06/14/2013

Judge bans Fort Hood suspect's defense strategy

Maj. Nidal Hasan's "defense of others" strategy fails as a matter of law, Col. Tara Osborn said during a 45-minute hearing

By Angela K. Brown
Associated Press

FORT HOOD, Texas — A uniformed Army psychiatrist had no justification for gunning down U.S. troops and won't be allowed to tell jurors that he was protecting Taliban leaders in Afghanistan, a military judge ruled Friday, appearing to clear the way for the Fort Hood murder trial to begin.

Maj. Nidal Hasan's "defense of others" strategy fails as a matter of law, Col. Tara Osborn said during a 45-minute hearing. That strategy must show that a killing was necessary to prevent the immediate harm or death of others.

Osborn said no soldiers at the Texas Army post on Nov. 5, 2009, posed an imminent threat to anyone in Afghanistan and that the legitimacy of the Afghanistan war is not an issue at Hasan's court-martial. She also ordered that Hasan not present any evidence or arguments about his claims that deploying U.S. troops posed an immediate threat to Taliban fighters.

Hasan, an American-born Muslim, faces the death penalty or life without parole if convicted in the rampage that left 13 dead and nearly three dozen wounded.

He asked for a three-month trial delay to prepare for his defense after his request to serve as his own attorney was granted last week. But that delay seems unlikely since Osborn rejected his defense strategy; she has not ruled on his request.

Hasan can appeal Friday's strategy ruling, but an appellate court likely would not hear the case until the trial is over, said Jeff Addicott, director of the Center for Terrorism Law at St. Mary's University in San Antonio.

It's unclear if Hasan will present another strategy. All defense strategies must be approved by a judge in order to determine if they meet certain legal standards.

He might forego a defense theory, instead having the government prove its case and hope it causes reasonable doubt for at least one juror, Addicott said. Death penalty cases in the military require the jury's verdict be unanimous in finding guilt or assessing a sentence.

Osborn also said last week that Hasan would represent himself unless he changed his mind or disobeyed the court's orders and trial rules. Hasan's former defense attorneys have been ordered to assist him if he asks.

The next hearing is Tuesday, and along with ruling on the delay request, Osborn is expected to address the defense attorneys' new motions about their role as standby attorneys.

Earlier this week, the lawyers said complying with the judge's order to fully assist Hasan would require them to act unethically. Hasan said they refused to give him legal advice about his defense strategy because they opposed it. The lawyers indicated they may withdraw from the case, which may change due to Osborn's decision Friday.

Jury selection was set to begin two weeks ago, and then was tentatively moved to last week. It's been on hold as various matters remain unresolved.

Witnesses have said that after lunch on Nov. 5, 2009, a gunman wearing an Army combat uniform shouted "Allahu Akbar!" _ "God is great!" in Arabic _ and opened fire in a crowded medical building where deploying soldiers get vaccines and tests. Witnesses said the gunman fired rapidly, pausing only to reload, even shooting at some soldiers as they hid under desks and fled the building.

Government documents show that in the years before the shooting, Hasan told some colleagues that the U.S. was at war with Islam. In some emails to a radical Muslim cleric, Hasan indicated that he supported terrorists and was intrigued with the idea of U.S. soldiers killing comrades in the name of Islam.

Not everyone killed at the Army post was about to deploy to Afghanistan or elsewhere. Pvt. Francheska Velez, who was pregnant, had just returned from Iraq. Michael Grant Cahill, who tried to stop the gunman with a chair, was a physician assistant who worked in the building.

Copyright 2013 Associated Press

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