A decision on a three-month continuance in the Fort Hood shooting case was delayed until next week and potential jurors were ordered to return home Wednesday as a rift emerged between the accused gunman, Maj. Nidal Hasan, and his standby military attorneys.
Military judge Col. Tara Osborn was scheduled to rule Wednesday on Hasan’s delay request, as well as whether he will be permitted to argue that his shooting was justified because he was defending Afghanistan’s Taliban leadership from unlawful violence. But she gave Hasan additional time to submit motions after both Hasan and prosecutors filed briefs past her deadline and discovered that the Army psychiatrist lacked access to certain research materials. She set the next hearing for Tuesday.
“We have got the cart before the horse here,” Osborn said. “I want confirmation that resources are in place so Maj. Hasan can file a meaningful response.”
Hasan faces the death penalty on 13 counts of premeditated murder and 32 counts of premeditated attempted murder in the 2009 mass shooting.
She also told prosecutors to send potential jurors “back to their duty stations,” in a sign that the delay could last more than just a few days.
Jury selection originally had been slated to start last week, but the court-martial has taken a number of unusual turns since Hasan was granted permission to represent himself earlier this week. As part of that order, Hasan’s military-appointed attorneys were ordered to be available to continue to give Hasan legal advice.
But lead defense attorney Lt. Col. Kris Poppe balked at the judge’s order to help Hasan in assembling a “defense of others” strategy.
Hasan has said he plans to argue he was defending Taliban leadership in Afghanistan by shooting soldiers who were deploying there.
Poppe said conducting legal research to support the strategy would “cross an ethical line that I cannot cross.” Poppe did not clarify those ethical concerns, but military law expert Geoffrey Corn of the South Texas College of Law said he believes disagreement over the “defense of others” strategy likely led to Hasan dismissing attorneys who did not believe there was a legal basis for the strategy.
“Most likely Poppe still thinks there is no factual evidence for this defense, so assisting Hasan to develop the theory would be unethical,” Corn said.
Poppe asked Osborn to further clarify the standby attorneys’ role, saying he has no problem providing Hasan with legal materials, but does not want to provide any legal interpretation or judgment. Poppe asked for time to consult with various state bar associations on what he is ethically able to provide.
Osborn told Poppe that Hasan “is simply asking you to do research like a paralegal or intern would do.” Poppe disagreed, saying that by helping Hasan with his strategy, “I become effectively a shadow attorney.”