FORT HOOD — A judge postponed ruling Wednesday on whether the Army major accused of killing 13 on post is entitled to more time to assemble a defense claiming those deaths were justified.
Maj. Nidal Hasan, the accused Fort Hood shooter, will have until Tuesday to prepare his “defense of others,” a strategy he said will show that he was defending members of the Taliban and their spiritual leader.
Hasan could face the death penalty if convicted. Military judge Col. Tara Osborn said it became apparent Hasan would need more time to prepare his argument for a three-month delay as he filed last-minute motions leading up to the start of Wednesday’s hearing.
The start date of Hasan’s trial has been in flux since Monday when the 42-year-old Army psychiatrist was granted the right to represent himself.
Spectators Wednesday expected to hear Hasan go into the specifics of his new defense tactic. On Tuesday, the judge asked Hasan to offer his defense in order to gauge whether his requested delay is necessary.
The likelihood that Hasan will be granted a continuance will be based not on the merits of his case, but instead on the logistics, said a former judge at the Army Court of Criminal Appeals.
Hasan will need time to assemble a witness list, document what he expects their testimony will show and possibly argue why their presence during trial is essential, said retired Col. Lisa Schenck, a dean at George Washington University’s law school.
“Under the eyes of U.S. law, he is defending the enemy,” Schenck said. “It would be a valid defense, except for the matter that we are at war. It doesn’t make sense.”
Even if the defense is invalid, Osborn’s best course of action may be to grant a delay as long as the request is not frivolous, Schenck said.
Denying the request would raise the possibility of the case becoming mired in appeals, said Hasan’s former defense attorney, John Galligan.
“If (Osborn) denies it, she’s going to have to make some specific finds of fact to support her decision,” Galligan said. “And I think that becomes a significant appellate issue.”
Wednesday’s hearing was rife with frustration from all sides. Osborn expressed aggravation with the last-minute filings while Hasan’s former attorneys argued over the nature of their role in the case.
They appeared hesitant to offer any advice in Hasan’s new tactics in which it appears he will claim killing soldiers on Nov. 5, 2009, was justified because many were deploying to Afghanistan to hunt and kill members of the Taliban.
The three court-appointed Army lawyers remain as Hasan’s standby counsel to answer any of Hasan’s legal questions, perform research or step in should Hasan wish they resume representing him.
Former lead defense attorney Lt. Col. Kris R. Poppe said researching for Hasan would cross an “ethical line.” Poppe said the selection of cases or documents that would bolster Hasan’s case was in effect legal advice.
“I become effectively a shadow attorney for Maj. Hasan,” Poppe said.
The judge ordered Poppe to perform whatever legal work Hasan requests.
“I’m really at a loss to understand their bewilderment,” said Col. Mike Mulligan, lead prosecutor.
Osborn also ordered the government to ensure resources were put into place to allow Hasan to adequately conduct his defense and clarified the logistics for performing Internet research.
Hasan has been prohibited from searching the Internet, and asked if he could look over someone’s shoulder while they searched the Web on his behalf instead of printing his search requests on paper.
Hasan said he would rather have that than “destroy all those trees for something I may look at for a few seconds.”
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