The military judge overseeing the trial of an Army psychiatrist charged in the 2009 Fort Hood shooting rampage may not allow him to claim that he killed to defend Taliban leaders, military experts said Wednesday. And such a decision could lead to even more delays in a case that's already dragged on for years.
Maj. Nidal Hasan revealed this week that he would use a "defense of others" strategy at his trial. Such a strategy requires him to prove the shootings were necessary to protect others from imminent harm or death. Hasan told the judge that U.S. troops deploying from the Texas Army post posed an immediate danger to Taliban fighters.
The judge, Col. Tara Osborn, is to discuss Tuesday whether Hasan has the evidence to use the "defense of others" claim and rule if Hasan will get a three-month delay to prepare for that defense.
However, Jeff Addicott, director of the Center for Terrorism Law at St. Mary's University in San Antonio, said it's unlikely that Hasan will have the legal elements needed to move forward with the strategy, so Osborn will likely not allow it.
Lisa M. Windsor, a retired Army colonel and former judge advocate, said the judge may allow it but tell jurors to disregard Hasan's argument, because "it doesn't have to be a good defense. It has to be a plausible defense."
It's unclear when jury selection will begin. It had been scheduled to start this week, with testimony starting in early July.
Hasan faces the death penalty or life without parole if convicted of 13 counts of premeditated murder and 32 counts of attempted premeditated murder.
Hasan can appeal if Osborn denies his defense strategy, said Addicott, who is not involved in Hasan's case. If he chooses not to appeal, Hasan could forego a defense theory and just try to make the government prove its case and try to cause reasonable doubt for at least one juror, Addicott said. Death-penalty cases in the military require at least 12 jury members and their verdict must be unanimous in finding guilt or assessing a sentence.
Earlier this week, Osborn granted Hasan's request to represent himself but said his defense attorneys would remain on the case to assist if he asks. A jail rule prevents him from having Internet access, even when he does research at Fort Hood, the judge said.
Lt. Col. Kris Poppe told the judge Wednesday that she was asking him to "cross a line" by ordering the defense attorneys to comply with Hasan's research requests, which were sealed and not revealed in court. Poppe said a "standby" attorney's role was not to give advice or judgment. Osborn was to rule on the matter next week.
The snags and delays are nothing new in the case.
Hasan's trial initially was set for March 2012, then delayed to June and then to August after defense attorneys said they needed more time to prepare. Less than a week before it was to start, the trial unexpectedly was put on hold when Hasan appealed an order by then-judge Col. Gregory Gross that his beard would be forcibly shaved unless he removed it before trial. Although facial hair violates Army rules, Hasan started growing a beard last summer, saying it was required by his Muslim faith.
Hasan appealed again in September after Gross issued a definitive, written order for the forced shaving. Court proceedings resumed in December after the military's highest appeals court ousted Gross from the case and threw out his order.
Osborn, the new judge, has told Hasan she won't hold the beard against him. Because he likely will continue to have a beard at trial, jurors will be told not to consider his appearance when deciding on a verdict.