Hasan's Attorney May Pursue Insanity Defense

Army Major Nidal Hasan, the psychiatrist charged with killing 13 soldiers and injuring 32 others at the Fort Hood military base in Texas, will not plead guilty to the crimes and may assert an insanity defense when he is court-martialed. Hasan's attorney, John Galligan, filed a motion in early December to block the mental examination that could establish the foundation for an insanity defense until other procedural questions are decided.

Galligan, a former military judge, told Dallasnews.com that he has serious questions about Hasan's competence. These questions may not only impact the ultimate determination of Hasan's sanity, they may also impact Hasan's ability to perform the tests required for a successful psychiatric examination.

"I can go and for brief periods of time engage in coherent conversation with him," Galligan explained. "But when a person cannot engage in detailed and lengthy conversations, I have grave concerns."

Hasan's present mental state is relevant to determining whether a court martial occurs under the standards set forth in the Uniform Code of Military Justice. If Hasan cannot understand the proceedings and assist in his defense, a court martial may not take place until and unless his condition materially improves. But to be absolved of responsibility for the Fort Hood murders, Hasan must show a three-judge military tribunal by clear and convincing evidence that due to a severe mental disorder, he was unable to appreciate that his actions were wrong.

Successful assertion of an insanity defense in a court martial is a rarity, with Dallasnews.com reporting that the defense was only successful in six of more than 20,000 cases between 1990 and 2006. This may be due in part to the fact that the evidence sufficient to establish insanity in a military murder trial paradoxically implicates the military command for not weeding out the murder suspect. The same proof that would exonerate Hasan of responsibility for the Fort Hood murders — proof of a pre-existing serious mental defect making him unable to appreciate the wrongfulness of his actions — would likewise prove Hasan's lack of fitness for military service.

In order to assert the insanity defense successfully, Hasan would have to overcome evidence that he was sufficiently "sane" to perform his job duties on an ongoing basis in the months leading up to the Fort Hood murders. Early indications of Hasan's presumed psychiatric difficulties that emerged during his psychiatric training and raised flags among his professors, while relevant, could be readily rebutted by evidence that he completed his studies and embarked on his career as an Army psychiatrist.

Insanity, in court-martials as well as other court proceedings, is a legal determination made on the basis of psychiatric evidence. But notably, there is no acceptance of the concept of "insanity" in the psychiatric field. The Diagnostic and Statistical Manual used to establish psychiatric disorders does not define the term or attempt to specify which mental conditions might meet the legal standard.

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