Monday, June 3, 2013

You know what they say about someone who represents himself...

I  know it's odd and frustrating to lay people that the suspect in the Ft. Hood shooting still hasn't gone to trial. It has been 3 1/2 years since the November 2009 shooting that killed 13 and wounded 30 others. But even within the military justice system, such is the way of death penalty litigation. If you want to kill a guy, you have to give him enough time to put together a defense case. And the suspect in that case, Major Nidal Hasan, was very seriously wounded himself, resulting in paralysis. Dealing with those injuries also set the trial back.

Now, the trial was set to start at the end of June. It's common for lots of motions to be decided at hearings in the weeks before a trial. In this case, the big motion that was ruled on today was Hasan's request to represent himself. I'm not well-versed in military criminal law, but I do know there are some differences from civilian justice. Not all rights are exactly the same because those who signed up for the military voluntarily signed up for slightly different rules. But in the regular world, if a defendant wants to represent himself in court, the trial judge has very little choice but to grant that request. The court can try to tell the guy it's a horrible idea, go into great detail about why it's such a stupid idea. But if the defendant meets rather low competency standards, the court can't deny the request. Deny the request and the remedy is a new trial. It's one of the very few appellate issues that are considered structural error, where if I show my client made a request to represent himself that wasn't honored, I don't have to show there was any prejudice. He just flat gets a new trial, regardless of the strength of the evidence against him or the thoughtfulness of the jury's verdict.

It appears that same standard applies in military justice because the judge overseeing the Hasan trial granted the defendant's request today. It still doesn't quite answer the question for me of whether the standard is quite the same as in civilian criminal court. I'll be watching curiously to see if Hasan can do something that will cause the district court to force counsel on Hasan after all. Many are concerned that Hasan will use the trial as a platform for airing his grievances against the US and his religious views that led him to commit the act he's accused of. Zacarias Moussaoui wanted to represent himself and filed lots of fun and interesting pleadings.

But so what if that is what he wants to do? Why not let him make a few odd speeches? Lots of criminal defendants have all sorts of grievances they want to air, conspiracy theories they want to put forward. Anyone who has done criminal defense for a few years has certainly had at least one client who insisted on filing his own motions filled with, umm, novel arguments. Why not let this guy have a little leeway, especially if it means less possibility of an appellate court overturning a conviction. I'm sure people would prefer it if he would sit down, shut up, and accept punishment already. But I appreciate the fact that we let even the wackiest, most difficult defendants their day in court.

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