The request was denied and the judge told the jurors to prepare for their deliberations on Wednesday. But the lawyers' request touched on some of the legal questions raised by Major Hasan's inaction in the courtroom. One of them is the conflict between his right to self-representation and the requirement that death penalty cases be given extra procedural protections.
The court-martial of Major Hasan has entered its most critical phase, when the jury of 13 Army officers determines whether to sentence him to life in prison or death by lethal injection. He was found guilty Friday of killing 13 people and wounding or shooting at 32 others, nearly all of them unarmed soldiers, in the worst mass murder at a military installation in American history.
One argument the military lawyers were expected to make, had they been permitted to proceed, was that a death sentence for Major Hasan would put soldiers' lives at risk by giving Islamic extremists a new symbol to avenge and exploit.
Major Hasan, 42, has been representing himself for months, and has made few attempts since the trial started Aug. 6 to present a defense. His former Army lawyers — and his own statements and behavior in and out of court — have suggested he wants a death sentence. He has said he believes he will become a martyr if he dies by lethal injection, because he viewed the deploying troops he killed as enemies of Islam.
On Tuesday, after Major Hasan failed to present any evidence, call any witnesses or make a statement as part of his sentencing defense, his former lead Army lawyer, Lt. Col. Kris R. Poppe, asked the judge to effectively allow his former defense team or another group of lawyers to make his case on his behalf. They submitted their motion over Major Hasan's objections.
Typically in the sentencing phase of capital punishment trials, prosecutors make a case for death and the defense makes a case for life. In Major Hasan's sentencing, the jury essentially heard no argument for life, but heard — in powerful, heartbreaking detail — the prosecutors' case for death. The Army, for two days of emotional testimony on Monday and Tuesday, called 20 victims and relatives of those he killed. One widow said she kept her husband's cellphone activated for years after his death so she could call his number to hear his voice, and another said she had twice attempted suicide.
"If no one is making a case for life, there is only death," Colonel Poppe told the judge on Tuesday in a Fort Hood courtroom.
The judge, Col. Tara A. Osborn, said that she could not compel Major Hasan to make a sentencing case, citing other state and federal court cases and his Sixth Amendment right to self-representation. "Major Hasan," she told Colonel Poppe, "is the captain of his own ship."
If the judge had granted Colonel Poppe's request, he would have put on the sentencing case that the former defense team had been unable to present after Major Hasan released them and began representing himself. Their goal would have been to persuade just one of the 13 Army jurors to spare Major Hasan's life since the jury must vote unanimously for a death sentence. Barring unanimity, Major Hasan will receive a sentence of life in prison.
Major Hasan has been an unusual defendant throughout his trial. He admitted to the jury in his opening statement that he was the gunman. During jury selection and throughout the testimony of nearly 90 witnesses called by Army prosecutors during the first phase of the trial, he asked few questions. He presented no witnesses, admitted one exhibit as evidence and made no closing argument.
On Tuesday, after the government rested its sentencing case, Major Hasan told the judge, "The defense rests."
Two defense consultants — a defense mitigation specialist and a religious conversion expert — sat in the courtroom, as required by the judge, in case Major Hasan changed his mind about calling them to testify. He never did.
After the judge allowed Major Hasan to represent himself, she told his former Army lawyers to remain his standby counsel. They offer him procedural guidance in navigating the military court system, but cannot supply him with legal advice. They remain by his side in case Major Hasan or the judge seeks their return.
The odd role — to sit by his former client while prohibited from actually representing him, and to watch him purposefully inch closer to a death sentence — has posed an ethical dilemma for Colonel Poppe, 50, a lawyer from small-town Ohio with more than 30 years of military service who has been working on Major Hasan's case since May 2010. He has argued in court that assisting Major Hasan in any capacity was helping him reach his goal of a death sentence, and that such an arrangement violated his and the two other former lawyers' professional and ethical obligations. He asked the judge to limit their role, but the judge ordered them to remain as standby counsel.
