The case against the accused Fort Hood shooter will go into uncharted territory today with Maj. Nidal Hasan’s pending request to represent himself in his upcoming death penalty court-martial.
Since President Ronald Reagan reinstated the death penalty in the military in 1984, no service member has stood trial without the assistance of a professional attorney.
Hasan will be in court today on post to ask precisely for that. Presiding Judge Col. Tara Osborn should be constrained to a script of questions to determine whether Hasan made his decision intelligently.
A retired judge from the Army Court of Criminal Appeals said disallowing Hasan’s request would likely create a scenario where emergency appeals would hold up proceedings. It would be similar to when Hasan’s military-appointed attorneys appealed a decision to forcibly shave the 42-year-old Army psychiatrist last year.
But allowing Hasan to represent himself creates new appellate issues if the defendant is found guilty and sentenced to death for the 13 shooting deaths that occurred on post Nov. 5, 2009, said retired Col. Lisa Schenck, now an associate dean at George Washington University’s law school.
The Army has had issues with death penalty convictions being overturned based on the ineffectiveness of lawyers, and has worked to place the highest qualified attorneys on those cases.
“This throws a wrench in that,” Schenck said. “Because now if you can ask to represent yourself, you are either waiving all appellate issues as trial defense counsel, or there is a feeding frenzy of litigation. There are so many issues.
“Nevertheless, under military law, the accused has a right to waive representation by counsel, but only if the military judge finds the accused is competent, understands the disadvantages of self-representation, and that the accused understands the waiver and it is voluntary,” Schenck said. “Also, the military judge may require the defense counsel to remain present even if the accused represents himself.”
Under the rules for courts-martial, Hasan’s right to conduct his defense personally could be revoked if he “is disruptive or fails to follow basic rules of decorum and procedure.”