Judge Rules to Allow Major Hasan to Continue with his Defense Strategy

The military court martial trial of the military officer accused in the 2009 shooting rampage at Fort Hood took a new turn yesterday. Many experts had already been surprised by US Army Major Nidal Hasan's decision to act as his own lawyer, something very rare in military trials. Then Hasan made an opening statement of less than one minute in which he stated that the facts would show that he was the killer. Even though acting as his own counsel, Hasan has a team of court-appointed lawyers whose role is to advise him by answering his questions about how to proceed with his personally developed defense strategy. The team of defense lawyers, led by Lt. Colonel Kris Poppe, has determined that Hasan is trying to guarantee himself a death sentence, saying they believe he is trying to convince jurors to convict him. After only one day of testimony, the lawyers said, they couldn't watch him fulfill a death wish. While the defense legal standby team cannot easily prevent Hasan from seeking his own conviction, the lawyers are faced with a question of legal ethics of major proportions. Lawyers are under a professional oath to protect the rights of clients and Poppe told the presiding judge on Wednesday that Hasan's strategy "...is repugnant to defense counsel and contrary to our professional obligations." Poppe told the judge he and the other standby lawyers want to take over the case. And if Hasan is allowed to continue on his own, they want their roles minimized so Hasan can't ask them for help with a strategy they oppose. The judge had to decide what to do, knowing that any decision will be scrutinized by a military justice system that has overturned most soldiers' death sentences in the last 30 years and last executed a soldier in 1961. Hasan faces a possible death sentence if convicted of the 13 counts of premeditated murder and 32 counts of attempted premeditated murder. Richard Rosen, a law professor at Texas Tech University and former military prosecutor who attended the first two days of trial, said, "I think whatever she [the judge] does is potentially dangerous, at least from the view of an appellate court." Rosen and other experts said that if the judge allows Poppe and Hasan's other standby defense attorneys to take over, the judge could be seen as having unfairly denied Hasan's right to defend himself, a right guaranteed by the Bill of Rights. But if she lets Hasan continue defending himself, she could be depriving him of adequate help from experienced attorneys. Another law professor who is an expert in military justice said, "The worst thing that can happen would be to retry the case all over again....At the end of the day, the defendant has the absolute right to decide who's going to represent him, including deciding to represent himself." When Poppe noted that Hasan didn't object to any jurors during jury selection, the judge suggested that Hasan could simply be following a different strategy to ensure he'd have more jurors, knowing that only one juror has to vote against a death sentence for him to be spared. "Some would think that is a brilliant strategy," the judge told Poppe. Experts agree, saying that Hasan declining to cross-examine most witnesses - especially victims who survived the shooting - wasn't necessarily a bad move, explaining that questioning victims could merely have angered the jurors. The trial resumed Thursday morning with the judge giving her decision on defense counsel requests. ~~~~~ And, dear readers, the defense attorneys have had their request denied. The judge sided with Hasan on Thursday, saying it's clear the standby attorneys simply disagree with Hasan's defense strategy. This decision may possibly be appealed by the Poppe standby legal team, as a matter of procedure, arguing that the judge's ruling will have a serious impact on the trial outcome. They will have a high hurdle to jump to get an appellate hearing during the trial because they are in essence challenging, without explicitly stating it, the determination that Hasan is mentally competent to stand trial. The bizarre twists in the Hasan trial continue.