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Wednesday, August 07, 2013

Is Maj. Nidal Hasan cooperating with military prosecutors in an attempt to achieve "suicide by court-martial"?

Law enforcement officials are familiar with the typical pattern of "suicide by cop." But if accurate, this news article (which the Austin American-Stateman continues to update since I first saw it) suggests that Maj. Nidal Hasan may be trying to commit jihadi suicide by court-martial:

Maj. Nidal Hasan’s standby defense attorneys said Tuesday morning that they believe the accused Fort Hood shooter is "effectively acting in concert with prosecutors in achieving a death sentence."

In a motion filed late last night, Lt. Col. Kris Poppe said that Hasan’s behavior during jury selection, when he made no effort to keep potential jurors who questioned the death penalty, as well as his opening statement in which he took responsibility for the shootings show that he is trying to "remove impediments and obstacles to the death penalty."

Poppe and the two other military appointed defense lawyers asked to be removed from the case, but said they also stand ready to represent Hasan "if he decides he wants to fight the death penalty." ...

In American law (including military law), the right to defend oneself — even when that's a stupid and even suicidal path to choose — is guaranteed under the Constitution. Hasan has invoked that right and has persuaded the presiding judge that he's competent to make that decision, so he's defending himself.

unidentified soldier at memorial to the victims of the Fort Hood massacreBut as would also be nearly universal even in the civilian criminal justice system, the judge appointed "standby counsel" who would observe the proceedings and continue to counsel with Hasan privately to whatever extent Hasan permits that. The notion is that their private advice — which will always almost certainly be, "You're screwing this up, you're going to get yourself executed, let me please take over as your advocate in court to try to save your life!" — might eventually be heeded. And then the standby counsel is as prepared as practicable to immediately step in as the defendant's active advocate(s).

My guess is that what's happening today is that the presiding judge, Col. Tara Osborn, is going to re-visit the subject of Hasan's competency to make the decision to continue to represent himself. If only for purposes of future appeals, the judge will want to make a record of having done that (although the jurors won't know anything about it).

This same sort of thing has happened in civilian death penalty cases before — albeit not usually with the same jihadi motivations that Hasan has. But neither the civilian or military justice systems permit defendants to "game" them by first insisting on self-representation and then later insisting that they should get a new trial because their trial counsel (i.e., they themselves acting as their own lawyers) rendered constitutionally ineffective assistance. Basically, if the record shows that the choice of self-representation was freely made by someone legally competent to make it, both trial and appellate courts will let the consequences of that choice lead in their natural direction — even though the result at least superficially looks like state-assisted suicide.

It's also interesting that the standby counsel are asking permission to withdraw from that role. That's their putting on record their recognition that Hasan is ignoring everything they tell him, and that he's making it impossible for them to do their job effectively, but they will leave to the judge's decision whether some replacement might be able to do better. That's the proper and ethical thing for them to have done.

My guess is that the judge will probably reconfirm her earlier ruling that Hasan is mentally competent to make the decision to represent himself. The judge will repeat, on the record, her previous cautions and admonitions and get Hasan to reconfirm his decision on the record — again, outside the jury's presence. The judge will then probably politely deny the standby counsel's suggestion that they be replaced and tell them to keep standing by and doing their best to make themselves relevant.

I am content in all of this. The wheels of justice are slow but grind exceedingly fine. And in this battlefield in the war on terror — and that's exactly how Hasan himself sees the courtroom he's in — the terrorist is once again eager to be killed. Unlike the battlefield soldier, the military judge and jurors presiding over Hasan's trial aren't eager to kill him, but rather to see justice done and be seen to be done. But the end result is going to be the same.

Posted by Beldar at 12:36 PM in Global War on Terror, Law (2013) | Permalink | Comments (9) | TrackBack