Attorneys being forced to advise the soldier accused in the 2009 Fort Hood shooting rampage were allowed to leave his trial on Friday so they could prepare an appeal arguing that the Army psychiatrist was angling for a death sentence.
Military lawyers ordered to help Maj. Nidal Hasan as he represents himself argue that he’s using a “repugnant” defense strategy that violates their rules of professional conduct. When the judge refused to scale back their duties or let them take over Hasan’s defense, they said they would seek the help of a higher court.
Hasan is accused of killing 13 people and wounding more than 30 others at the Texas military base, but he has largely remained silent during the trial. He questioned none of the 10 witnesses who testified Friday morning, after allowing two of his three standby lawyers to leave to prepare their appeal.
Only his lead standby lawyer remained in the courtroom as testimony resumed, with witnesses describing a chaotic, bloody scene inside a crowded building at the Army post on Nov. 5, 2009.
“I kind of sat there looking dumbfounded,” said Capt. Brandy Mason, who recalled being shot but initially thinking it was only a sharp pain. “I didn’t think it was real. We sat there and looked at (Hasan), like ‘Really?’ Then somebody started screaming, ‘Training or not, get down! Get down!’”
Staff Sgt. Joy Clark said she checked for vital signs of soldiers lying dead near her. “I had thought about possibly throwing a chair at the shooter but witnessed someone else do that and get shot,” Clark said.
Sgt. 1st Class Paul Martin recalled bolting out a set of double doors and then running a zigzag pattern to make him a less easy target.
“I said he’ll have to shoot me again, but I know I’m getting out of this building,” Martin said.
Hasan declined to cross-examine the witnesses and mostly sat quietly, as he has done since his long-delayed trial began early this week.
How Hasan would defend himself was the biggest mystery heading into the trial that began under tight security at Fort Hood. The American-born Muslim wanted to argue that the killings were in “defense of others,” namely members of the Taliban fighting Americans in Afghanistan. But the judge denied that strategy.
Then after only the first day, Hasan’s standby lawyers accused him of plotting a defenseless strategy to assure a conviction. Hasan has called those accusations a “twist of the facts.”
The judge, Col. Tara Osborn, denied Hasan’s lawyers permission Thursday to actively take over his case or further reduce their already minimized role. Hasan’s lead standby attorney, Lt. Col. Kris Poppe, spent most of a full day of testimony Thursday taking no notes with only a small Post-It pad in front of him.
On Friday, Poppe said their appeal to the Army Court of Criminal Appeals would fall under a “novel area of the law.” Hasan said his attorneys could take more time off if needed.
Jeff Corn, a law professor at South Texas College of Law, has predicted such an appeal would likely be dismissed.
“As sympathetic as I am to him (Poppe) and the miserable position he’s in, I think he’s stuck. The law is clear: If you are a standby attorney for a pro-se defendant and the defendant wants to make decisions tactically disastrous, that’s his prerogative,” Corn said Thursday.
More than 30 witnesses have already testified during the trial, many of them soldiers who identified Hasan as the gunman who relentlessly fired with laser-sighted handguns inside a building where soldiers were waiting for vaccinations and medical clearance for deployment.
The trial was expected to last several weeks, but military prosecutors may finish their case much quicker than expected since Hasan is not questioning witnesses.
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