                        Nidal M. HASAN, Major
                         U.S. Army, Appellant

                                    v.

                         Gregory GROSS, Colonel
                  U.S. Army, Military Judge, Appellee


                       Nos. 13-8011/13-8012/AR


              Crim. Army Misc. Nos. 20120876/10120877


       United States Court of Appeals for the Armed Forces


                       Decided December 3, 2012


                               PER CURIAM


                                 Counsel


For Appellant: Lieutenant Colonel Kris Poppe, Major Christopher
Martin, and Captain Kristin McGrory (on brief).


For Appellee: Lieutenant Colonel Amber J. Roach, Captain Chad
M. Fisher, and Captain Kenneth W. Borgnino (on brief).


Military Judge:   Gregory Gross


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
Hasan v. Gross, 13-8011/8012/AR


        PER CURIAM:

        This case comes to us on an interlocutory appeal prior to

the start of Appellant’s court-martial.    Appellant seeks (1) a

writ of prohibition, barring enforcement of the military judge’s

order that Appellant’s beard be forcibly shaved on the grounds

that the order violates the Religious Freedom Restoration Act

(RFRA) of 1993, 42 U.S.C. §§ 2000bb to bb-4 (2006), and (2) a

writ of mandamus ordering the removal of the military judge on

the basis of actual bias, or in the alternative, the appearance

of bias.    Applying the heightened standard required for mandamus

relief, we conclude that based on a combination of factors, a

reasonable person, knowing all the relevant facts, would harbor

doubts about the military judge’s impartiality.    United States

v. Martinez, 70 M.J. 154, 158 (C.A.A.F. 2011); United States v.

Quintanilla, 56 M.J. 37, 78 (2001); United States v. Wright, 52

M.J. 136, 141 (C.A.A.F. 1999); United States v. Kincheloe, 14

M.J. 40, 50 (C.M.A. 1982).    Thus, we order the removal of the

military judge on the basis of the appearance of bias.    As a

result, the military judge’s order to forcibly shave Appellant

is vacated, as are the six contempt citations.    We need not and

do not decide if and how RFRA might apply to Appellant’s beard.

Should the next military judge find it necessary to address

Appellant’s beard, such issues should be addressed and litigated

anew.

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Hasan v. Gross, 13-8011/8012/AR


                        Factual Background

     Appellant is charged with thirteen specifications of murder

and thirty-two specifications of attempted murder arising from

shootings that occurred on November 5, 2009, at Fort Hood,

Texas.   A trial on the merits has not yet begun.

     The military judge in this case serves as the Chief Circuit

Judge at Fort Hood.   In this capacity, he detailed himself to

Appellant’s case.   At the time of the incident, he was at Fort

Hood presiding over a court-martial and his family was shopping

at a location on the installation.    During and after the

shooting, the buildings on the installation were placed on

lockdown, including the building in which the military judge was

hearing the court-martial.

     On June 6, 2012, Appellant, a practicing Muslim, requested

a religious exception from AR Reg. 670-1 from his commander.

See Dep’t of the Army, Reg. 670-1, Uniforms and Insignia para.

1-8.a.(c)(2) (3 Feb. 2005) (Rapid Action Revision, May 11, 2012)

[hereinafter AR Reg. 670-1] (“Males will keep their face clean-

shaven when in uniform or in civilian clothes on duty.”); Dep’t

of the Army, Reg. 600-20, Personal-General, Command Policy para.

5-6.g.(4)(h)4. (Mar. 18, 2008) (Rapid Action Revision, Sep. 20,

2012) [hereinafter AR Reg. 600-20] (permitting a commander to

approve a request for accommodation).   His commander denied his

request and directed him to comply with the Army’s grooming

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Hasan v. Gross, 13-8011/8012/AR


standards, but took no further action to enforce Appellant’s

compliance.

     On June 8, 2012, Appellant appeared at a session pursuant

to Article 39(a), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 839(a) (2006), in the proper uniform but with a beard.

The military judge stated on the record that Appellant’s beard

was a “disruption to this trial and in violation of RCM 804.”

