August 28, 2013, 3:06 PM
Thirteen senior Army officers have sentenced Maj. Nidal Hasan to death for carrying out the horrific 2009 shooting rampage at Fort Hood Army base.
The panel's recommendation will now go to a convening authority, the general responsible for assembling the capital court-martial, for review and approval. The convening authority can approve or reduce the sentence.
On Friday, Hasan was unanimously convicted on 13 charges of premeditated murder and convicted of 32 charges of attempted premeditated murder. His conviction carries a mandatory minimum sentence of life in prison and the panel was authorized to consider the death penalty.
During sentencing the government presented 20 witnesses over two days, including soldiers who were injured as well as parents, spouses, and children of those who were murdered by Hasan.
Each described how the shooting has impacted their lives while Hasan, who was paralyzed in the shooting and is now confined to a wheelchair, sat about 20 feet away.
On Wednesday, in an emotional 50-minute closing statement, the government revisited the stories of each witness and then told panel, "The acts of 5 November were religiously motivated, but you should not punish him for his religion. You should punish him for his hate."
The government argued against the idea that a death sentence would result in martyrdom for Hasan. "He will never be a martyr because he has nothing to give. Do not be misled. Do not be fooled. He is not giving his life. We are taking his life. This is not his gift to God; this is his debt to society. This is not a charitable act. He is not now and never will be a martyr. He is a cold-blooded murderer," argued prosecutor Col. Michael Mulligan.
As a convicted defendant, Maj. Hasan had the right to give an unsworn statement before the court or to testify under oath. When it was his turn to present evidence at sentencing, he simply said, "the defense rests." He also declined to present a closing argument on Wednesday.
Before voting on a sentence of death, the panel must have already unanimously found Maj. Hasan guilty of premeditated murder. Then the panel must also have found there to be an aggravating factor - in this case the government argued that was multiple murders - and then consider all facts and circumstances including mitigating and extenuating evidence presented in the case.
A sentence of death then required a unanimous vote from the panel comprised of nine colonels, three lieutenant colonels and one major. The panel included two women and 11 men, with the highest-ranking officer being a female colonel, who acts as the president of the panel.
In courts martial, appellate review is mandatory and cannot be waived or withdrawn when the sentence includes death. Under military law, any sentence calling for more than one year of incarceration gets an automatic review by the Army Court of Military Review, which then goes to the Armed Forces Court of Appeals.
According to South Texas College of Law Professor Geoffrey S. Corn, "If his appeal gets through the process, it will be a long time before it is every carried out - the sentence of death."
It has been more than 50 years since the U.S. military executed a U.S. service member. Army Pfc. John A. Bennett was the last service member to be put to death, on April 13, 1961 after being convicted of the rape and attempted murder of an 11-year-old girl.
In 1983, the Armed Forces Court of Appeals ruled that military capital punishment was unconstitutional, but it was reinstated in 1984 when President Reagan signed an executive order adopting new rules for capital courts martial. According to the Death Penalty Information Center, there have been 16 military death penalty convictions since 1984, but 11 of those sentences have been overturned. The remaining five service members remain on death row.
Corn believes Hasan's sentence will survive appeals. "The efforts have been made in this case to do it right and that means we should have a high degree of confidence that this case will prevail on those appellate challenges," he said.
While review is automatic, Hasan's cooperation is not guaranteed. After dismissing multiple defense attorneys, Hasan waived his right to counsel and represented himself at trial and sentencing.
The court martial judge, Col. Tara Osborn, appointed stand-by counsel to assist Hasan throughout the case and repeatedly told Hasan that she believed his decision to represent himself is "unwise."
On Tuesday his stand-by defense counsel submitted a motion to present mitigating evidence that could help Hasan in sentencing. Hasan objected and Judge Osborn denied the motion, stating a pro-se defendant in the military justice system "is the captain of his own ship."
Col. Joseph Cerreto, a retired former Judge Advocate General, said he cannot imagine that appellate counsel will not be appointed to prosecute the appeal.
"Whether Hasan wants it or not, no court is going to order the death penalty or life incarceration without parole without appellate counsel having briefed and argued the case," he said.
Even if Hasan does not cooperate, appointed lawyers can note his opposition in their briefs to the court and then go ahead and raise any legal issues they deem appropriate.
One claim that cannot be raised on appeal is "ineffective assistance of counsel" as Hasan waived his right to appeal on that issue when he chose to represent himself in this case.
The panel also ordered that Hasan forfeit all pay and allowances and be dismissed from service.
CBS News Digital Journalist Paula Reid is licensed to practice law in Pennsylvania and New Jersey.
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