FORT HOOD, Texas — The surprising passivity of Maj. Nidal Hasan suggests he is seeking the death penalty for gunning down his fellow soldiers, though analysts caution it is too soon to know for sure.
Hasan, 42, is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder for the shooting on Nov. 5, 2009. He has chosen to represent himself, but has been largely silent since his brief opening remarks, in which he acknowledged he was the shooter.
Richard Rosen, a former Army lawyer who is now a law professor at Texas Tech University, said there have been some leading questions and argumentative statements to which Hasan could have objected, but much of the evidence is indisputable.
It’s common for the defense to not ask a lot of questions when facts aren’t really in dispute, particularly since aggressively questioning the emotional witnesses is risky, said Victor Hansen, vice president of the National Institute for Military Justice.
“I think it’s a little early in the process to assume” what Hasan is planning, Hansen said. “We’ve got a long way to go. … The crime and the case are unprecedented.”
The judge, Col. Tara Osborn, assigned a team of three military lawyers to assist in the defense as “standby counsel.”
Last week, the head of the standby counsel team asked the judge to relieve them from those duties because, they believe, Hasan is actively pursuing the death penalty.
“We believe your order is forcing us to violate our professional ethics” and responsibilities to pursue something “morally repugnant,” Lt. Col. Kris Poppe told judge Thursday.
Osborn denied the motion, saying the problem was “nothing more than their disagreement with Major Hasan’s trial strategy.”
In court, lead prosecutor Col. Mike Mulligan said Hasan has two options: “I didn’t do it, or I did it with an excuse.”
Hasan appears to be following the latter, Mulligan said.
“I’m really perplexed how it’s caused such a moral dilemma,” he said.
Defendants in capital cases cannot plead guilty under the Uniform Code of Military Justice, but in his opening remarks, Hasan admitted his guilt.
“The evidence will clearly show that I am the shooter,” Hasan said, later apologizing for “any mistakes” he may have made in “trying to establish the perfect religion.”
Hasan’s statement lasted only about a minute.
Hasan was shot by police outside the building where many of the victims were killed or wounded, and is paralyzed from the waist down. He has been rolled into court each day in his wheelchair, wearing a fleece cap and a sweater under his camouflage uniform because of an apparent inability to regulate his body temperature, a result of his wounding.
More than 40 witnesses have already testified regarding his actions up to and on the day of the shooting, and some testimony suggested Hasan believed he would die in the attack.
Two men who attended the morning prayer at the Islamic Center of Greater Killeen on the morning of Nov. 5, 2009, said they remember Hasan saying “goodbye” to the congregation and telling them he was going home.
Hasan’s former neighbor testified that Hasan gave her several items from his home the day before the shooting, and gave her $60 to clean his apartment. An FBI agent testified that Hasan’s apartment was virtually bare after the shooting, with only a prayer mat and a shredder in the living room.
Three men associated with a Killeen store called Guns Galore, and a man from Stan’s Outdoor Shooting Range in nearby Florence, Texas, testified that Hasan had purchased an FN Five-seveN semi-automatic pistol, a green laser sight and magazine extenders a few months before the shooting, and regularly shot large quantities of ammunition at the range.
The prosecution has sped through its witness list, calling more than half the witnesses in the first few days of the court-martial. Hasan has declined to cross-examine the majority of the witnesses and offered few objections.
On Friday, Osborn asked Hasan whether he objected to a chilling demonstration of the rate of fire that day, after Staff Sgt. Nicole Brossard pounded loudly and rapidly on the witness box.
“It was very methodical,” Brossard said.
Hasan did not object.
Friday, two of the members of the standby defense team were excused to file an appeal to Osborn’s ruling that the team continue to assist Hasan with legal matters during the trial, despite their objections.
But that dispute “seems to be between the standby counsel and the military judge,” Rosen said, and shouldn’t derail the trial.
The case raises several complex legal issues, however, and all serious cases in the military justice system are automatically reviewed. This case will, by law, have two levels of review.
Hasan representing himself also adds complexity, Hansen said.
So while the evidence seems overwhelming – nearly every witness identified Hasan as the shooter and many note that nearly everyone he shot was wearing an Army uniform – Hansen cautioned against drawing any conclusions.
“There’s no such thing as a slam-dunk capital case.”