Ken Kalthoff, NBC 5 News
A new judge has decided a Fort Hood shooting suspect Maj. Nadal Hasan can still face the death penalty if convicted in the worst mass shooting on a U.S. military installation during a hearing on Wednesday.
Mass murder suspect Maj. Nidal Hasan faced a new judge Wednesday for pretrial hearings in his Fort Hood court-martial, which has moved slowly through the military justice system for more than three years.
Hasan's beard is a major issue in the case.
Army Col.Tara Osborn took over last month after the previous judge was removed by an appeals court over implied bias in contempt rulings about Hasan's beard.
Hasan's facial hair is now longer than it was in past court appearances when Judge Gregory Gross ordered him removed from the room for refusing to shave.
Hasan claims removing the beard violates his Muslim faith.
The new judge has set aside the contempt findings, overlooking the beard, while reconsidering other legal decisions that happened under the previous judge. Osborn indicated Wednesday there will be more delays.
Hasan is facing a death sentence for 13 counts of premeditated murder and 32 counts of attempted murder, stemming from the Nov. 5, 2009, shootings at Fort Hood.
Hasan's attorneys said in court again Wednesday that he wants to plead guilty and one of the biggest issues for Wednesday's hearing was to be a defense motion to overturn rules that forbid Hasan from entering a guilty plea.
Dallas attorney Colby Vokey, a military law expert and former Marine Lt. Col., said guilty pleas are not allowed in military death penalty cases.
"They are challenging that rule as being unconstitutional, in that if you want to take responsibility you should be able to," Vokey said.
Defense lawyers withdrew that issue Wednesday afternoon but made it clear they intend to pursue it.
Wednesday morning, Osborn upheld the previous judge's denial of three other defense motions objecting to the Army's decision to seek the death penalty, request media consultation and victim outreach consultation.
Osborn told the lawyers she wants to review other courtroom matters considered by the previous judge when Hasan was ordered out of the room.
Osborn also inquired about seating arrangements for a jury panel in the Fort Hood courtroom, implying she intends to hold a trial there.
The jury in an Army court-martial will be comprised of Army officers. The lawyers at Wednesday’s hearing said jurors could be selected from the entire U.S. Army, not just from Fort Hood where there has been extensive publicity about the case.
"No matter how much they try, potential jury members are going to know about this case," Vokey said. "It’s impossible not to and what you want is an unbiased jury."
Vokey has worked with Col. Osborn on other cases and said she is an excellent judge.
"I just did a trial in front of her at Fort Bragg, just before Thanksgiving,” Vokey said. “So she’s a very capable judge, a very solid judge, a good judge to have on a serious case like this.”
Osborn set another hearing for pretrial matters on Feb. 27 and 28 but has not set a trial date.