The Hasan Trial: An “Ugly Thing” Takes Center Court

hasan022wayHasan_nidalBelow is my column this morning in USA Today on the trial of Maj. Nidal Hasan. The trial raises the problem of when you have a defendant who states that he is as guilty as sin under our criminal law but who wants to talk about the sin rather than the crime. It is not the first time we have dealt with unhinged self-represented defendants but Hasan is more unsettling than just another fool for a lawyer.

By any measure, the murder trial of Maj. Nidal Hasan, the Army psychiatrist who went on a shooting rampage at Fort Hood in Texas nearly four years ago, is off to a curious start. First, he called himself a “mujahedin” and then promised that “the evidence will clearly show that I am the shooter. The dead bodies will show that war is an ugly thing.”

Hasan, by choosing to represent himself, would seem to be just another case of a man who has a “fool for a lawyer.” However, Hasan is no fool because he is not trying to win his case or even survive. He appears to embrace the status of a terrorist and wants the bodies left in his wake to serve as some murderous montage of faith.

The problem for the court is what to do with a defendant who wants not acquittal but a circus in which he is a ring master. Hasan killed 13 people in front of witnesses while yelling “Allahu Akhbar!” in a blood-soaked spasm of violence. Should he now have a stage to promote his malevolent cause?

Hasan clearly knows that conviction was certain. So he proclaimed his guilt and set out to explain why he doesn’t feel guilty. As the first days of the trial have shown, Hasan “is an ugly thing,” and he intends to put himself on full and horrific display.

Lack skill or sanity

Self-represented defendants come in all types, though they tend to end up with the same result. For example, former congressman James Traficant represented himself in a Racketeer Influenced and Corrupt Organizations Act case in 1983 and won. (He was later convicted after another self-representation.) Serial killer Ted Bundy did so in 1979 and infamous “Red Light Bandit” Caryl Chessman in 1948. Both were convicted.

Most are neither skillful nor sane. Consider Colin Ferguson a good example. Like Hasan, Ferguson had plenty of witnesses to his massacre of six passengers and the wounding of 19 others on the Long Island commuter train in 1993. Ferguson was clearly mad, but under our current definition of insanity he was found legally sane. Once declared sane, he was allowed to be his own lawyer. Victims were forced to be cross-examined by Ferguson as he created a bizarre theory that someone else must have shot them. He was found guilty but not until the end of a trial that proved to be a virtual circus.

Hasan appears to be taking the position that when you are on a falling locomotive, you might as well enjoy the ride. The problem is that the court is not gathered to watch his performance art. The judge already ruled that he could not use a “defense of others” strategy at trial and argue that he was trying to protect Muslims and the Taliban in Afghanistan.

Hasan will find that the court will not allow speeches or tirades, as displayed in the Ferguson trial. That could create open conflict with the judge. The problem is that if Hasan is held in contempt, he will be left without counsel.

On Wednesday, the court-appointed “standby” defense lawyers told the judge they could not defend Hasan because they believed he was trying to be put to death. But the judge ruled on Thursday that the lawyers must continue to offer their assistance.

There are limits

The right to self-representation does not give a defendant a right to control the proceedings. In 2008, the Supreme Court drew a distinction between the competency to stand trial and the competency to be your own lawyer. The justices ruled that courts could stop self-represented defendants who are creating a “spectacle that … is at least as likely to prove humiliating as ennobling.” But what the judge might view to be humiliating is precisely what Hasan views as ennobling.

Hasan will not be able to craft the trial to his own liking. Indeed, Hasan the lawyer could find himself with little to do. Once you are not trying to prove innocence, there is not a lot to do with most witnesses. That has already been shown in his waiver of questioning of early witnesses and the intention to call just two unidentified witnesses.

The result will likely be weird, with prosecutors trying to prove that Hasan is a murderer while Hasan tries to prove that he is a mujahedin.

In the end, they could find themselves in rare agreement. Hasan wants to be a martyr, and the United States would like to help him.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.

August 9, 2013

32 thoughts on “The Hasan Trial: An “Ugly Thing” Takes Center Court”

  1. Anon Aug 9th @1:10;

    I’ve agreed to join a team of Professors, former Asst. U.S. Attorney(s) and others, to help point out the bad faith cover ups going on at UofM.

    Please stay tuned!

    p.s. – Today I re-posted a USA Today article on the Vandy rape case of an unconscious woman. More to come among those lines at UofMich too!

  2. Great idea Vincent!

    (and let it stand for – in our minds – as “full of heavy [s]hit”)

    Concur Otteray, a long, healthy life….

  3. We can do our part and wish him a long–really long, and healthy life. 🙄

  4. after three thousand six hundred and fifty two days with nothing else to read, he might want to branch out just a bit.

  5. I have been at work today so missed a lot. I heard on the radio while ago there were a number of witnesses today, but Hasan declined to cross examine any of them.

    The radio report said some of Hasan’s team of lawyers asked to be removed from the case. One lawyer sat with him today at the defense table as an “adviser.” The lawyers want to be reassigned because he is trying to get the death penalty for himself and they do not want to be a party to that. The judge told them they could not be excused from the case, but they didn’t have to stay in the courtroom. They have to be available if the court needs them. The death penalty would make him a martyr. I am in favor of letting him sit in a small concrete room for the next thirty or forty years.

    What a waste of a medical school education when there is a shortage of doctors.

  6. IMO, Hasan was a programmed “Manchurian Candidate”. A convenient
    tool useful for a domestic covert operation as part of the phony War on Terror. And it worked, too. Still does. Just like 8/11, Aroura, Sandy Hook,
    and the Boston bom bings.

  7. Justice, It’s a military trial, so we need some former or present JAG’s to enlighten us.

  8. Once a defendant has admitted his guilt, what is left for the prosecuted to prove? I am no expert on criminal procedure so I am wondering if the prosecutor can just move for a directed verdict?

  9. He was hoping to save future war crime victims of the Muslim faith from the US Military; clearly a desperate act in a world of unending abuse of Muslims around the world by the US and its allies in crime. What a mad distortion: we’re punishing him by a “court of law,” while we commit crimes against humanity on a grand scale. Where’s The Hague when the world needs it?

  10. @grathuln:
    “where he will have plenty of time to reflect on his actions and read the Koran for himself without some mullah feeding him terrorist propaganda so he might lose the zeal that drove him to do what he did; I’d ensure the only mullahs he was exposed to would be of the “moderate” variety, if any.”

    Always amusing to see how clueless Americans are about jihad. As if the guy was some idiot who was brainwashed by “some mullah”. He has degrees in biochemistry and medicine, is extremely smart and is simply interpreting the Quran literally. Reading that book for another 40 years will not do him any good.

  11. Laser,

    Thanks on that bit of info as well…. I can’t say more, but I do know a little more than the average on the inside of Detriot politics….. Since Coleman A. Young was out of office…. Things got pretty dirty….. But, after years of Young having all the dirt on everyone…. Lansing decided to pay it back as well….. When the governorship changed….

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