Thursday, August 29, 2013

Fort Hood and the Right to Self-Representation

Photo: Department of Defense
On Wednesday, August 28, a military jury sentenced U.S. Army psychiatrist Nidal Hassan to death. Major Hassan admittedly—in fact, boastfully—killed 13 and injured another 31 in a shooting rampage at Fort Hood, Texas in 2009.

At his trial, Hassan represented himself. He opened his case by telling the jury that he committed the attacks in opposition to what he perceives to be an American war against Islam. Lawyers who assisted Hassan reported that the soldier invited the death penalty; Hassan has reportedly said that he wants to be a martyr.

The Right to Self-Representation
Pursuant to the Sixth Amendment to the U.S. Constitution, the criminally accused have a fortified right to self-representation. In all but the rarest cases—such as when they are profoundly mentally incompetent or when they try to disrupt court proceedings—defendants can represent themselves if they so choose.

But what happens when a defendant’s purpose is to sabotage his own defense and receive the harshest sentence possible?

Faretta v. California
The U.S. Supreme Court decided Faretta v. California in 1975, holding that, while the accused have a right to assistance of counsel, the government can’t force lawyers upon them. (422 U.S. 806.) But, implicitly recognizing that it’s almost never prudent to represent oneself (even “the attorney who represents himself has a fool for a client”), the Court said that judges should warn defendants of the disadvantages of self-representation. Only with this advisement can defendants “knowingly and intelligently” choose to represent themselves.

Seeking Death
Death penalty cases, including those in the military justice system, are divided into guilt and penalty phases. At the former, the jury decides whether the defendant committed a crime for which death is a potential punishment. If the answer is yes, the case proceeds to the penalty determination.

At the penalty phase, the prosecution presents aggravating evidence—it’s an opportunity to argue the defendant doesnt deserve to live. The defense in turn can present mitigating evidence, to show the life is worth sparing. Typical kinds of mitigating evidence relate to the defendant’s upbringing, mental health, and good deeds.

In the Fort Hood case, Hassan reportedly did his worst to defend himself. He repeatedly denied opportunities to present evidence. At the sentencing phase, he chose not to present any mitigating evidence, virtually assuring the jury would choose death.

Under current law, it was his right to do so.

In U.S. v. Davis, a federal appeals court held that a district judge had wrongly forced a penalty-phase lawyer upon a defendant who chose not to present any mitigating evidence in his capital trial. (285 F.3d 378 (5th Cir. 2002).) Invoking Faretta, the court held that the trial judge’s appointment violated the defendant’s Sixth Amendment right.

Not all courts agree that defendants should be allowed to seek death without impediment. The New Jersey Supreme Court, for example, expressly disagreed with the Davis holding. (State v. Reddish, 181 N.J. 553 (2004).) Most courts, however, hold that defendants are within their rights to prevent the presentation of mitigating evidence, which explains Hassan’s defense (or lack thereof).

For more on this topic, see this article at