FORT HOOD — Maj. Nidal Hasan said Monday that he will pursue a “defense of others” argument in a tactic that will likely frame the Nov. 5, 2009, mass shooting on post as an act to prevent violence against Muslims.
The accused Fort Hood shooter told the military judge shortly after being granted a request to represent himself he had a new defense strategy. He placed himself in “uncharted territory” by defending himself in a rare death penalty court-martial, Hasan said.
Hasan requested a three-month delay to the start of his court-martial to prepare his defense. He had previously told the presiding judge, Col. Tara Osborn, no delay would be necessary if she granted his request to represent himself.
Hasan asked for time to prepare the defense and create a new witness list.
His defense will revolve around a portion of law similar to self-defense, but instead involves the protection of a third party from imminent harm.
Former Fort Hood Staff Judge Advocate Richard Rosen called the tactic “frivolous” and said it would not hold up because the victims of the mass shooting were not in the process of attacking anyone.
Most were at the Soldier Readiness Center the day of the shooting in preparation for a deployment to Afghanistan.
“Maybe he thought they were going to go out and kill Muslims, and he saw them as a threat,” said Rosen, a law professor at Texas Tech University. “I don’t see how that works here. I don’t think it applies.”
Hasan will be back in the Fort Hood courtroom today for another pretrial hearing. With jury selection still slated to begin Wednesday, his request for a delay will likely take precedence over any other pending matter.
If granted, it would push back the beginning of testimony to just one month shy of the four-year anniversary of the shooting.
Hasan is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder.
The judge will weigh whether moving forward with the trial will create any disadvantage for Hasan. Osborn also will likely consider the possibilities of any conviction being overturned in appellate court, Rosen said.
“I think that is the thing that is at the back of her mind, to avoid busting the case,” Rosen said.
Before ruling that Hasan could represent himself, Osborn made repeated warnings. She told Hasan it would be “unwise” for him to represent himself and she urged him to reconsider his choice multiple times.
Hasan will be forbidden from pleading guilty and cannot make any statements implicating himself in the shooting. Osborn indicated that Hasan will not be able to use the trial as a platform to espouse his beliefs.
“You cannot make any speeches,” she said. “You can’t give a long, rambling speech if there is no evidence to support.”
She also warned Hasan of getting “personal” with witnesses and forbade any “name calling.” If Hasan violates her rules, Osborn said she would revoke his right to represent himself.
Osborn mulled over the decision based on a concern that Hasan might not be physically capable of conducting his defense. The major was left paralyzed from the chest down and with nerve damage in his left arm after being shot multiple times by a Fort Hood police officer.
A Fort Sam Houston doctor testified Monday, telling the court Hasan is able to sit for four-hour periods as long as he is given regular breaks to stretch. But he said Hasan’s concentration could be affected if forced to sit upright for more than 12 hours a day.
Osborn repeatedly warned Hasan that undertaking a court-martial would be far more stressful than assisting counsel, making note of his physical limitations as well as his lack of any formal legal training.
“I’m going to do the best I can,” Hasan said.