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Military judge taken off Ft. Hood shooting case over beard fight

December 03, 2012|By Matt Pearce | This post has been updated, as indicated below.
  • A military appeals court has thrown out a judge's order to forcibly shave Nidal Malik Hasan, who is charged in the 2009 Ft. Hood shooting rampage, and removed the judge from the case.
A military appeals court has thrown out a judge's order to forcibly… (Bell County Sheriff's Department )

The man accused in the Ft. Hood shootings may get to keep his beard -- at least for now.

A military judge's "duel of wills" with Maj. Nidal Malik Hasan over whether Hasan would have to shave made the judge appear biased, requiring his removal from the case, a military appeals court ruled Monday.

Hasan, 42, is accused of killing of 13 people and wounding 32 others in a rampage at Ft. Hood, Texas, on Nov. 5, 2009.

Hasan, who is Muslim, said that he had grown the beard for religious reasons and that it was protected under freedom of religious expression.

Military prosecutors disagreed, as did the judge, Col. Gregory Gross, who ruled that the beard violated the military dress code. Gross held Hasan in contempt of court for refusing to shave, ordered him removed from the courtroom, and ultimately ordered that his beard be forcibly shaved.

Hasan appealed to the U.S. Court of Appeals for the Armed Forces. The appeals court ruled that military command, not a military judge, has responsibility for grooming standards, and that Gross could no longer convincingly appear to be unbiased in handling Hasan's case.

Gross' order to shave Hasan's beard -- and the six counts of contempt he  issued to Hasan -- were wiped out by the appellate court's ruling.

"Although the military judge here stated that [Hasan's] beard was a 'disruption,' there was insufficient evidence on this record to demonstrate that [Hasan's] beard materially interfered with the proceedings," the unsigned ruling said.

"Taken together," the ruling continued, "the decision to remove [Hasan] from the courtroom, the contempt citations and the decision to order [Hasan's] forcible shaving in the absence of any command action to do the same could leave an objective observer to conclude that the military judge was not impartial."

The appeals court did not specifically rule on Hasan’s claim that his beard was protected under freedom of religion.

“Should the next military judge find it necessary to address [Hasan's] beard, such issues should be addressed and litigated anew,” the court said.

The appellate court's ruling also cited an incident in which Gross found what he believed to be feces on the floor of a bathroom and ordered Hasan not to use the bathroom again. Department of Emergency Services staff later said the material was mud that had been tracked in by a guard.

"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 [Hasan] rather than an adjudication of the serious offenses with which [Hasan] is charged," the ruling said.

The appellate court also said the presence of the judge and his family at Ft. Hood on the day of the shootings contributed to its decision to remove Gross from the case, although that would not have been enough by itself to warrant his removal.

Hasan was shot four times in the attack and paralyzed from the chest down. He now uses a wheelchair.

[Update, 6:42 p.m. Dec. 3: This post has been updated to reflect the fact that the appellate court did not specifically rule that Hasan's beard was protected under freedom of religion.]

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