KILLEEN, Texas — Months after deciding to act as his own lawyer, Major Nidal Malik Hasan declined to present a defense in his military trial Wednesday, passing up an opportunity to counter hundreds of witnesses and pieces of evidence prosecutors have used to persuade a jury to find him guilty of killing and wounding dozens of unarmed soldiers in 2009.
As relatives of some of his victims looked on, the judge overseeing his court-martial asked him to proceed Wednesday morning, after Army prosecutors rested their case the day before.
“The defense rests,” Hasan told the judge inside the packed Fort Hood courtroom.
The judge dismissed the jury, and later asked Hasan if he understood that he had a right to testify if he chose to. He said he did. Had he taken the stand and testified, Army prosecutors would have been allowed to cross-examine him. In the sentencing phase, Hasan could give an unsworn statement and not face cross-examination.
Hasan, 42, has been charged with 45 counts of murder and attempted murder in a shooting rampage inside a medical deployment center at the Fort Hood base on Nov. 5, 2009.
He admitted to the jury in his opening statement at the start of the trial Aug. 6 that he was the gunman. According to prosecutors and previous statements Hasan has made both in and out of court, he was motivated by two desires — to avoid deployment to Afghanistan and to kill as many soldiers as he could as part of a jihad to protect Muslims from US military aggression.
Hasan is the first defendant in a military capital-punishment case to represent himself in modern times. He has made few objections, asked few questions of those testifying, and has reached deals with the prosecution on issues by signing stipulations. His only defense exhibit admitted into evidence was an officer evaluation report, showing that he had earned a promotion.
At one point, Hasan’s Army defense team had prepared to call 59 witnesses. But after Hasan released those lawyers and began representing himself, he cut that list to two witnesses: a defense mitigation specialist and a religious conversion expert. Last week, he told the judge he no longer wished to call the mitigation specialist, and said Tuesday the other expert would not testify.
The judge, Colonel Tara A. Osborn, ordered prosecutors to bring them to Fort Hood anyway and ensure that they were available, her attempt to make sure their ability to testify does not become an issue should Hasan appeal.
The jury has not heard Hasan discuss the previous theory he put forward as a defense — his claim that he committed the shootings to protect Taliban leaders from US soldiers deploying to Afghanistan. The judge ruled that his defense had no legal merit and forbade him from presenting evidence of it.
“I think Hasan realized early on that once his distorted theory of defense was rejected, he had nothing to present or offer,” said Geoffrey S. Corn, a former Army prosecutor who is a professor at the South Texas College of Law in Houston. “I also think that he may be trying to manifest his disdain for both the Army and the military justice system, not in a belligerent manner, but by functionally boycotting the process.”
On Wednesday, the judge told the jury to return Thursday, when it will hear closing arguments and be given instructions on the charges before deliberation. The central question has not been whether the jury will find him guilty but whether it will unanimously vote for the death penalty. If one member of the 13-member jury disagrees on a death sentence, Hasan will receive a sentence of life in prison.