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Wednesday, August 07, 2013

Is Maj. Nidal Hasan cooperating with military prosecutors in an attempt to achieve "suicide by court-martial"?

Law enforcement officials are familiar with the typical pattern of "suicide by cop." But if accurate, this news article (which the Austin American-Stateman continues to update since I first saw it) suggests that Maj. Nidal Hasan may be trying to commit jihadi suicide by court-martial:

Maj. Nidal Hasan’s standby defense attorneys said Tuesday morning that they believe the accused Fort Hood shooter is "effectively acting in concert with prosecutors in achieving a death sentence."

In a motion filed late last night, Lt. Col. Kris Poppe said that Hasan’s behavior during jury selection, when he made no effort to keep potential jurors who questioned the death penalty, as well as his opening statement in which he took responsibility for the shootings show that he is trying to "remove impediments and obstacles to the death penalty."

Poppe and the two other military appointed defense lawyers asked to be removed from the case, but said they also stand ready to represent Hasan "if he decides he wants to fight the death penalty." ...

In American law (including military law), the right to defend oneself — even when that's a stupid and even suicidal path to choose — is guaranteed under the Constitution. Hasan has invoked that right and has persuaded the presiding judge that he's competent to make that decision, so he's defending himself.

unidentified soldier at memorial to the victims of the Fort Hood massacreBut as would also be nearly universal even in the civilian criminal justice system, the judge appointed "standby counsel" who would observe the proceedings and continue to counsel with Hasan privately to whatever extent Hasan permits that. The notion is that their private advice — which will always almost certainly be, "You're screwing this up, you're going to get yourself executed, let me please take over as your advocate in court to try to save your life!" — might eventually be heeded. And then the standby counsel is as prepared as practicable to immediately step in as the defendant's active advocate(s).

My guess is that what's happening today is that the presiding judge, Col. Tara Osborn, is going to re-visit the subject of Hasan's competency to make the decision to continue to represent himself. If only for purposes of future appeals, the judge will want to make a record of having done that (although the jurors won't know anything about it).

This same sort of thing has happened in civilian death penalty cases before — albeit not usually with the same jihadi motivations that Hasan has. But neither the civilian or military justice systems permit defendants to "game" them by first insisting on self-representation and then later insisting that they should get a new trial because their trial counsel (i.e., they themselves acting as their own lawyers) rendered constitutionally ineffective assistance. Basically, if the record shows that the choice of self-representation was freely made by someone legally competent to make it, both trial and appellate courts will let the consequences of that choice lead in their natural direction — even though the result at least superficially looks like state-assisted suicide.

It's also interesting that the standby counsel are asking permission to withdraw from that role. That's their putting on record their recognition that Hasan is ignoring everything they tell him, and that he's making it impossible for them to do their job effectively, but they will leave to the judge's decision whether some replacement might be able to do better. That's the proper and ethical thing for them to have done.

My guess is that the judge will probably reconfirm her earlier ruling that Hasan is mentally competent to make the decision to represent himself. The judge will repeat, on the record, her previous cautions and admonitions and get Hasan to reconfirm his decision on the record — again, outside the jury's presence. The judge will then probably politely deny the standby counsel's suggestion that they be replaced and tell them to keep standing by and doing their best to make themselves relevant.

I am content in all of this. The wheels of justice are slow but grind exceedingly fine. And in this battlefield in the war on terror — and that's exactly how Hasan himself sees the courtroom he's in — the terrorist is once again eager to be killed. Unlike the battlefield soldier, the military judge and jurors presiding over Hasan's trial aren't eager to kill him, but rather to see justice done and be seen to be done. But the end result is going to be the same.

Posted by Beldar at 12:36 PM in Global War on Terror, Law (2013) | Permalink

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Comments

(1) ColoComment made the following comment | Aug 8, 2013 1:12:02 PM | Permalink

Kabuki. If UCMJ permitted him to plead to a death penalty offense, we'd not have to go through this farce. But it does not, and so we do.

This is an extraordinary case where the accused is guilty of premeditated murder(s) beyond ANY doubt. He wants to die. We should (and will, I hope) accommodate him. It's just too bad that we have to waste all these resources on what is, essentially, a show trial of a guilty man.

(2) Beldar made the following comment | Aug 8, 2013 2:21:13 PM | Permalink

ColoComment (#1), thanks for your comment, with which I agree except for your use of the terms "farce" and "show trial."

There are elements of farce associated with Maj. Nidal's attempts to defend himself, but that is the only farce in the proceedings. The proceedings -- the conduct of the judge, the prosecutors, jurors, witnesses, and even standby defense counsel -- are being held in utter solemnity and with the most strict reverence for due process. That is absolutely appropriate and, indeed, essential.

