Judge in a jam....

[WitchSabrina]

http://www.huffingtonpost.com/2013/08/0 ... d=webmail3

FORT HOOD, Texas — On the first day Maj. Nidal Hasan went on trial in a fight for his life, he claimed responsibility for the 2009 shooting rampage at Fort Hood. He posed no questions to most witnesses and rarely spoke. On one of the few times he did talk, it was to get on the record that the alleged murder weapon was his, even though no one had asked.

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.

[SGOS]

As I understand it, you have the right to an attorney, but you are not required to have one.  If the old adage is true that anyone who represents himself in court has a fool for an attorney, then so be it.  But even if a licensed lawyer represents you, you may still have a fool for an attorney.

I get the feeling, that someone not directly involved in the defense, is trying to get a not guilty verdict on the grounds that Hasan has a fool for an attorney.  Where would shit like that end?  Let's say you hire an attorney, and you lose the case.  Why not demand that the case be overturned on the grounds that you had a fool for an attorney then too?  After all, he must have been a fool, because he lost the case.

Once a person is judged competent to stand trial and then dismisses his right to an attorney, the defense lawyers need to butt out.  I don't get this "not having an attorney, but then having a standby attorney," either.  Is this some kind of "having your cake and eating it too?"

I think the judge should gag these self appointed wannabe defense attorneys.  They don't know when to stop pleading.

[stromboli]

Electing to not have an attorney is actually a good strategy. The judge has to take extra steps to make sure your rights under trial are upheld. Failing even one step, the right to appeal becomes automatic. In the case of Hasan, he is an intelligent man and may be using the strategy to lean any decision towards violation of his religious beliefs, or other points of jurisprudence.

[SGOS]

Electing to not have an attorney is actually a good strategy. The judge has to take extra steps to make sure your rights under trial are upheld. Failing even one step, the right to appeal becomes automatic. In the case of Hasan, he is an intelligent man and may be using the strategy to lean any decision towards violation of his religious beliefs, or other points of jurisprudence.

I wonder if this strategy has been used before?  I also wonder why an appeal isn't automatic when an attorney fails to object when his client's rights are violated.  Why should all of this be heaped on the judge, or more correctly, why is the same responsibility not required of an attorney?

[Colanth]

I wonder if this strategy has been used before?

If you are able to choose the attorney you want, you can't later claim that you were denied counsel.  If the judge doesn't allow you your choice, you can.  (Assuming that your choice meets the legal requirements.)  You can't argue that your attorney wasn't experienced enough, or not in the right area, to represent you - you chose him.  You CAN, however, argue that his representation wasn't up to legal standards (incompetent council or inadequate defense).

I also wonder why an appeal isn't automatic when an attorney fails to object when his client's rights are violated.

For the same reason that an appeal isn't automatic if the defense fails to raise any other point.  Appeals have to be made by parties that have standing, they're not automatic.

Why should all of this be heaped on the judge, or more correctly, why is the same responsibility not required of an attorney?

The responsibility of ruling on the attorneys' motion always lies with the judge.  Hasan chose to represent himself - that's always allowed, as long as the defendant is legally competent (fit to stand trial).  In all but the most trivial cases, the court appoints an attorney to make sure that the defendant's rights are maintained.  In this case, the attorneys are asking to either be allowed to be the actual attorneys in the case (deciding on what to ask which witness, etc.) or be relieved of responsibility.  Their viewpoint is that as things stand they're being required to sit by and watch (and give Hasan assistance) while Hasan makes sure that he gets the death penalty - which they're opposed to.

[the_antithesis]

If the old adage is true that anyone who represents himself in court has a fool for an attorney, then so be it.

I believe the adage is "anyone who represents themselves in court has a fool for a client."

[Solitary]

In a normal everyday court of your peers, if you are guilty, it is good strategy to defend yourself, and it has been done successfully. I don't think it is in a military court of judges. Solitary

[LikelyToBreak]

Our justice system sucks.  He killed those people back in 2009 and he is just not being tried.  I'm against the death penalty, mostly due to prosecutorial misconduct, but if someone deserves it, its' this nut-job.  Damn, but we really need new ways to get justice in this country.   :x

[stromboli]

Under Sharia Law:

Actual methods of capital punishment vary from place to place. In some Muslim countries, methods have included beheading, hanging, stoning, and firing squad. Executions are held publicly, to serve as warnings to would-be criminals.

Stoning. I could work with that.

[Colanth]

In a normal everyday court of your peers, if you are guilty, it is good strategy to defend yourself, and it has been done successfully. I don't think it is in a military court of judges. Solitary

There's a judge, there's a jury (of his peers - military personnel) and there are attorneys, the same as in a civilian court.

It's not a good idea to represent yourself in any criminal proceeding, but especially not in a capital case.

[WitchSabrina]

Electing to not have an attorney is actually a good strategy. The judge has to take extra steps to make sure your rights under trial are upheld. Failing even one step, the right to appeal becomes automatic. In the case of Hasan, he is an intelligent man and may be using the strategy to lean any decision towards violation of his religious beliefs, or other points of jurisprudence.

I wonder if this strategy has been used before?  I also wonder why an appeal isn't automatic when an attorney fails to object when his client's rights are violated.  Why should all of this be heaped on the judge, or more correctly, why is the same responsibility not required of an attorney?

My thoughts exactly.  I find it odd that the judge is the one in hot water.  (?)