . . in any proceeding in which that
military judge’s impartiality might reasonably be questioned.”
The standard for identifying the appearance of bias is
objective: “[a]ny conduct that would lead a reasonable man
knowing all the circumstances to the conclusion that the judge’s
impartiality might reasonably be questioned.” Kincheloe, 14
M.J. at 50 (alteration in original) (internal quotation marks
omitted). As in the civilian context, recusal based on the
apparence of bias is intended to “promote public confidence in
the integrity of the judicial process.” Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988). “[W]hat
matters is not the reality of bias or prejudice but its
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appearance.” Liteky v. United States, 510 U.S. 540, 548 (1994).
In the military justice system, where charges are necessarily
brought by the commander against subordinates and where,
pursuant to Article 25, UCMJ, 10 U.S.C. § 825 (2006), the
convening authority is responsible for selecting the members,
military judges serve as the independent check on the integrity
of the court-martial process. The validity of this system
depends on the impartiality of military judges in fact and in
appearance. For the reasons stated below, we order the removal
of the military judge based on the appearance of bias.
As an initial matter, the command, and not the military
judge, has the primary responsibility for the enforcement of
grooming standards. See AR Reg. 600-20; Dep’t of Defense Instr.
1300.17, Accommodation of Religious Practices Within the
Military Services (Feb. 10, 2009). The maintenance of
discipline, unit cohesion and unit morale are command
responsibilities and functions. A military judge's contempt
authority is directed toward control of the courtroom. Although
the military judge here stated that Appellant’s beard was a
“disruption,” there was insufficient evidence on this record to
demonstrate that Appellant’s beard materially interfered with
the proceedings. See R.C.M. 804 Discussion (“In order to
justify removal from the proceedings, the accused’s behavior
should be of such a nature as to materially interfere with the
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conduct of the proceedings.”). Thus, taken together, the
decision to remove Appellant from the courtroom, the contempt
citations, and the decision to order Appellant’s forcible
shaving in the absence of any command action to do the same,
could lead an objective observer to conclude that the military
judge was not impartial towards Appellant.
In light of these rulings, and the military judge’s
accusations regarding the latrine, it could reasonably appear to
an objective observer that the military judge had allowed the
proceedings to become a duel of wills between himself and
Appellant rather than an adjudication of the serious offenses
with which Appellant is charged.
Moreover, we are cognizant that the military judge and his
family were present at Fort Hood on the day of the shootings.
While this fact alone is not disqualifying, when viewed in light
of the factors identified above, an objective observer might
reasonably question the military judge’s impartiality. See
R.C.M. 902(a); see also Nichols v. Alley, 71 F.3d 347, 352 (10th
Cir. 1995) (holding that, even in the absence of impropriety,
the judge presiding over the initial trial of the Oklahoma City
bombers had to be recused because (1) his court was one block
away from the explosion, (2) his court was physically damaged by
the blast that killed 169 people, and (3) the blast “injured a
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member of his staff, as well as other court personnel and their
families”).
Having concluded that Appellant has shown a clear and
indisputable right to removal of the military judge, we further
determine that there is no other adequate means for Appellant to
attain relief and that removal is appropriate under the
circumstances. Cheney, 542 U.S. at 380-81.
DECISION
Appellant’s writ-appeal petitions for mandamus and
prohibition are hereby granted. In light of the above, the
military judge is ordered removed. The appropriate authority
shall detail a new military judge in this case. Further, the
contempt convictions against Appellant, as well as the military
judge’s order to forcibly shave Appellant, are hereby vacated.
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