The military judge warned Appellant that if he refused to shave

he would be removed from the courtroom and required to

participate in future sessions of the trial by closed-circuit

television either in the deliberation room or in a trailer

outside the courtroom.   Defense counsel noted that except for

the beard, Appellant was in the proper uniform and invited the

military judge’s attention to the discussion under Rule for

Courts-Martial (R.C.M.) 804, which states that “‘[i]n order to

justify removal from the proceedings, the accused’s behavior

must be of such a nature as to materially interfere with the

conduct of the proceedings.’”   Following the Article 39(a),

UCMJ, session, the military judge went to the deliberation room

latrine.   He found what he described as “what appeared to be

feces spread out on the floor” of the latrine.    He then ordered

defense counsel to “[g]et someone over to the courtroom

immediately” to clean the latrine and stated that “[t]he accused

will not use that latrine again.”     At each subsequent hearing,

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Hasan v. Gross, 13-8011/8012/AR


the military judge held Appellant in contempt, fined him $1000,

and had him removed from the courtroom to watch the proceedings

by closed-circuit television.

     Defense counsel submitted a “Renewed Motion to Disqualify

the Military Judge.”1   The defense argued that the military judge

had become personally biased against the accused because of his

beard.   Defense counsel also cited the latrine incident and

stated that Department of Emergency Services (DES) personnel

determined that the substance on the floor was in fact mud

tracked in by a DES guard.   With respect to his ruling that

Appellant’s beard was a disruption, the military judge

explained:

     Defense, I agree with you that the accused is not being
     disruptive, as in a normal case, where someone is yelling,
     arguing with the military judge, or civilian judge . . . .
     However, I disagree with your assertion . . . that his
     appearance does not take away from the dignity, order and
     decorum of a court-martial . . . .

     . . . .

     . . . The accused in this case does not have the exception.
     His conduct is disrespectful. He is disobeying an order
     from the court; he is disobeying an order from his
     commander to be clean shaven. His appearance is
     disruptive.

A recess was called in order to have Appellant removed from the

courtroom and relocated to a trailer outside the building where


1
  Defense counsel had previously moved for the military judge’s
recusal based on his close ties to Fort Hood and his and his
family’s physical presence on Fort Hood during the shooting.
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Hasan v. Gross, 13-8011/8012/AR


Appellant could see and hear the proceedings by closed-circuit

television.   The military judge denied the recusal motions.

     Appellant filed for extraordinary relief with the Court of

Criminal Appeals (CCA).   When his petition was denied below,

Appellant sought relief in this Court on August 6, 2012.   On

August 27, 2012, we denied the writ-appeal without prejudice

because the military judge had not yet issued a definitive order

for Appellant to be forcibly shaved.

     On September 6, 2012, the military judge ordered Appellant

to be forcibly shaved, but stayed execution of this order until

Appellant had the opportunity to petition the CCA for relief.

On September 19 and 20, 2012, Appellant filed for relief with

the CCA.    In a divided opinion, the CCA denied relief on October

18, 2012.   Hasan v. United States, ARMY MISC Nos. 20120876,

20120877, 2012 CCA LEXIS 399, at *16, 2012 WL 5077652, at *4 (A.

Ct. Crim. App. Oct. 18, 2012).    On October 22, 2012, this Court

stayed further proceedings pending consideration of Appellant’s

two writ-appeal petitions.2


2
  Appellant’s writ-appeal petitions were filed on November 7,
2012, and the Government’s responses to both of Appellant’s
writ-appeal petitions were filed on November 16, 2012. In view
of the existence of a vacant position on the Court, the Chief
Judge called upon Senior Judge Andrew S. Effron to perform
judicial duties in this case, and Senior Judge Effron consented
to perform said judicial duties under Article 142(e)(1)(A)(ii),
Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(ii)
(2006). See Hasan v. Gross, 71 M.J. 386, 387 n.* (C.A.A.F.
2012).
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Hasan v. Gross, 13-8011/8012/AR




                              DISCUSSION

        To prevail on his writ of mandamus, Appellant must show

that:    (1) there is no other adequate means to attain relief;

(2) the right to issuance of the writ is clear and indisputable;

and (3) the issuance of the writ is appropriate under the

circumstances.    Cheney v. United States Dist. Court for D.C.,

542 U.S. 367, 380-81 (2004).    We conclude that Appellant has met

his burden.

