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Fort Hood trial halted after defense attorneys say Hasan seeking death penalty

Published: Thursday, Aug. 8, 2013 10:08 a.m. CST

FORT HOOD, Texas — The court-martial of Maj. Nidal Hasan ground to a halt Wednesday after the Army psychiatrist's military-appointed attorneys accused him of "acting in concert" with prosecutors to secure a death penalty, prompting the military judge to clear the courtroom and postpone testimony.

The long-awaited trial had proceeded for just a day before it was at least temporarily thrown into chaos by a defense motion that legal experts say could have potentially caused a mistrial.

The trial is scheduled to resume Thursday.

Hasan's standby military attorneys argued that Hasan's courtroom behavior shows he is seeking a death sentence and that assisting him, even in a reserve role, would be "repugnant" and cause them to violate ethical codes.

Hasan dismissed his military attorneys before the trial so that he could represent himself, but military judge Col. Tara Osborn ordered the three officers to remain in a standby role in case Hasan changed his mind. At that time they asked to be released from the case, arguing that Hasan's preferred defense strategy, which consisted of arguing he was protecting the Taliban by shooting American soldiers, would lead them to an "ethical line" they couldn't cross.

Osborn, who prohibited the strategy, didn't let them leave, instead ordering them to assist Hasan with legal procedure.

Former lead attorney Lt. Kris Poppe said Hasan's courtroom behavior has convinced him Hasan is pushing for a death sentence. During jury selection, Hasan made no attempt to retain potential jurors with moral reservations about the death penalty or to remove jurors who admitted to unfavorable opinions of Muslims. And, in his opening statement Tuesday, Hasan told jurors that the evidence would prove that he was the shooter.

Hasan faces the death penalty on 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the Nov. 5, 2009, mass shooting at a Fort Hood medical processing building. Victims of the shooting had been expected to continue testifying Wednesday before court was abruptly called into recess.

"It all became crystallized (Tuesday) and forced us into filing this motion last night after discussing our concerns with Maj. Hasan," Poppe said in a hearing held outside the presence of jurors.

Poppe asked that the three attorneys be placed on "true standby status" and not be forced to help Hasan with day-to-day questions of procedure. He said the attorneys remain ready to resume their previous lead roles if Hasan "decides he wants to fight the death penalty." Hasan called Poppe's statement that he is rushing toward a death sentence a "twist of the facts" and told the judge he wanted to clarify his position in open court. Before he could do so, Osborn interrupted him and cleared the courtroom to hold a closed session outside the presence of prosecutors.

"I've never seen anything like it," said Texas Tech University military law professor Rick Rosen, who observed the hearing. "The judge is doing everything she can to protect the record in the case and make sure there is no basis to overturn the verdict." After about a half-hour behind closed doors, court was canceled for the day. Officials didn't reveal if any agreement had been reached among the attorneys, Hasan and Osborn.

Osborn faces two issues, legal experts said. The first is resolving the question of the attorneys' roles. The second is dealing with a motion that she said might have included confidential, privileged information that shouldn't have been shared with prosecutors.

Chief prosecutor Col. Mike Mulligan assured Osborn that no one on his staff opened the materials, which he returned Wednesday morning.

"I think there was some potential for a mistrial with the release of privileged information, but prosecutors didn't look at the (documents)," Rosen said. "I'm not certain what (defense attorneys) were thinking."

Geoffrey Corn, military law expert at South Texas College of Law, said Poppe might not have believed the documents included in the motion, which referenced Hasan's dealings with a jury selection expert, were privileged. And the longtime military attorney, Corn said, might feel he has been put in an impossible situation by being required to assist a defendant he thinks is trying to accelerate his own death.

"He doesn't want to be associated with this train wreck," Corn said. "He's trying to expose what he sees as a moral flaw in the legal rules." But Corn said he doubts Osborn will let Poppe and his fellow attorneys, Maj. Joseph Marcee and Lt. Col. Christopher Martin, leave the case. "If she lets him off, what happens in two weeks when Hasan changes his mind?" he said, adding that such a scenario would likely lead to a mistrial and another lengthy delay.

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©2013 Austin American-Statesman, Texas

Distributed by MCT Information Services

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