This won't be a show trial. It will be a real trial, highly publicized, in which justice is done and seen to be done. A show trial is a farce, a mockery of justice whose outcome is driven by politics instead of by evidence of guilt or innocence. This trial will instead be driven by the evidence, which is overwhelming, and which will establish guilt beyond a reasonable doubt and, indeed, beyond any possible doubt.

The Soviet Union was famous for show trials, but even there, there were sometimes real criminals.

America's enemies will try to claim that this is a "show trial," but it's not and we ought not assist them in that distortion.

(3) ColoComment made the following comment | Aug 8, 2013 4:39:43 PM | Permalink

I amicably stand corrected w/r/t the terms used (and it's nice to see you back writing -- I have missed your cogent interpretations of current events).

Yes, I know the history of Soviet "show trials." And, yes, this trial is different, inasmuch as Major Nidal is most emphatically not an innocent accused of a politically-motivated faux charge.

I simply meant to suggest that Nidal's trial was a public performance, staged according to a [UCMJ] script, with the actors entering & exiting the stage as directed, but with the final scene already known to the audience. That conviction is inevitable (barring a Perry Mason appearance in the last gasp of the defense, hustling Nidal's previously-unknown identical [and guilty] twin into the courtroom :-) ) does not render any of it invalid. To the contrary, as you correct me, it underscores that the U.S. military justice system accords him all of the procedural protections available under the Code (as opposed to simply standing him up against a wall & shooting him, given the undeniable evidence of his guilt.)

I am curious. Which sentence do you think Nidal would find more punishing: a lifetime served in a wheelchair in a prison, or death?

(4) Beldar made the following comment | Aug 8, 2013 9:08:12 PM | Permalink

In the old west, at least as recreated by Hollywood, there were some people of whom it was said, "Killin's too good for him." But I think you're right about what Maj. Nidal would likely prefer, since he seems to be insisting that yes indeed, killin' is just fine with him.

If Maj. Nidal is insistent on becoming a martyr, we're necessarily going to give him some degree of satisfaction by accommodating part of that process — the killing part. But from that perverse point of view, what we're doing to him now is also "inflicting" upon him all of our western due process. And we're going to continue with that whether he likes it or wants it or appreciates it. We give him due process and a fair trial because that's the best way we can frustrate the rest of his martyrdom scheme. That's what I mean by justice both being done, and being seen to be done.

If retribution were the only goal of justice, a society might do far worse than the humane confinement, decent food and medical care, and eventual lethal injection that Maj. Nidal will almost certainly receive. I deplore modern SCOTUS Eighth Amendment precedent, which consists, best I can tell, of sticking a judicial finger into the national wind to guess what "cruel and unusual punishment" means on any given day; but I'm not arguing that we should go back to the rack or to drawing and quartering.

Maj. Nidal's death by lethal injection will be infinitely more merciful and painless than were his victims' deaths. But that is almost always true of modern capital punishment. Of course, capital punishment opponents insist that there's no such thing as a "humane" execution. But I don't agree with that. To the contrary, I generally approve of the way capital punishment is administered here in Texas, where no one who gets the needle ends up becoming much of a martyr; they die in somber proceedings that acknowledge the momentousness of the occasion, but usually without even momentary celebrity, and almost always without any lasting celebrity. And that's what I mean by the wheels of justice grinding fine: Nidal will be returned to inanimate matter, metaphorical and perhaps literal dust. No one except his fellow deluded jihadis will think him a martyr, and even many capital punishment foes will swallow hard before condemning his execution.

(5) ColoComment made the following comment | Aug 9, 2013 3:19:24 PM | Permalink

Not to unduly take up your time by prolonging this conversation, but I do find your thoughts on these matters well-considered and food for further pondering. So, I continue:

I find myself torn w/r/t the death penalty. (But, yes, if ever there were a justifiable, beyond doubt, execution, this one would be it.)

I was convinced of the death sentence's righteousness by a crime committed some long years ago in California. A man gave a girl hitchhiker a ride and raped her, cut off her arms at mid-forearm, and left her to die in the desert (she survived, he was convicted & sent to prison, released, and then was killed during the commission of a further crime - I believe t'was rape and murder). I don't know if you recall that one.

That one crime convinced me that some individuals commit acts that are so egregiously contra-humanity, so devoid of human feeling, that it's right, just and proper for society to deem that person to have forfeited any claim on humanity's social protections and to kill him.

Unfortunately, with the advent of DNA testing and the discoveries of multiple, nay many, individuals sentenced to death who were proven, via DNA, NOT to to have committed that crime, that while I still believe that the death sentence may be justified in certain cases, the PROCESS is faulty, and therefore I cannot support it as currently followed.

