Judge rejects accused Ft. Hood shooter’s new defense strategy

HOUSTON -- A military judge on Friday rejected a new defense strategy by accused Ft, Hood shooter Maj. Nidal Malik Hasan.

The judge, Col. Tara Osborn, said during an afternoon hearing at the Army base that she would not allow Hasan to argue that he shot Ft. Hood soldiers to protect Taliban leaders in Afghanistan, as he had proposed.

Hasan, 42, an American-born Muslim, is charged with premeditated murder and attempted murder in connection with the deaths of 13 people and wounding of 32 others in the attack on Nov. 5, 2009. If convicted, he faces a possible death sentence.

Ft. Hood shooting timeline

Hasan, an Army psychiatrist, proposed his new defense after successfully petitioning the judge to allow him to defend himself, saying he attacked soldiers preparing to deploy to Afghanistan in 2009 because they posed a threat to Taliban leaders. His previous efforts to plead guilty were rejected on the grounds that military law does not allow such pleas in capital cases.

Osborn said Hasan’s “defense of others” strategy “failed as a matter of law,” according to a Ft. Hood statement, since no soldiers at the Central Texas base posed an immediate threat to anyone in Afghanistan.

“She ruled that as a uniformed soldier in the U.S. Army, Hasan had no justification to kill other U.S. soldiers,” the statement said, and ”that she will not allow Hasan to present any evidence or argument relating to the defense of others.”

Hasan had complained about the adequacy of assistance he received in preparing the documents he submitted to the court. But Osborn in her ruling Friday said that issue “was irrelevant because no amount of legal research or argument would have resulted in a different ruling” on his defense, the statement said.

Jury selection in Hasan’s court-martial was already supposed to have started, with testimony following in July, but Hasan succeeded in delaying both after submitting his proposed new defense.

The trial has been plagued by repeated delays — notably when Hasan refused to shave his beard for religious reasons and succeeded in getting the military judge handling the case replaced. Another delay came when Hasan fired his three military attorneys last month, whom Osborn has tried to maintain as his advisors or standby counsel -- although they have at times protested, most recently due to Hasan’s latest defense of others strategy.

On Friday, Osborn ordered Hasan’s standby counsel to submit briefs outlining their role by Monday so that she can issue a written order.

Military legal experts said the judge would have to hold the line against Hasan’s proposed defense, refusing to instruct the jury about it and stopping him if he tried to present it.

“The problem is if he starts to argue the defense, what is the judge going to do then? He’s essentially confessing to everything in a way that makes the [jury] even angrier. I don’t know how the judge is going to stop the argument,” said Richard Rosen, a retired colonel and professor of law at Texas Tech University School of Law in Lubbock.

Rosen noted that if Hasan is found guilty, he has a right to make a statement and “he can say whatever he wants to say. So ultimately, he may try to get the defense in.”

Rosen agreed with Osborn that the defense of others argument is legally unfounded in Hasan’s case and will only hurt his chances with the jury panel of his peers -- many of whom will probably be officers who may have served in Afghanistan.

“It’s just going to make matters worse,” Rosen said. “If he says he was doing this to defend the Taliban, it will only inflame the panel.”

But that could be exactly what Hasan wants, he said.

“It may be that he wants to be a martyr,” Rosen said, “that will certainly speed him on his way.”

Rosen said Osborn has done what she can to protect Hasan’s rights and prevent a reversal on appeal, but now that Hasan has decided to defend himself, it’s time to go to trial.

“He’s had 3½ years working with various counsel to prepare a defense,” Rosen said, “This thing needs to get off the ground.”

The next hearing in the case is scheduled for Tuesday.

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