Fort Hood shooter has options to avoid death penalty

A military judge is still deciding whether Major Nidal Malik Hasan, who was paralyzed from the chest down in the incident on November 5, 2009 in which 13 people died, should face a court-martial and the death penalty.

But analysts said there are ways he could avoid execution.

A variation of the "naked plea" is one. It allows a defendant to admit guilt without cutting a deal with prosecutors, and could send the trial directly into the punishment phase.

That's a high-wire legal act because Hasan cannot offer a guilty plea under military law and has to hope a jury of military officers would show him mercy.

"It's the best evidence of contrition because you argue to the jury that he got nothing in exchange for pleading guilty. He's doing it because of his genuine regret, his remorse," said Geoffrey Corn, a professor at South Texas College of Law in Houston.

"He doesn't want to put the victims through any more testimony. He doesn't want to put the government through any more expense. He is ready to accept responsibility," Corn added.

"I think it's incredibly unlikely, but it would be a bombshell, right?"

Hasan, charged with killing 13 people and wounding 32 others, was examined this week by a panel charged with evaluating his mental state to determine if a trial is to go ahead.

His attorney, John Galligan, would not discuss possible strategies but said no trial should be ordered until he receives key evidence that includes a declassified presidential intelligence inquiry and a probe into how Hasan was handled by his superiors at the Walter Reed hospital in Washington.

"You're seeing the worst of the military justice system playing an evil hand in this case," said Galligan, a retired Army colonel.

Corn and two other three attorneys agree that Hasan could claim he was insane. They also say Galligan could argue that his client suffered from a diminished mental capacity at the time of the shootings.

Then there is a defense that has become increasingly common since the September 11, 2001 attacks -- blaming others in the chain of command.

In this case Hasan could argue his superiors failed to act after seeing he was troubled. "If all else fails, attack the chain of command," said Corn.

Reports have suggested Walter Reed officials overlooked deficiencies in his performance. And a hospital official at Fort Hood said she saw no red flags in the time he was in Texas.

"It's been all over the news that the military health system is breaking down," said lawyer Greg Rinckey, a six-year Army Judge Advocate General (JAG) Corps veteran who tries around 100 cases a year as a civilian attorney.

"I think that is one of the things he is going to say here, he was crying for help."

Attorneys say Hasan will have an uphill battle undermining the prosecution's case, largely built on eyewitness testimony linking him to the shooting, with 56 witnesses already testifying in evidentiary hearings.

"We're not talking about something done behind closed doors," longtime military lawyer Frank Spinner said.

Judge Colonel James Pohl recently ruled there's enough evidence for a trial and said it could be a capital case, saying there were "reasonable grounds to believe an aggravating factor exists."

Spinner, who represented Marine Capt. Richard Ashby, accused of killing 20 people by flying his jet into an Italian gondola in 1998, said the killing of 13 people would be such a factor.

Hasan could also "stipulate" to the facts in a written statement. If prosecutors allowed him to do that, a trial expected to last weeks could be decided in hours.

A diminished-capacity or outright insanity defense could be mounted if it could be showed that Hasan suffered from mental disease.

The trick is convincing a possibly insane client to use that defense.

"Galligan could tell him 100 times, 'This is your best chance,'" Corn said and he could say no."

© Copyright AFP Agence France-Presse GmbH - All rights reserved. This material may not be published, broadcast, rewritten or distributed. All reproduction or redistribution is expressly forbidden without the prior written agreement of AFP.