Major Hasan Sanctioned For Failing To Shave For Court In Fort Hood Case

Maj. Nidal Hasan, an Army psychiatrist, is facing trial for 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the November 2009 attack at Fort Hood. Before that trial can occur, however, Hasan is facing a sanction that understandably fails to concentrate his mind as much as the looming death sentence: a second $1000 fine for failing to shave for court. While the military requires personnel to be shaven, Hasan is citing his Islamic faith as requiring him to appear in a beard. He has now been held in contempt of court twice for failing to shave by the judge, Col. Gregory Gross.

Since Hasan is expected to spend the rest of his life in jail or be put to death, a running fine would not appear a significant concern for him. Perhaps for that reason, Gross has threatened that he may order Hasan to be forcibly shaved at some point before his Aug. 20 trial. However, not having Hasan in the courtroom on pre-trial proceedings could create grounds for a later challenge. For that reason, judge, Col. Gregory Gross had Hasan taken to a nearby trailer to watch the proceedings by closed circuit television.

My guess is that a federal court would uphold the forced shaving order as well as the use of close circuit television. There have been a slew of challenges over military grooming and dress requirements. Courts have largely deferred to the military as a matter of good order and discipline in such matters. In Goldman v. Weinberger, 475 U.S. 503 (1986), an Orthodox Jew and ordained rabbi contested an order not to wear a yarmulke while on duty as a commissioned officer in the Air Force at March Air Force Base. The Supreme Court upheld the order (agreeing with the appellate court that reversed a district court order enjoining the order). The Court held:

The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment. Quite obviously, to the extent the regulations do not permit the wearing of religious apparel such as a yarmulke, a practice described by petitioner as silent devotion akin to prayer, military life may be more objectionable for petitioner and probably others. But the First Amendment does not require the military to accommodate [475 U.S. 503, 510] such practices in the face of its view that they would detract from the uniformity sought by the dress regulations.

The order to forcibly shave a defendant is clearly problematic, but is likely to be upheld under the same logic. The question is whether the defendant can waive being present in the hearing room and be allowed to keep his beard while watching from a trailer. This would however deny the jury the ability to see the defendant except by way of a television screen. It could also undermine the defense by making the defendant seem more dangerous or remote. What do you think?

Source: USA Today