FT. HOOD, TEXAS — A military judge decided Monday to grant a request by accused Ft. Hood shooter Maj. Nidal Malik Hasan to represent himself at his court-martial, finding him competent to waive his right to counsel after a doctor testified that he is physically capable of handling his defense during what’s likely to be a lengthy trial.
The military judge, Col. Tara Osborn, had ordered Hasan to undergo a physical exam last week and ruled Monday after summoning the doctor who performed the exam to testify about Hasan’s health.
Hasan, 42, an Army psychiatrist, is charged with killing 13 and wounding 32 during the 2009 mass shooting at this sprawling Texas military base. If convicted, he could face a death sentence. He has been represented by military attorneys since he fired his civilian attorney two years ago, but last month asked to represent himself.
On Monday, he appeared in court wearing his uniform and a full beard, his head shaved. He remained calm throughout, taking notes and only objecting to the doctor’s report being submitted as evidence, saying “that is information between me and my physician,” but the judge overruled him.
Osborn had questioned whether Hasan was physically capable of representing himself — during the attack, he was shot by police and paralyzed from the chest down; he now uses a wheelchair and his attorneys have said he is unable to participate in the courtroom for more than five hours a day. Hasan’s previous medical exam was a year ago this month, and since then, nursing staff where he is housed at Bell County Jail have addressed his medical needs.
But the doctor who testified Monday, Maj. Prasad Lakshminarasimhiah, a rehabilitation physician based at San Antonio Military Medical Center, said Hasan has the stamina to concentrate for hours at a time, that he can sit upright for up to 12 hours a day with stretch breaks every four hours, can write with his right hand (his left hand suffered nerve damage) and do limited typing.
Lakshminarasimhiah said the only medicine Hasan takes is occasional over-the-counter painkillers and that he has suffered no recurring pain or other major complications. He said Hasan would suffer no cumulative complications from sitting for extended periods in court defending himself.
Osborn barred the doctor from discussing comments Hasan made during the exam last Thursday, saying she did not want to know why Hasan requested to defend himself, other than whether it was "a strategic decision.”
“Yes,” Hasan said. “There’s multiple factors.”
Three years ago, a three-person board of military medical professionals determined Hasan was competent to stand trial. The findings of the report have never been released, but Osborn referred to it Monday, saying it showed Hasan is competent to understand legal proceedings.
But she spent most of the hearing urging Hasan to retain his military counsel and not defend himself, which she said was “unwise” given his lack of legal experience -- he said he had never defended himself, even against a traffic ticket. She noted that lead military lawyer prosecuting him, Col. Michael Mulligan, has been practicing since 1987.
She questioned Hasan for about an hour.
“How are you, with no formal legal training or education, going to know what to do when the other side has that level of education?” Osborn said.
"I’m going to do the best I can do," Hasan replied, his voice calm.
Osborn also questioned how Hasan would be able to write and type enough to defend himself. He said he had a lot of experience typing and could compensate for his injured hand.
“You would be better off with a trained lawyer who would know the rules of court-martial, the rules of evidence, the rules of law,” she said, offering Hasan the option of seeking other lawyers. He declined.
At one point, the judge asked Hasan to list the charges against him, and he faltered, conferring with his lead military attorney before responding.
“If you are convicted, you could be sentenced to what, what is the maximum punishment in this case?” Osborn said.
“Death,” Hasan murmured.
In granting Hasan’s request, Osborn stipulated that his three military attorneys remain to advise him as standby counsel, with two sitting at the defense table; a third, whom Hasan had asked not to remain as standby counsel, will be seated in the gallery.
Osborn noted that if Hasan violates the rules of the court, making statements instead of cross-examining witnesses or himself, “I will consider revoking your pro se status” -- reinstating his military attorneys.
Monday's ruling will allow Hasan to question soldiers and civilians he allegedly shot and who have told the Los Angeles Times they dread facing him in court.
Additionally, the judge also noted that Hasan will not have access to classified information previously reviewed by his attorneys and the military prosecutors as part of discovery.
Court was due to reconvene to discuss logistics Monday afternoon. It was not immediately clear how Osborn's decision will affect the trial schedule.
Osborn has worked to expedite the trial, which under a previous judge had stretched on with repeated delays and appeals, the latest due to Hasan’s refusal to shave his beard due to his religious beliefs as an American-born Muslim. Jury selection was scheduled to start Wednesday with testimony expected to begin in July, and officials had already added two walls of security barriers around the courthouse in preparation for the trial.
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