One of the issues I continue to find interesting is the criminal defense counsel's dilemma when an accused wants to present a defense that seems nonsensical to practical lawyers. The defenses of John Brown and the Unabomber are paradigmatic. According to this article, it appears that we may have a similar situation developing with Maj. Hasan, the accused in the Fort Hood shooting.
Previously we blogged about Hasan's decision to represent himself, a decision that I presumed was unpopular with the judge, the prosecutors, and others. The article about Maj. Hasan suggests that the appointed "shadow counsel" are trying to decline the representation because they don't like the defense theory -- or feel that the defense theory is not ethical.
The defense theory Hasan likes is, apparently, that the shootings at the military base in Texas were done in defense of the Taliban. It's a "defense of third party" theory. Presumably it would be an "imperfect necessity" argument: that the acts were done in the actual but unreasonable belief that they were necessary. That is neither justification nor excuse. At best, it's mitigation. But it does give the accused the chance to speak honestly and openly about why he did what he did. That is a close analog of the defense that the Unabomber wanted to raise but was prevented from raising because the federal public defenders deceived him and then put on another defense. (William Finnegan's classic article about that case, Defending the Unabomber, is under a paywall, unfortunately.) It's a reasonably close analogy of the defense that John Brown wanted to raise. In both the Unabomber and the John Brown cases, the defense preferred to raise mental health defenses.
Interestingly, in the Unabomber case, Tony Serra was willing to step in and present an "imperfect necessity" defense -- and Serra was criticized by the capital defense community and the federal public defenders for being willing to do so. From Serra's point of view, raising an imperfect necessity defense was ultimately the client's decision and Serra was more than ready to sell it to the jury. (Serra was never permitted to step in.)
From what I can glean of Maj. Hasan's mental health from news articles (a perilous analysis), it's entirely his decision to assert that he was acting in defense of third parties and the appointed shadow counsel should set aside their own views and support him even if the defense is unpalatable and likely to fail.
UPDATE: According to lots of news accounts, including this LA Times article, the judge has ruled that Maj. Hasan may not offer a "defense of others" theory in his own defense. I understand the legal ruling. Assuming that that's in fact why Hasan did the killings, I wonder to what extent he can say anything at all at trial on the motive for what he did. And if that's why he did the killings, to what degree would it satisfy the duty of candor to the court for appointed counsel to present some alternate theory?
[edited slightly since posting]