Except that my conscience would be clear if it were I personally who injected the good major. Indeed, I'd be smiling as I pushed the plunger.

(6) Gregory Koster made the following comment | Aug 11, 2013 1:15:11 PM | Permalink

Dear Mr Dyer: I've tried for some time to respond to your post, but was having a lot of trouble with a) length and b) even-temper. Fortunately Mark Steyn has done so, and I'll stand by what he says. His article ranges wider than yours does, but addresses your points effectively.

Sincerely yours,
Gregory KIoster

(7) Beldar made the following comment | Aug 11, 2013 2:19:27 PM | Permalink

Mr. Koster, thanks for your comment (#6). I've read Steyn's piece, and it's filled with his usual insights and humor. But I don't see anything in it that is inconsistent with what I've written here.

You perhaps see Steyn's arguments as supportive of a broader critique of the American legal system and the Rule of Law. He's often dismissive of those things, and he's more than occasionally wrong in his dismissiveness.

I'm not defending everything the Obama Administration has done or said about this particular case, nor are my comments anything specifically to do with this or any other administration. My focus instead in this post is on what the presiding judge, prosecutors, and standby counsel were doing in their respective roles in this particular trial, and how their conduct (not their Commander-in-Chief's) will be perceived in America and abroad, and how it will eventually be perceived by future generations.

Nevertheless, I think you and Mr. Steyn both lack an effective riposte to Sir Thomas More's question (as fictionally but probably accurately imagined in "A Man for All Seasons"):

"What would you do? Cut a great road through the law to get after the Devil? ... And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man's laws, not God's, and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety's sake!

You're not going to persuade me to blow off due process and the Rule of Law, my friend. I agree with Sir Thomas.

(8) Beldar made the following comment | Aug 11, 2013 2:43:44 PM | Permalink

When I say that I don't see anything in Steyn's piece that's inconsistent with what I'm saying here, I mean this:

Steyn ridicules everything about this UCMJ prosecution. But he doesn't propose anything better or different.

When and if he has anything specific to suggest, I'm happy to discuss those specifics. But the military lawyers in this case don't have the luxury of waiting for Mr. Steyn to invent a better system, and indeed one of his most pointed criticisms is that they aren't moving at a speed which would suit him.

He's a very eloquent fusser, and he makes his fussy unhappiness very apparent in very funny ways. Ridicule, farce, exaggeration, mockery — all these things can be useful sometimes. But on this subject and in that particular article, he's not helping anyone do anything except vent frustration, so that's the only thing for which I can give him credit.

(9) Gregory Koster made the following comment | Aug 12, 2013 2:36:22 AM | Permalink

Dear Mr. Dyer: Many thanks for the dual responses. I urge you to delete them at once. You are in Great peril should Ray Bolger ever see them. He would certainly win a copyright infringement suit…
Forward. The Bolt quotation has always struck me as idiotic. What does the Devil care for human law? Hain’t he got the power to run over it? A better example for Bolt to use would have been the King i.e. the sovereign, instead of the devil. He’s on stronger ground. You doubtless remember the U.S. v. Nixon case where the courts kept saying to Nixon, you gotta give up those tapes, and Nixon kept defying them. Finally the Supreme Court came up with an 8-0 (“tight as a drum” in Al Haig’s phrase) ruling against Nixon. He caved. Victory for the rule of law? Or Nixon’s realizing that to defy this ruling means a military response i.e. a coup? Now consider that a) our darling Atty Genl Eric Holder has been voted in contempt of Congress,the first time a sitting Atty Genl has been found---and dam little has happened. The Justice Dept refuses to enforce the citation. “Rule of law?”
b) a deputy asst Treasury Secy tells the nation in a Friday afternoon that the business mandate for Woncare is going to be suspended for a year. His authority? “Well, whaddaya gonna do about it, sucker?” “Rule of law?”
c) the Black Panther voter intimidation scandal in Philly, where the Panthers lose by default, and ol’ Holder essentially chucks out the case. “Rule of law?”
d) Civil forfeiture. Oops that article’s by Radley Balko, so we don’t need to do anything but stick fingers in our ears, close our eyes, and howl “Lalala (or “LawLawLaw”) I can’t hear you.”
e) The FISA court and its 1000+ approvals for the NSA to vacuum up data and fewer than five refusals, every single time being done ex parte. The likes of Andy McCarthy say the existence of this court and its authorizing laws are proof that everything is fine, an argument he would never buy for Obamacare.
f) the sordid, mean-spirited, bad faith actions of People’s Hero John Sirica in presiding over the trial of the Watergate Seven.
g) the IRS scandals in which such thugs as Lois Lerner jump on their Fifth Amendment rights, something they never allowed their victims to do, while howling that “I’ve done nothing wrong.”
At what point does this “rule of law” in which the politically unconnected can be kicked around by govt with impunity but the dam govt can do pretty much as it pleases (Holder Lerner, Sirica, NSA), become risible? Further, the notion that the Major’s due process rights are in danger makes me laugh aloud. There’s far worse violations of due process (see a-f above) happening to thousands of people, and we’re worrying about a politically correct and hence better protected person tying the system in knots because of a beard he’s wearing?
You take a low blow at Steyn, viz:
”He's often dismissive of those things, and he's more than occasionally wrong in his dismissiveness.”

