FORT HOOD, Texas (AP) — Col. Michael Mulligan stood up and whispered to a fellow prosecutor who had just finished questioning a witness in the Fort Hood shooting trial, prompting the military lawyer to stand back up and ask how many bullet holes the gunman left behind.
When Mulligan saw that frustrated jurors couldn’t hear another witness’ testimony, he asked the judge overseeing Maj. Nidal Hasan’s military trial to tell the witness to slow down and speak up.
The lead prosecutor in the case against Hasan, who is accused of killing 13 people at the Texas military base in 2009, has been something of a quality-control specialist, watching for any mistakes or oversights that could bolster a future appeal.
Taking the trouble to confirm the number of bullet holes and making sure jurors can hear every witness may seem superfluous in a trial where the suspect has already told jurors he was responsible for the worst mass shooting ever on a U.S. military base.
But Mulligan and other prosecutors know that their biggest hurdle likely isn’t securing a conviction and death sentence, but rather making it though the military’s appeals courts — which have overturned most death sentences they’ve reviewed.
Mulligan, an experienced prosecutor with distinctive round glasses and a carrying voice, did not deliver the prosecution’s opening statement and has questioned fewer than half of the 70 witnesses who have testified so far. He has occasionally spoken up to make sure procedures are being followed, and twice this week, his fellow prosecutors asked more questions after he quietly spoke to them.
“Remember that Mulligan is not just a lawyer, he’s an officer and a leader, and he’s in the Army,” said Geoffrey Corn, a professor at the South Texas College of Law who taught Mulligan at the graduate level. “One of the fundamental responsibilities of a leader in the Army is to prepare your subordinates to do your job.”
Mulligan’s appointment was a sign of how seriously the Army takes the Hasan case, Corn said. Mulligan has served in high-level Army positions in Iraq, Germany and the United States, according to an official biography.
He is also a rarity in the military justice system: a prosecutor who has successfully put a soldier on death row. Mulligan prosecuted Hasan Akbar, a soldier condemned for killing two in an attack on fellow soldiers in Kuwait during the 2003 Iraq invasion.
Such sentences are rare in the military justice system. Only 16 death sentences have been handed down during court-martials, or military trials, over the last three decades — and 11 of those have been overturned, most on appeal due to errors made at trial. No active-duty soldier has been executed since 1961.
Just last week, an Air Force appeals court overturned the sentence of Air Force airman Andrew Witt, condemned in 2005 for killing two people at Robins Air Force Base in Georgia.
Corn speculated that such case are on Mulligan’s mind.
“He knows probably better than most people wearing uniform today … that the trial has to be done as perfectly as humanly possible,” Corn said.
An overturned sentence for Hasan would be an embarrassment for Army officials, as the death penalty was a key reason for even having an expensive, long-delayed trial. Hasan wanted to plead guilty but wasn’t allowed because a death sentence was on the table.
Hasan has put up almost no defense so far, letting almost every prosecution witness pass without questions or objections. Hasan, who is acting as his own attorney during the trial, acknowledged the prosecution’s overwhelming advantage in his brief opening statement: The evidence against him, Hasan said, would clearly show he was the shooter.
But appeals are automatic in death row cases. That means appellate judges, who are accustomed to overturning more death penalty cases than they let stand, will pore through the trial record and evidence if they get the case.
While prosecutors clearly have an advantage in how much evidence is on their side, the 13-officer jury must be unanimous in convicting Hasan of premeditated murder and for approving a death sentence.
That’s when Mulligan’s experience will be particularly crucial, Corn said.
“Proving guilt was not particularly significant,” he said. “It was going to be in sentencing … and it was going to be on appeal.”
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