Impartiality on the Part of the Military Judge.

        In the military context, the appearance of bias principle

is derived from R.C.M. 902(a):    “A military judge shall

disqualify himself . . . in any proceeding in which that

military judge’s impartiality might reasonably be questioned.”

The standard for identifying the appearance of bias is

objective:    “[a]ny conduct that would lead a reasonable man

knowing all the circumstances to the conclusion that the judge’s

impartiality might reasonably be questioned.”    Kincheloe, 14

M.J. at 50 (alteration in original) (internal quotation marks

omitted).    As in the civilian context, recusal based on the

apparence of bias is intended to “promote public confidence in

the integrity of the judicial process.”    Liljeberg v. Health

Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988).     “[W]hat

matters is not the reality of bias or prejudice but its

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Hasan v. Gross, 13-8011/8012/AR


appearance.”   Liteky v. United States, 510 U.S. 540, 548 (1994).

In the military justice system, where charges are necessarily

brought by the commander against subordinates and where,

pursuant to Article 25, UCMJ, 10 U.S.C. § 825 (2006), the

convening authority is responsible for selecting the members,

military judges serve as the independent check on the integrity

of the court-martial process.   The validity of this system

depends on the impartiality of military judges in fact and in

appearance.    For the reasons stated below, we order the removal

of the military judge based on the appearance of bias.

     As an initial matter, the command, and not the military

judge, has the primary responsibility for the enforcement of

grooming standards.   See AR Reg. 600-20; Dep’t of Defense Instr.

1300.17, Accommodation of Religious Practices Within the

Military Services (Feb. 10, 2009).    The maintenance of

discipline, unit cohesion and unit morale are command

responsibilities and functions.   A military judge's contempt

authority is directed toward control of the courtroom.     Although

the military judge here stated that Appellant’s beard was a

“disruption,” there was insufficient evidence on this record to

demonstrate that Appellant’s beard materially interfered with

the proceedings.   See R.C.M. 804 Discussion (“In order to

justify removal from the proceedings, the accused’s behavior

should be of such a nature as to materially interfere with the

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Hasan v. Gross, 13-8011/8012/AR


conduct of the proceedings.”).    Thus, taken together, the

decision to remove Appellant from the courtroom, the contempt

citations, and the decision to order Appellant’s forcible

shaving in the absence of any command action to do the same,

could lead an objective observer to conclude that the military

judge was not impartial towards Appellant.

     In light of these rulings, and the military judge’s

accusations regarding the latrine, it could reasonably appear to

an objective observer that the military judge had allowed the

proceedings to become a duel of wills between himself and

Appellant rather than an adjudication of the serious offenses

with which Appellant is charged.

     Moreover, we are cognizant that the military judge and his

family were present at Fort Hood on the day of the shootings.

While this fact alone is not disqualifying, when viewed in light

of the factors identified above, an objective observer might

reasonably question the military judge’s impartiality.   See

R.C.M. 902(a); see also Nichols v. Alley, 71 F.3d 347, 352 (10th

Cir. 1995) (holding that, even in the absence of impropriety,

the judge presiding over the initial trial of the Oklahoma City

bombers had to be recused because (1) his court was one block

away from the explosion, (2) his court was physically damaged by

the blast that killed 169 people, and (3) the blast “injured a



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Hasan v. Gross, 13-8011/8012/AR


member of his staff, as well as other court personnel and their

families”).

     Having concluded that Appellant has shown a clear and

indisputable right to removal of the military judge, we further

determine that there is no other adequate means for Appellant to

attain relief and that removal is appropriate under the

circumstances.   Cheney, 542 U.S. at 380-81.

                             DECISION

     Appellant’s writ-appeal petitions for mandamus and

prohibition are hereby granted.    In light of the above, the

military judge is ordered removed.     The appropriate authority

shall detail a new military judge in this case.    Further, the

contempt convictions against Appellant, as well as the military

judge’s order to forcibly shave Appellant, are hereby vacated.




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