Monday, February 19, 2018
News Roundup

Nidal Hasan death sentence raises difficult legal questions

HOUSTON — Before Maj. Nidal Malik Hasan represented himself at his court-martial this month, charged with carrying out the bloody rampage at Fort Hood, many wondered: What would he say?

Victims scheduled to testify spoke of their concern that Hasan would bait them during cross-examination. Legal experts speculated that the Army psychiatrist might pontificate or otherwise disrupt the proceedings at the central Texas Army base.

But in the end, he said and did very little in the courtroom.

Hasan, 42, called no witnesses, gave no closing arguments and made no final statement before the jury on Wednesday sentenced him to death. Which raises a thorny legal question: Should defendants in such high-stakes military cases be allowed to represent themselves?

"To have this happen in a major, capital case is highly unusual. I've never seen anything quite like this," said Richard Rosen, a retired colonel and law professor at Texas Tech University School of Law. "I certainly think it will be an appellate issue."

Hasan repeatedly attempted to plead guilty to the Nov. 5, 2009, shooting but was barred by military law because it was a capital case. In the military, defendants can represent themselves in capital cases if deemed competent.

When Hasan told the military judge, Col. Tara Osborn, he was representing himself for strategic reasons, she urged him to reconsider. "You would be better off with a trained lawyer who would know the rules of court-martial, the rules of evidence, the rules of law," she said.

Osborn allowed Hasan to represent himself, but insisted over his objections that his three military attorneys remain at his side as standby counsel, or legal advisers.

He told the judge he intended to present a "defense of others" legal argument, admitting that he attacked deploying soldiers but rationalizing that he did so to protect Taliban leaders overseas. The judge rejected that defense, saying it was not allowed under military law.

Hasan appeared engaged at the start of his court-martial. In his opening statement he admitted to the shooting and reiterated his "defense of others" claim, saying he grew disillusioned with the U.S. military, switched sides and became a mujahedeen, or Muslim guerrilla fighter. He cross-examined a former supervisor, noting that the doctor gave him a glowing performance evaluation before the shooting.

But Hasan did little else after that.

"He didn't want to play in this game, to participate in the process," said Geoffrey Corn, a former military prosecutor who is now a professor at South Texas College of Law in Houston.

Hasan effectively boycotted the proceedings, rarely objecting and submitting only a single piece of evidence — his glowing performance evaluation.

His military legal advisers asked to be removed, accusing Hasan of seeking the death penalty. He denied the allegation.

In their request, unsealed after sentencing, the lawyers appeared to have irreconcilable differences with Hasan, arguing his trial strategy was "imprudent, repugnant and possibly criminal."

The judge repeatedly urged Hasan to rely on his military advisers, or on a private lawyer, particularly at sentencing.

"You understand that, if you continue to represent yourself, you cannot later claim that your representation was ineffective?" she asked.

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