Judge orders exam for accused Ft. Hood shooter Nidal Hasan

Nidal Hasan, the Army psychiatrist charged in the 2009 mass shooting at Ft. Hood in Texas, is seeking to represent himself at trial, prompting a military judge on Wednesday to order that he undergo a physical exam to determine whether he’s capable, officials said.

During a morning hearing to address the issue, the judge, Col. Tara Osborn, ordered the government to conduct the exam and file a medical report by Friday. She said she plans to consider the results at a Monday morning hearing.

Osborn had delayed jury selection, which was scheduled to begin this week, until July 5. The trial is expected to begin in July.

Hasan, 42, is charged with killing 13 people and wounding 32 others in the November 2009 attack at the sprawling Central Texas Army base about 60 miles north of Austin. If convicted he faces a possible death sentence.

Osborn had been trying to keep the trial on schedule after extensive delays. A previous judge and appellate courts had debated whether Hasan, who is Muslim, should be required to shave his beard to comply with military rules. Osborn has set that issue aside.

If the judge refuses Hasan’s request to defend himself, he will probably appeal to higher courts and request the trial be stayed, causing further delays, according to retired Col. Lisa Schenck, a former military judge now serving as associate dean at George Washington University’s law school.

Allowing Hasan to represent himself now could also raise a host of new appellate issues, Schenck said.

“You can’t predict what issues. This guy’s not a lawyer, continually new issues might be raised,” Schenck told The Times, adding that in the military courts, “I know of no high profile cases where the accused represented himself.”

The military judge’s bench book provides a suggested script of questions, a dialog the judge can have in court with defendants who wish to represent themselves, Schenck said. It includes questions about whether the defendant has ever studied law, suffers from physical or mental ailments and knows the rules of courts-martial. Hasan has already been found to be mentally competent to stand trial.

“I don’t know if this gentleman has the capacity to do this,” Schenck said, “You’ve got rules of procedure, evidence, cross-examination of witnesses.”

Hasan is paralyzed from the chest down from gunshots fired during the 2009 attack by two civilian Ft. Hood police officers.

In 2011, he dismissed his civilian attorney and he has since twice asked that the death penalty be removed so he could plead guilty to the shootings. Osborn refused the request because under military law a defendant cannot plead guilty to a capital crime.

Osborn discussed Hasan’s rights to counsel during Wednesday’s hearing, according to a statement released by Ft. Hood spokesmen.

“The judge noted that a prior inquiry into Hasan’s mental health indicated that he had the mental capacity to conduct and assist in his own defense,” according to the statement.

Military rules still allow a judge to require a defendant representing himself pro se to still be advised by military lawyers, Schenck said.

“She can require the defense to remain at the table. That’s what I believe she will do if she allows him to be pro se,” Schenck said. “That’s a lot of stress to be that defense at the table, because he’s not a lawyer and he’s going to want to do things that you as a qualified lawyer would not do. There’s a whole mess of issues that could arise from that which is really difficult for that trial judge.”

If Hasan is allowed to defend himself and becomes disruptive — lecturing instead of questioning witnesses, for example — he could lose the right to defend himself, Schenck said. But it will be up to the judge and government lawyers to hold him accountable.

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