The military judge overseeing the trial of admitted Fort Hood gunman Maj. Nidal Hasan told defense attorneys Thursday that they can't drop out of the case -- even though they believe it's tantamount to helping him commit suicide.
"This is nothing more than their disagreement with Major Hasan's strategy in conducting his defense," said the judge, Col. Tara Osborn, rejecting a motion by the standby counsel who are tasked with assisting Hasan as he represents himself.
The attorneys argued Wednesday that Hasan is trying to help the prosecution achieve a death sentence.
Osborn's decision sparked a bitter fight in a trial focused on charges that Hasan shot and killed 13 people and wounded 32 in the November 2009 rampage at the Army installation near Killeen, Texas.
"We believe your order is causing us to violate our professional ethics. It's morally repugnant to us as defense counsel," said Lt. Col. Kris Poppe, head of Hasan's legal team.
He asked for a stay on her order, which would prevent it from going into effect. The judge then asked for a written document from the state bar establishing that continuing to work with Hasan would be an ethical violation.
"I will make it easy for you. I've given you an order ... and that relieves you of every ethical liability," Osborn said.
Poppe would have nothing of it, his voice raised in obvious frustration.
"The order does not relieve us of the responsibility. ... We believe we are doing something that is morally repugnant. This is not about saving my license ... this is about what you are requiring me to do today: assist this man in achieving the goal, which we believe is achieving a death sentence."
The lead prosecutor chimed in, questioning the defense team's claims, saying that Hasan is mounting a legitimate defense.
"The government sees only two defenses: either 'I didn't do it,' or 'I did it, with an excuse.' He was caught with a gun in his hand," said Col. Michael Mulligan.
"I don't understand how that's repugnant to defense counsel -- I'm truly perplexed."
In a military capital trial, a guilty plea is not an option. Hasan's official plea is that he is not guilty of the charges. But on Tuesday, Hasan used his opening statement to declare "I am the shooter."
After the standby counsel argued Wednesday that Hasan was seeking the death penalty, Hasan objected, calling it "a twist of the facts." But he refused to submit his objection in writing, a move that Osborn requested to avoid revealing privileged information in open court.
The defense attorneys Thursday immediately appealed Osborn's ruling. But she gave no stay in the meantime. "We're going to move forward," the judge said, allowing the trial to continue unless a higher military court weighs in.
The trial resumed with the prosecution calling to the stand soldiers who were witnesses of Hasan's shooting spree.
The attorneys' request Wednesday halted what would have been the second day of testimony.
Although Hasan, a U.S.-born citizen of Palestinian descent, was granted his request to represent himself, Osborn ruled before the court-martial began that defense lawyers would act as standby counsel during the proceedings.
Expert: Judge can't let attorneys stop
Geoffrey Corn, a military justice expert at the South Texas College of Law in Houston, said the defense lawyers are in "a terrible predicament."
"They have to stand by and watch the person they are ostensibly charged with assisting to represent himself essentially put a noose around his own neck, and they view this as fundamentally inconsistent with their ethical obligation as lawyers," he said.
But Corn said Hasan not only has the right to defend himself, "he has the right to do it poorly" -- even to the point of asking for death.
"The defense lawyers would love to get off this case, because it becomes unbearable," Corn said. "If you imagine having to sit there, being an ardent opponent of capital punishment, watching this guy seal his own fate with every move he makes, it must be torture. But the judge can't let them off the case."
Witnesses describe horror of shooting
Hasan, an Army psychiatrist, was paralyzed by a police bullet during the rampage. He listened impassively as one of the first witnesses recounted the horror unleashed that November day at a processing center for soldiers heading to Afghanistan and Iraq.