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. Gene H;

    Traficant was a fantastic statesmen; because he spoke truly from the heart.

    Now, please bare in mind, I do concur that he was “unbridled” and needed an adviser to reign him in. As a former RWNJ myself, who was liberated by a guy at the orange realm (Meteor Blades of DK) – I can tell you that Traficant succeeded in kicking his own arse. You can’t go around and blame groups as a whole; because it is incongruous.

    I’m an America yid who doesn’t approve of the battles in Israel and our country being an Empire bully. I’m doing what I can to fight tyranny, cronyism and corruption – where I can.

    Thus, for others to say in other countries, All Americans are Empire types – would be bogus in my case.

    Traficant was full of himself – OFTEN.

    But he was PURE and one heck of a statesmen.

    We are worse off – being without him.

  2. Eventually Hasan will be done with his antics and then he will be convicted and put away. But yes, he should be kept on a short leash.

  3. Anonymous;

    Congressman Conyers held a hearing on Obamacare and no one showed up. A brother of a local station manager in Los Angeles paid his own expense and flew to Washington, D.C., to film the hearing.

    When Congressman Conyers tried to make stuff happen, they buried his wife and son. Who “did” do stupid things; but could have had a much better defense attorney. (Actually, Congressman Conyers wife hired Rick Convertino after already being led wrong by her first counsel).

    Department of Justice tried to railroad Convertino with the same guy (Craig Morford). Fortunately, Rick knew better than to represent himself.

    I’m able to tell you from personal experience (though I’m on the prosecution side of things in my case versus Romney) that being “pro se” SUCKS!

    One is too emotionally tied to their cause, to be most proficient.

    Traficant knew they had no case, so he believed (after winning the 1st time as “pro se”) that he could do it again. Demonstrating that Traficant clearly needed advice of counsel, when the Judge kept saying to JT “you know you can’t appeal this, when you represent yourself” – JT responded “yeah, I know”.

    As Professor Turley can tell you – “T’aint so”!

    Especially with fraud on the court by an officer of the court who not only suborned perjury, he was criminally negligent in utilizing extortion.

    Traficant saw – WAY IN ADVANCE – what deals were being made with China (there’s some blogs out about Chicom and such in Michigan and the University of Michigan being involved in very bad stuff).

  4. Interesting story. I see it a just another example of the system working. He’s found fit to stand trial. He’s not legally insane, he just thinks America is evil (lot’s of sane company on that opinion). Most of the defendant’s nonsense was in his opening statement. The judge has ruled that the “necessity” defense is not allowed. The prosecution puts it’s witnesses on. Stand by counsel is appointed in the event the defendant completely ignores the judge. Pretty standard angry pro se defendant. This just happens to be a much more serious case than most. The public doesn’t get to see the “three strikes” defendant on his 5th robbery case firing his public defender (because he’s facing mandatory life) and pulling the same sh*t as Hassan. This happens all the time.

  5. laserhaas,

    I kinda liked Traficant, but come on man . . . that thing on his head could teach Trump’s “hair” a lesson.

    And on point, “[t]he right to self-representation does not give a defendant a right to control the proceedings” says it all. This guy isn’t interested in legal defense. He’s interested in sideshow spectacle.

  6. Laser,

    Thanks for that bit of info…. I always thought there was more to the story…… This also leads to the credence to Lewis back peddling….. And conyers wife…. There was a little more going on in the city of Detroit that they did not hot her with…..

    In the instant case…. He will be executed… He knows it…. It’s just buying time…. If he had been in active combat he would have been shot by not so friendly fire…..

  7. What he wears SIR, is a badge of honor for stating how he felt, regardless of the consequences. James Traficant was bright enough to see that hi ups were selling our country out to China and speak out about it; but then idiotic enough to believe he would get a “fair” trial after doing so.

    In an honorable, public, hearing, with ALL the evidence permitted to be viewed; not only would James Traficant be 100% vindicate – the system and those who perverted it, would be the one’s crucified!

  8. I think the judge should give Mr. Hasan a very short leash or he could turn the trial into a circus. There is suicide by cop and in this case, suicide by trial.

  9. This whole disgusting turn of events is the product of the self-serving polecats who over the decades have mangled our justice system to the point of it’s having become, in many, many cases like these, far worse than worthless.

    I’m left with utter disgust for those individuals responsible for extracting virtually all the teeth from criminal justice and promoting, to it’s former place of respect and honor, desperation driven vigilantism.

  10. Sorry Prof JT, you hit a raw nerve and must eat crow.

    You picked a very poor example!

    Professor Turley – I adore you, your staff, your ethics and your forum’s content. PLEASE don’t make me change my mind?

    James Traficant is a great American, a Patriot and man of honor whom I would lay my life down to defend. He has more honor/integrity in his pee than you do in pompous vigor.

    He was framed over a Rent a Car scam by Carafo and Craig Morford.

    Traficant’s sins (and I’m a yid by the way) – was calling Janet Reno a traitor, with the badge of honor of stopping the blood lust execution of Demajanjuk, whom many wanted to believe was Ivan the Terrible. The execution was not halted because of James Traficant; it was stopped because the trial was a railroad with surreptitious evidence. James Traficant put himself at risk against the entire Jewish world, for the sake of justice.

    James Traficant was railroaded in his second trial by U.S. Attorney Craig Morford who suborned perjury by Mr. Okolo (the owner of the rent-a-car) and then deported the man who grew a conscience and would have become an exonerating witness. Morford also suborned Perjury via Rick Detore, who confessed this on CSPAN.


  11. my problem is the Army considers this “workplace violence” not an act of terror. Despicable man and dishonorable Army.

  12. ‘The death penalty is too good for him. For him it would be for more of a punishment to keep him alive until he dies unremarkably from old age.”

    I agree with Grathuln. I feel that way about the death penalty in general. Life without parole is a far more fitting punishment for murder.

  13. @Hank – In capital cases, a defendant is not permitted to plead guilty.

  14. I was wondering why it is that Hasan is alllowed to wear a beard and flout Army regulations during his trial. I saw that a judge had stopped the Army from using force to shave him, and I think that is outrageous. It is time for him to at last be forced to comply with the UCMJ, and what is the legal theory that exempts him from having that done? If the US taxpayer has to pay him over a quarter of a million dollars, I think that the very least that should be required is that he be forced to follow the rules the rest of the military have to follow.

    If and when he is executed, I have a suggestion as to what should be done with his corpse. After he is hopefully hung by the neck, they should put his body on a US Navy ship, and put him in the rest of the garbage and throw his body overboard. I am against any recognition that he is worthy of any consideration.

  15. The death penalty is too good for him. For him it would be for more of a punishment to keep him alive until he dies unremarkably from old age. He might come to understand his actions for the misguided evil they were and then he will have to live with the guilt. He might come to understand there won’t be any virgins waiting for him when he finally croaks too.

    The death penalty is only a punishment when the prisoner doesn’t want it. This guy clearly does so deny him it, his real punishment will be a long uneventful life in prison 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.

  16. So why are we having a trial? He has admitted his guilt. Shouldn’t we save everyone a lot of grief and just move to sentencing?

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