Tuesday, June 11, 2013

Hasan trial judge faces revolt of defense lawyers

Ft. Hood - The accused murderer who acted in the name of Islamic jihad is showing clear signs of a strategy of creating confusion in the general court martial proceedings in which he is defending himself against multiple capital murder charges.

Army lawyers ordered to serve as standby counsel for accused murderer Maj. Abu Nidal Malik Hasan defied Col. Tara Osborn today in a tense hearing that lasted less than an hour.

The Colonel resorted to raising her voice in frustration more than once.

Lead Counsel Lt. Col. Poppe told the judge that she must either allow he and his colleagues a chance to file a seperate statement of facts - under seal or in her chambers - or entertain a motion to withdraw their services.

The judge had ordered them to submit a proffer of legal opinions from the licensing authorities or state bar associations in which they are licensed six days previously. They refused to comply.

She demurred, saying “This is a public trial. We will not have closed sessions.”

Maj. Hasan told Col. Osborn that his standby counsel had refused to give him legal advice as to how to proceed with a memorandum of law in support of his motion for a 3-month delay in order to prepare a new witness list and the preparation of a “defense of others” strategy under the Army’s Rules of Courts Martial.

His argument, which was presented last week in open court, is that he was acting to defend the lives of the Mullah Omar and other leaders of the Taliban in the Emirate of Afghaistan when he opened fire on Nov. 5, 2009, murdering 13 unarmed servicemen at the Soldier Readiness Center and wounding 32 others. It is an affirmative defense to the charge of premeditated murder.

At the time, Judge Osborn reacted with incredulity, exclaiming, “Wait a minute. Let me get this straight. These people were in Afghanistan, and the people you attacked were here, at Ft. Hood?”

He is charged with 13 specifications of premeditated murder and 32 charges of premeditated attempted murder.

The judge previously granted his motion to defend himself, a right he to which he is entitled under the terms of a U.S. Supreme Court holding from a 1975 case. He chose to follow her recommendation to retain his three Army lawyers as standby counsel.

She gave him six days in which to prepare his statement of facts - which is called a “proffer” - and ordered the defense counselors do whatever he required to assist him.

The lawyers reacted in protest.

They had a paralegal give him the assistance he requested.

When the judge asked him if they had given him adequate assistance, the Major replied, “No, ma’am.”

Exasperated, the judge replied, “I directed standby counsel to either provide Major Hasan the assistance, or provide me something in wiritng from their state bar...Instead, what I got was an e-mail from Col. Poppe that said the assistance provided by the paralegal was adequate.”

As she explained her holding to the Major, she snapped at Col. Poppe when he stood to be recognized.

“Colonel Poppe, I will hear from you in an minute if Major Hasan wants me to hear from you. You may sit down.”

She told the Major, “I have said before that an accused has no constitutional right to the assitance of standby counsel...You have the right to control your defense. The role of standby counsel is to do what you wish as long as it does not interfere with your right to defend yourself.”

She added, more than once, “You don’t know what you don’t know,” and said she finds no reason why the lawyers can’t give the Major advice.

Col. Poppe immediately requested a separate closed session under Article 39-A of the Uniform Code of Military Justice in order to examine the “facts of the request” he has received from Maj. Hasan.

He alleged he and his colleagues have been requested to “act unethically.”

Instead, the judge ordered him to file a seperate statment of the facts under seal for her to consider in her chambers no later than noon on Wednes, June 12.

A subsequent hearing on other motions, including the motion for continuance for the Major to prepare his “defense of others” strategy is yet to be determined.

Watch these columns for an update on the matter.

- The Legendary

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