The impending court-martial for Maj. Nidal Hasan was already shaping up to be a historic trial, but now many in the legal community are shrugging at what could happen with Hasan wishing to represent himself.
The wide consensus from lawyers interviewed for this article is that military judge Col. Tara Osborn will have to grant the man accused of killing 13 people at Fort Hood on Nov. 5, 2009, his request to act as his own attorney.
A defendant representing himself in a criminal trial is uncommon, but not unheard of in all levels of offenses, including death penalty trials.
But no precedent has been set for a death penalty court-martial. Hasan places Osborn in an especially tough position, because he has previously stated he wishes to plead guilty to all charges.
That would be permissible in state or federal courts, but military justice rules prevent soldiers from pleading guilty to capital offenses when the death penalty is on the table.
“I am really glad I am not the person making that decision,” said New York attorney Ron Kuby, who was involved in a mass murder trial where his client decided to act as his own attorney in 1995.
Hasan has been called a self-radicalized Muslim, and could be acting with political motivations. He may be seeking martyrdom, and could use the trial as a platform to espouse his beliefs. Or he may just want to give up, said Richard Rosen, a former staff judge advocate at Fort Hood.
The trial could turn into “one long guilty plea,” placing Osborn in the precarious situation of essentially allowing the 42-year-old Army psychiatrist to plead guilty by not offering any defense, while upholding his constitutional right to act as his own attorney.
“I don’t think that is a box the judge can get out of — I have to let him do what I am not permitting to let him do,” Kuby said. “Good luck, colonel.”
Osborn will take up the matter Wednesday. Though she will urge Hasan multiple times to rethink his decision, she is constitutionally bound to allow him to act as his own attorney as long as Hasan is determined to be mentally competent.
He is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder.
The common adage for “pro se” representation among attorneys is that a lawyer who represents himself has a fool for a client.
Florida attorney Michael Minerva saw it firsthand. Minerva, now the CEO of the Florida Innocence Project, represented one of the most notorious serial killers in U.S. history: Ted Bundy.
Unlike what Hasan is seeking, Bundy convinced a judge to allow him to serve as part of his defense team. In many ways it was even worse than allowing Bundy to proceed solo, Minerva said.
Minerva acted as one of several co-counsel for Bundy’s 1979 trial in Miami for the brutal murder of two sorority sisters at Florida State University. He was convicted, sentenced to death and executed in 1989.
“I’m not saying the result would have been different, but it was hell going through because you had to fight the prosecutor as well as the client,” Minerva said.
Bundy would pursue one strategy, while his professional counsel would want to take another course. At one point during the trial, Bundy took over the questioning of police officers. He made officers describe a crime scene after it had been described quickly and in broad terms under questioning from the prosecution.
“He destructively asked them to give a detailed description of everything that they saw in that room, which emphasized to the jury just how bad it was,” Minerva said.
Bundy had taken one year of law school, which was enough to provide him some technical knowledge of trials.
“What he couldn’t see, which almost anyone representing themselves can’t see, is the significance of the evidence as a whole as it is appearing,” Minerva said. “You get too immersed in the minutiae and can’t objectively evaluate the evidence.”
Kuby places defendants who choose to represent themselves into three categories: strategic, political and crazy.
In 1995, the New York attorney represented a man named Colin Ferguson, whom he would put in the last category. Ferguson is serving a 315-year sentence for killing six and wounding 19 in a mass shooting on a New York City subway.
Prior to his trial, Ferguson fired Kuby and co-counsel in order to represent himself.
Ferguson allowed Kuby to serve in an advisory role during the trial, which will be offered to Hasan, if the military judge allows him to represent himself.
Kuby said Hasan likely falls into the political category. Those defendants usually act in protest to the authority of a court over them in order to promote a political cause, he said.
The strategic group are most often in cases where multiple defendants are on trial. It can humanize a defendant to a jury and provide an avenue for an accused to offer their side of events without having to face cross-examination.
If allowed to represent himself, Hasan’s trial could create a “cathartic” situation for many of the victims.
Hasan will be placed in a situation where he will directly question many of the victims and their surviving family members during cross-examination.
It happened in Ferguson’s trial.
When questioned by the “delusional paranoid,” surviving victims were able to identify Ferguson to his face and say “you shot me,” Kuby said. “The witnesses themselves were able to confront him with great dignity and equanimity.”