No examples of “occasionally” but no matter. Following the legal precept that the laity must be perfect in every argument else they can be ignored. Nevertheless, being doomed, I rush forth brandishing this argument of Steyn’s, viz:

“On December 7, 1941, the U.S. naval base at Pearl Harbor was attacked. Three years, eight months, and eight days later, the Japanese surrendered. These days, America’s military moves at a more leisurely pace. On November 5, 2009, another U.S. base, Fort Hood, was attacked — by one man standing on a table, screaming “Allahu akbar!” and opening fire. Three years, nine months, and one day later, his court-martial finally got under way.”

Three years eight months, and one day later, the court martial finally got underway. Not finished, but started. What price due process?

Oops, I forgot. The laity aren’t allowed to question the law unless they have something better. Very well, here it comes, the Gregory Koster 200 proof Due Process for Major Hasan:

Try the major using the same due process Leon Czolgosz was tried under for assassinating President William McKinley. McKinley was shot on 6 September 01, Czolgosz was arrested the same day. The case was politically charged, the Major because he follows the tenets of jihadic Islam Czolgosz because he followed the tenets of Anarchism. C was arraigned on 16 September, tried on 23-24 September, convicted on 24 September, and fried in the chair on 29 October. Start to finish: 53 days. NOT three years eight months and one day, with no end in sight.

You could argue that a) the death of a Prez is a petty crime, Nasan’s is much much worse or b) C’s conviction was unjust and should have been vacated because it didn’t take three years etc. or c) the legal argument that C’s crime was a state crime and Nasan’s was federal. In that case we’ll try the Major under the Due Process used for Charles J. Guiteau who shot President Garfield in Washington DC. Even a lawyer would blush as he argued that being shot in Washington DC is not a federal crime. Elapsed time from start to finish for Guiteau: 363 days. (Much of the lengthier time comes from Garfield not dying for 79 days after his shooting, unlike McKinley who died in 8 days.)

As for the actions of the judges in the trial, Judge A acted the fool by allowing himself to be sucked into the beard imbroglio. The appeals court, terrified of not appearing politically correct, promptly vacated A’s fine of Hasan, and kicked A out as presiding judge. Replacement Judge B promptly doubled down by saying Hasan’s beard was a violation of regs, but she wouldn’t hold it against him. Competent judges? Hahahahahahahahahahahaha!

As for the defense counsel in abeyance, you state they behaved ethically by trying to withdraw from the case when they were convinced he wouldn’t pay attention to their advice. That’s the funniest definition of “ethical” I’ve yet heard. Ethical it may be, but it’s dishonorable, deserving nothing but scorn. The British Prime Minister Benjamin Disraeli was once trying to persuade a Tory MP to vote for a measure the MP thought was wrong. The MP said he thought party policy was wrong in this case. Then that’s when you should stick by your party, and try to bring it round, said Disraeli. So too with this precious pair. Their actions are far more likely being driven by realizing they are on the TITANIC, and want no blame attaching to them.

Bah. The Major’s case is trivial. He is determined to bump himself off, and all the due process in the world won’t stop that. Only the lawyer’s conviction that limitless due process, which by no coincidence generates more work for lawyers, will stop it. Guilt? Trying to provide justice for the victims? Well, the victims and their families aren’t politically correct, so the hell with them. The real tragedy sez, the Army Chief of Staff, is if this incident hurts diversity in the Army. Meanwhile an overmighty govt on all levels becomes more predatory toward certain citizens and the hell with due process. The very folks charged with providing due process to the citizenry e.g. the FISA courts or the Justice Dept, have become the worst enemies of what they purport to believe in. Don’t worry about the Major. Worry about George Zimmerman who is about to get a bellyful of due process via the Justice Dept’s “investigation” concerning Z’s violation of Trayvon Martin’s civil rights. “That doesn’t violate double jeopardy,” warbles the legal establishment, which will never have to worry about such an event happening to themselves.

Oh dear. All the ill-temper has spilled out a much to great a length. Many thanks for the use of the forum.

Sincerely yours,
Gregory Koster

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