Defending the Fort Hood Shooting Suspect and the Challenge of Ensuring a Fair Trial

This is a rush transcript from "On the Record," November 11, 2009. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: All right, imagine this lousy job, being the lawyer for the accused Ft. Hood killer of 13. Major Hasan has not been charged, but that will happen. The expectation is that he'll be tried by a military court. Hasan's lawyer, retired colonel John Galligan, met with the accused killer in the hospital. Colonel Galligan joins us live.

And Colonel, you got a lousy job, but the Constitution demands that this man have counsel, and I think every lawyer in the country is certainly grateful to you that you have stepped up to this because nobody wants this job, but he certainly has constitutional rights.

Having said that, sir, you've spoken to your client. What was the experience like? I won't ask the attorney-client conversation, but what was it like talking to him in the hospital?

COL. JOHN GALLIGAN, U.S. ARMY (RET.), ATTORNEY FOR MAJOR HASAN: Well, it was very, very beneficial, but it was limited. I went down there for a very limited period of time. I spent about 30 minutes with him, and it was primarily to identify or introduce myself to him, advise him that family members had retained me and seek assurances from him that I wanted to do my utmost to defend him, but also to receive from him concurrence that he wanted me to be part of his defense team, since he is the client. Accompanying me was his military detail counsel, Major Martin.

VAN SUSTEREN: All right, is he...

GALLIGAN: I took him down with me, as well.

VAN SUSTEREN: Was he intubated still, or was he able to hold a conversation with you? I mean, what -- I mean, how -- what's his level of consciousness?

GALLIGAN: I was able to speak with him. The intubation tube had been removed earlier I believe that same day. But again, it was obvious to me that he was still heavily sedated because near the end of that half-hour visit, which was limited strictly to introducing myself and talking about counsel rights, I could see that his eyes were drowsy. And Major Martin and I both agreed that we needed to leave at that time and schedule another visit. And we're planning on doing that quite possibly as early as tomorrow.

VAN SUSTEREN: Colonel, I can only imagine what it's like to represent him. I mean, this man, you know, I mean, did the -- I mean, look, I know he's got a presumption of innocence and I know the challenges that you face, but he certainly -- you know, you think of these military installations as being safe, you think of soldiers at risk in Iraq, Afghanistan, and now this -- I can only imagine that you aren't particularly popular because people might not understand the role of the lawyer at this point. Are you getting hate mail? Are you getting bad phone calls at this point?

GALLIGAN: Well, I can tell you, today I did receive some questionable e-mails, and a paralegal in our office did receive some phone calls. And we notified local authorities so that appropriate steps can be taken.

But you know, concerning your basic question, how does someone approach a case like this -- as you know, I spent 30 years in the Army in all different positions, defense, prosecutor, appellate government counsel, and also as a military judge. And I think I was adamant in telling Major Hasan that I firmly believe in the military justice system and his right to a fair trial.

I consider it a privilege to be able to defend any soldier, including Major Hasan. That's been the earmark of my practice ever since I retired, and I've found that after a while, when you demonstrate to the public the importance of ensuring a fair trial, notwithstanding the serious nature of the offenses charged, most people will agree with you.

All of the soldiers that we have in uniform fight abroad, risk their lives, and they do that to protect our Constitution and the rights that it guarantees for a fair trial, and that extends to everyone, including my client.

VAN SUSTEREN: Well, you know, we have these clinical discussions about, you know, presumption of innocence and trials and fairness and everything. But you know, this is just so raw, you know, so absolutely raw, you know, what -- what this man is -- and I say "accused of," but frankly, it's very hard for me to use the word simply "accused of," but I will, you know, respect for the system. But at this particular point, I -- you know, frankly, "accused" is not the word that I would -- would necessarily use with my friends in talking about it.

GALLIGAN: Well...

VAN SUSTEREN: Is this -- is this likely to be a military prosecution, or is there any chance it'll be in a civilian court?

GALLIGAN: Well, you know, Greta, I mean, you -- we were talking earlier. You were using the word "accused." Let me just say this. As of tonight, I still have not been in receipt of a formal complaint or charge sheet that's used in military court-martials, the DD (ph) form 458. I haven't been in receipt of that.

The word on the street that I'm getting and hearing on national media outlets is that the military does intend to keep it in military channels. But again, not having seen a charge sheet, not having received specific notice from government officials that that's the way they intend to proceed, like you, I have some -- some questions.

I'm concerned about large issues, and that is where and if my client can receive a fair trial if a court-martial were to be convened here at Ft. Hood. As you know, the commander-in-chief, our president, was here for the memorial service. And I'm not the only person asking these questions. Earlier today, when I was in the supermarket and people had learned that I was on this case, many people, including many who have prior military affiliation, approached me and asked, Do you think he can get a fair trial here? So if that's uppermost in their mind, you can...

VAN SUSTEREN: You know -- and -- and Colonel...

GALLIGAN: ... realize why I'm also concerned about it. Yes.

VAN SUSTEREN: And Colonel, we all want a -- we all want a fair trial because, you know, in the end, we want justice. And I suspect that your client will get a fair trial. I suspect he's not going to be particularly pleased with the result, but indeed, the process must be fair. And Colonel, good luck, sir. Thank you.

GALLIGAN: Well, thank you very much, Greta, and just urge your listeners, as you did in the beginning, about the importance of ensuring a fair and just trial proceeding and trial in the end. Thank you.

VAN SUSTEREN: Well, I -- he's going to get it. He's not going to be happy with the results, I don't think, but he's going to get that fair trial. Colonel, thank you.

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