The Army psychiatrist sometimes took notes while acting as his own attorney, but he mostly looked forward impassively and rarely asked for help.
By Wednesday, the lawyers ordered to help him said they’d had enough — they couldn’t watch him fulfill a death wish.
“It becomes clear his goal is to remove impediments or obstacles to the death penalty and is working toward a death penalty,” his lead standby attorney, Lt. Col. Kris Poppe, told the judge. That strategy, he argued, “is repugnant to defense counsel and contrary to our professional obligations.”
Poppe said he and the other standby lawyers want to take over the case or. if Hasan is allowed to continue on his own, they want their roles minimized so that Hasan couldn’t ask them for help with a strategy they oppose.
Hasan repeatedly objected, telling the judge: “That’s a twist of the facts.”
The exchange prompted the judge, Col. Tara Osborn, to halt the long-delayed trial on only its second day. She must now decide what to do next, knowing that all moves she makes will be scrutinized by a military justice system that has overturned most soldiers’ death sentences in the last three decades.
Hasan faces a possible death sentence if convicted of the 13 counts of premeditated murder and 32 counts of attempted premeditated for the attack on the Texas military post.
“I don’t envy her. She’s on the horns of a dilemma here,” said Richard Rosen, a law professor at Texas Tech University and former military prosecutor who attended the first two days of trial. “I think whatever she does is potentially dangerous, at least from the view of an appellate court.”
Rosen and other experts said that if Osborn allows Poppe and Hasan’s other standby defense attorneys to take over, the judge could be seen as having unfairly denied Hasan’s right to defend himself, a right guaranteed by the Bill of Rights. But if she lets Hasan continue defending himself, she could be depriving him of adequate help from experienced attorneys.
He also noted that it’s extremely rare for defendants to represent themselves in military court.
“They don’t want this case to be reversed on appeal,” Rosen said. “The worst thing that can happen would be to retry the case all over again.”
Giving Poppe a more active role in the case or having him take over the defense could enable Hasan to argue he was denied his right to defend himself, added Victor Hansen, another former military prosecutor who teaches at the New England School of Law.
“At the end of the day, the defendant has the absolute right who’s going to represent him, including deciding to represent himself,” Hansen said Wednesday.
Hasan asked questions of just two witnesses during the first day of trial on Tuesday, and he delivered an opening statement that lasted barely a minute. Hasan rarely looked at Poppe or another standby attorney, Maj. Joseph Marcee, though the two lawyers occasionally whispered among themselves.
An expected confrontation between Hasan and a key witness, retired Staff Sgt. Alonzo Lunsford — whom Hasan shot seven times — never materialized. Hasan declined to cross-examine him.
He even offered to stipulate that a handgun passed around the courtroom was his, only to be told by Osborn that prosecutors must agree beforehand.
On Wednesday, Osborn paused for nearly a half-minute after Hasan objected to Poppe’s assertions about his defense strategy. The judge said she wanted Hasan to explain his objections in writing, but Hasan declined.
But she did not immediately accept Poppe’s arguments, either. When Poppe noted that Hasan didn’t object to any jurors during jury selection, Osborn suggested that Hasan could simply be following a different strategy to ensure he’d have more jurors, knowing that only one juror has to vote against a death sentence for him to be spared.
“A lot of people would think that’s a brilliant strategy,” Osborn told Poppe.
There were likely objections Poppe may have raised, and the lawyer may have asked more questions, Rosen said. However, Hasan declining to cross-examine most witnesses — especially victims who survived the shooting — wasn’t necessarily a bad move, Rosen said.
“I’m not sure ... what he could have done to impugn their testimony without ticking the jury off even more,” Rosen said.
The trial is scheduled to resume Thursday morning. Osborn did not say when she would decide on the motion.