A military judge will attempt to get the court martial of the Ft. Hood massacre suspect back on track on Friday, after two weeks of delays caused by Maj. Nidal Hasan's request to represent himself, and the surprising argument he has asked to use in his defense, 1200 WOAI news reports.
Col. Tara Osborn had hoped to have begun by now to begin selection of the panel of officers which will sit as the jury for Hasan, 42, who is charged with killing 13 people and wounding 32 in a shooting rampage at the Central Texas Army post in 2009, but Hasan's request to represent himself, and a dispute over his proposed justification defense, forced her to send prospective jurors back home and deal with an increasingly tangled legal situation.
Osborn granted Hasan's request to act as his own attorney, but then she was presented with objections by his three military lawyers whom she appointed as 'standby and advisory counsel.' They said having to advise Hasan on his proposed defense argument that he opened fire on soldiers at the post to 'on behalf of the Islamic Emirate of Afghanistan, the Taliban, and it's leader, Mullah Omar' would be unethical, and they asked the judge not to require them to participate in that defense.
"Defense lawyers must represent their client zealously, however the Code of Professional Conduct for attorneys forbids actions that would be a 'fraud on the court'," former Army prosecutor Jeffrey Addicott, now a professor of law at St. Mary's University in San Antonio, told 1200 WOAI news Thursday. "If the defense counsel knows that their client wants him to advocate a falsehood, then they cannot do it, and they must seek withdrawal."
Addicott said the 'defense of others' argument is 'nonsense.'
Ft. Hood said the judge is 'expected to announce rulings' at Friday afternoon's hearing.
"In an important case like this, a judge is going to be as careful as possible not to screw it up," said Gary D. Solis, a former Marine Corps prosecutor and author of 'The Law of Armed Conflict.'
"One of the most frequent bases for reversal of a court martial conviction is judicial error. She is being smart."
Osborn could issue rulings Friday on whether Hasan can use the 'defense of others argument,' whether he will be granted a three month delay, and what the role of the three 'standby and advisory' lawyers will be.
Geoffrey Corn, a professor at the South Texas School of Law and a former officer in the Army Judge Advocate Corps, says if Osborn rules that the proposed defense is 'not a viable defense theory' and cannot be used, that will also solve the other two issues, because Hasan would not need more time to prepare for the defense, and the military lawyers would not be required to support a defense they feel is unethical.
"As a result, he is just going to stumble through," he said. "Hasan will be disconnected from any trial strategy."
Addicott is confident that Osborn can get the case back on track, but he says she has finally gotten a good look at the strategies Hasan has been using to delay the trial for more than three years.
"She now has to deal directly with Hasan to ensure that he understands each and every activity in the judicial process," he said. "That can slow the process down to a crawl, particularly when Hasan is manipulating the process."
"The Army wants a trial," he said. "Hasan wants a forum."