The military lawyers ordered to help Maj. Nidal Hasan had asked the judge to either scale back their advisory duties or allow them to take over his defense. They believe Hasan is trying to convince jurors to convict him and sentence him to death for the attack that killed 13 people and wounded more than 30 others at the Texas military base.
The judge, Col. Tara Osborn, denied that request Thursday in a heated exchange with the lead standby attorney, saying it was clear that the lawyers simply disagreed with Hasan's defense strategy. Hasan has been largely silent during the trial, and he objected only once Thursday as nearly a dozen witnesses testified.
But the attorneys were adamant and said they would appeal Osborn's ruling to a higher court.
"We believe your order is causing us to violate our rules of professional conduct," said Lt. Col. Kris Poppe, who has said Hasan was trying to fulfill a death wish.
Osborn fired back that she had already heard and ruled on such arguments, and she briefly recessed the trial. She later ordered the attorneys to resume their advisory roles and allowed witnesses to begin testifying, including the only one Hasan briefly challenged.
Sgt. 1st Class Maria Guerra told jurors that amid the chaos of the shootings she had to quickly decide who she could save, so she grabbed a black marker and wrote a "D" on the foreheads of those she couldn't. To people lingering over the dead, she shouted: "You need to move on!"
When prosecutors asked Guerra to describe the scene, her voice began breaking.
"I see bodies. I see bodies everywhere. And I see blood," she said. "No one is moving. There was no movement. There was no sound. So I yelled out, `Is everybody OK? ... I started hearing, `Help me. I'm bleeding. I've been shot. Help me."'
Hasan objected when Guerra described hearing the gunman silence a woman who was crying out, "My baby! My baby!" Hasan interrupted to ask the judge, "Would you remind Sgt. 1st Class Guerra that she's under oath?"
Osborn did so, briskly. Then a prosecutor asked Guerra if there was anything she wanted to change about her testimony. She replied: "No, sir."
Hasan didn't consult with his standby attorneys.
The tension initially spilled over Wednesday -- only the second day of the trial -- when Poppe told the judge that if Hasan were allowed to continue on his own, he and Hasan's other standby attorneys didn't want Hasan to be able to ask them for help with a strategy they opposed.
Poppe speculated that Hasan's goal was to remove obstacles to the death penalty, a strategy that was "repugnant to defense counsel and contrary to our professional obligations."
Hasan gave a brief opening statement during the trial's first day that included claiming responsibility for the attack. He posed no questions to most witnesses and rarely spoke. On one of the few times he did talk, it was to get on the record that the alleged murder weapon was his -- even though no one had asked.
Sometimes he took notes, but he mostly looked forward impassively. When the judge asked Hasan on Thursday whether he had read a six-page motion, he said he had only skimmed it.
No appeal had been filed by the standby attorneys as of Thursday evening at the Court of Appeals for the Armed Forces, according to the court's clerk. A message left with the Army Court of Criminal Appeals wasn't immediately returned.
But several experts said an appeal likely would be a lost cause.
"My prediction is it's going to be resolved in short order and be denied," said Jeff Corn, a law professor at South Texas College of Law. He added that an appeal would likely start at the Army appellate court and not stall the trial.
"As sympathetic as I am to him (Poppe), and the miserable position he's in, I think he's stuck. The law is clear: If you are a standby attorney for a pro-se defendant and the defendant wants to make decisions tactically disastrous, that's his prerogative," Corn said.
Hasan's former civilian lawyer, John Galligan, noted that Hasan's jury was made up of military officers.
"There's a big difference between a death wish and a realistic acknowledgement that everybody in that courtroom is out to kill him. ... I call that realism."
But it could also be an intended strategy to spare Hasan the death penalty, said Joe Gutheinz, a Houston-area attorney and former Army intelligence officer.
"The judge allowed him to defend himself, you raised a timely objection. That is the basis for the appeal. And it was brilliant on the part of all the parties involved. If somebody thought up this idea, it was great," Gutheinz said.
"I really believe this is the only way, at end of the day, he will not be executed. I don't want to accuse the defense attorney of doing something that may be viewed in some sense as improper, but it preserves this for appeal."
During the hearing Thursday, the prosecutor, Col. Michael Mulligan, defended Hasan's strategy, saying it would have been "absurd" for Hasan to contest the facts of what happened the day of the attack. Mulligan said Hasan appeared to be taking on a "tried and true" defense strategy of not contesting the facts but rather offering an alternative reason about why they occurred.
"I'm really perplexed as to how it's caused such a moral dilemma," Mulligan told the judge.
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