By Jim Forsyth
SAN ANTONIO, Texas (Reuters) - The top U.S. military appellate court on Monday ruled that the judge presiding over the case of an Army major charged with a 2009 massacre at Fort Hood, Texas is not impartial and ordered him removed.
The court also set aside the order by the judge, Colonel Gregory Gross, that accused gunman Major Nidal Hasan be forcibly shaved.
The action by the United States Court of Appeals for the Armed Forces further delays the trial of Hasan, 42, who is charged with 13 counts of premeditated murder after he allegedly opened fire on soldiers and support personnel in a room at Fort Hood in November 2009. Thirty-two people were also wounded before two civilian police officers shot Hasan four times, leaving him paralyzed from the chest down.
The court said that Gross has "allowed the proceedings to become a duel of wills between himself and Major Nidal Hasan, rather than an adjudication of the serious offenses with which Hasan is charged."
The appellate court, which is the ultimate decider of matters under the Uniform Code of Military Justice, said a "reasonable observer might reasonably question the military judge's impartiality," and ruled that Hasan has "shown a clear and indisputable right to removal of the military judge."
After two delays and after his request for a third delay was rejected, Hasan appeared in the courtroom at Fort Hood in June wearing a full beard, which is a violation of Army grooming rules. Gross repeatedly held Hasan in contempt of court, fined him $1,000 on six separate occasions, and removed him from the courtroom. Monday's ruling dismissed the six contempt citations.
Hasan has sought to keep the beard by claiming that the Religious Freedom Restoration Act of 1993 allowed him to declare his Muslim faith despite Army regulations.
"We need not and do not decide if and how the Religious Freedom Restoration Act might apply to Hasan's beard," the court ruled. "Should the next military judge find it necessary to address Hasan's beard, such issues should be addressed and litigated anew."
In a 10-page ruling, the appeals court said no evidence was presented to show that Hasan's beard was "disruptive to court proceedings" and said Gross may be biased in the case because he was on the post at the time of the shooting.
Victims of the shooting have complained that the case has dragged on too long and the military justice system has failed to provide them with closure in the case.
(Editing by Corrie MacLaggan and Cynthia Osterman)