Below 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