Sparks fly again over attorneys' “ethical dillemma”

Television artist Brigitte Woosley puts the finishing touches on a sketch of Lt. Col.
 Kim Poppe asking for approval for he and his two colleagues to withdraw

Ft. Hood – The former lead attorney in the Hasan murder case requested clearance for he and his two colleagues to withdraw on ethical and moral grounds.

He objected on ethical and moral grounds, saying that an accused terrorist who murdered 13 persons in cold blood – and admits it – is being given the power to interpret rules of conduct and the law which an Army lawyer must follow.

Spectators at a genereral court martial at this Army outpost then witnessed a rare exchange of angry words between two high ranking officers as the third day of trial opened, then recessed again within minutes.

During a closed hearing yesterday afternoon, Wednesday, August 7, the second day of the trial, the military judge hearing the case against Maj. Nidal Malik Hasan for mass murder and attempted murder had rejected a motion for modification of the role of his former defense team of three Army attorneys who have been relegated to standby status.

Maj. Hasan told the judge that Lt. Col. Kim Poppe had something further to say before the Court moved on to other issues.

“Your honor, we believe your order is forcing us to abandon our professional standards of conduct,” the Colonel said. He requested a stay of her order rejecting his request because, he said, “Maj. Hasan was in fact eliminating obstacles to a penalty of death,” in the opinion of the team of three defense lawyers Maj. Hasan fired in June.

"Major Hasan is competent to represent himself. Major Hasan chooses his strategy, not standby counsel," said the judge. "If you follow standby counsel's argument, then no standby counsel could fulfill the role, and that's simply not the case." 

“We're talking about what you have ordered us to do that prevents us from saving this man from the death penalty...We should withdraw, and that's what we're requesting,” said Col. Poppe.

“Colonel Poppe, you have anything in writing from your state bar that shows how this order violates ethical standards?”

The Colonel explained that state bar decisions require as long as 90 to 120 days to promulgate.

The judge repeated that she has asked the question numerous times and received no answer.

“Your honor, you have received the answer; you are not willing to accept the answer,” Col. Poppe replied.

When he uttered those words, the press gallery in a remote digital overflow courtroom gasped. It is unheard of to see learned counsel argue in those terms in any court.

Col. Osborn slapped down her ball point pen, and in an exasperted tone, she replied, “All right, Col. Poppe, I'm going to make it easy for you. I've given you an order; you are to do it, and if you do, you have no ethical responsibility.”

Col. Poppe immediately announced that he and his colleagues will seek a ruling from a higher military court on the matter.

When a few minutes later a proposed order was presented for the approval of the defendant, a non-attorney who is defending himself, he further objected, saying “Your honor,you are giving a pro se defendant the power to interpreet what is appropriate. He will have to decide if what you are ordering me to do is ethical.”

The judge agreed to reconsider the language of her ruling.

At that point, the lead prosecutor, Col. Michael Mulligan, interjected, saying he could not understand why the order to continue as standby counsel causes such moral and ethical issues.

The jurors were then admitted to the courtroom, and the prosecution called its first witness for the day.