Is Nidal Hasan looking toward appeal in acting as own attorney?

FORT HOOD, Texas, Aug. 11 (UPI) -- Is Nidal Hasan, the accused Fort Hood, Texas, killer who insists on representing himself, trying to set up an appeal based on a claim of ineffective assistance of counsel? If so, based on court precedent, he's probably whistling in the wind.

Though rare, appeals based on claims of ineffective assistance of counsel in the military system are the same as those in the civilian courts. As is usual in the civilian courts, a different set of lawyers -- the military Defense Appellate Division -- argues the appeal.

A military judge last Thursday refused to let Major Hasan's standby lawyers limit their involvement in his court-martial.

Hasan, 42, is acting as his own attorney. The appointed standby lawyers said they asked to limit their involvement because the Army psychiatrist appears to be seeking the death penalty.

The court-martial is being held at Fort Hood, where Hasan admitted in opening statements he went on a shooting spree in November 2009 that left 13 people dead and 29 wounded. Shouting "God is Great" in Arabic, he opened fire in the fort's Soldier Readiness Center before being shot by military police responding to the gunshots. Now, Hasan may be paralyzed for life from the waist down.

If convicted, Hasan could face the death penalty, though the U.S. military has not held an execution since 1961. Several soldiers currently are on death row.

Meanwhile, the Army continues to issue Hasan his pay -- something it is required to do by law unless he's convicted and, among other things, sentenced to forfeiture of pay. If that sentence is approved by a review, the paychecks stop.

In many ways, Hasan's life represents the ultimate U.S. success story.

He was born in Virginia in 1970 of Palestinian immigrant parents. Entering the Army, he earned his medical degree at an Army medical center.

A devout Muslim, he became increasingly radicalized, culminating in his explosion of violence less than a month before he was scheduled to be deployed to Afghanistan.

In general, the U.S. Supreme Court has been tough on ineffective assistant of counsel claims.

The Sixth Amendment to the Constitution says in part, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense" -- now called the "assistance of counsel clause."

But like the Fifth Amendment right against self-incrimination, the Sixth Amendment right to counsel can be waived.

State and federal courts repeatedly have supported a defendant's right to represent himself or herself -- even if that runs the risk that victims may be questioned by those who harmed them.

But asserting an ineffective counsel claim is probably useless when a defendant has chosen to mount his or her own defense.

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel," Justice Potter Stewart wrote for the 6-3 majority in 1975's Faretta vs. California.

In a footnote -- but not in the main body of the opinion -- Stewart was even more direct: "The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.'"

Writing in the Florida Bar Journal in 1997, Angela D. McCarvy said: "Requests for self-representation and claims of ineffective assistance of court-appointed counsel present a real quagmire to the trial judges who must deal with them. Such difficulties are understandable, since the case law in these areas is voluminous, complex and at times downright inconsistent."

But the state courts also have cast a jaundiced eye on ineffective assistant of counsel claims from defendants who chose to represent themselves. For example, a North Carolina court ruled in 2007 that a "defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel."

For such claims in general, the U.S. Supreme Court in 1984's Strickland vs. Washington set the bar rather high.

In that case, David Washington pleaded guilty in a Florida trial court to an indictment that included three capital murder charges. In the plea "colloquy," he told the trial judge he had committed a string of burglaries, but had no significant prior criminal record and at the time of his criminal spree he was under extreme stress caused by his inability to support his family.

The trial judge told Strickland he had "a great deal of respect for people who are willing to step forward and admit their responsibility."

In preparing for the sentencing hearing, Strickland's lawyer talked with him about his background, but did not seek out character witnesses or request a psychiatric examination -- preventing the prosecution from cross-examining him or presenting psychiatric evidence of its own. The lawyer also did not request a pre-sentence report because it would have shown Strickland's criminal history and undercut his claim of no significant prior criminal record.

The judge sentenced him to death on all three murder counts, finding aggravated circumstances and no mitigating circumstances such as mental illness -- all three stabbing deaths occurred during robberies -- and the Florida Supreme Court agreed with the sentence. Strickland then went back to state court, contending among other things his attorney was ineffective at the sentencing hearing. When that failed, he went to federal court, where a federal judge rejected his claim.

A federal appeals court reversed.

The U.S. Supreme Court then reversed the appeals court by a vote of 7-2.

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components," Justice Sandra Day O'Connor wrote in the majority opinion. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

She added later: "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. ... The purpose of the Sixth Amendment guarantee of counsel is to ensure ... a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."

Justice William Brennan agreed with the reasoning in the majority opinion but dissented to the outcome. By that time, Brennan had come to the conclusion the death penalty "is in all circumstances cruel and unusual punishment forbidden by the Eighth and 14th Amendments. ... I would vacate [Strickland's] death sentence and [send the case back down] for further proceedings."

Justice Thurgood Marshall dissented.

"The opinion of the court [majority] revolves around two holdings. First, the majority ties the constitutional minima of attorney performance to a simple 'standard of reasonableness.' ... Second, the majority holds that only an error of counsel that has sufficient impact on a trial to 'undermine confidence in the outcome' is grounds for overturning a conviction."

Marshall said that was too vague.

"My objection to the performance standard adopted by the court [majority] is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave ... 'reasonably' and must act like 'a reasonably competent attorney' ... is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own intuitions regarding what constitutes 'professional' representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel. In my view, the court has thereby not only abdicated its own responsibility to interpret the Constitution, but also impaired the ability of the lower courts to exercise theirs."

Strickland was executed by electric chair three months after the Supreme Court ruling.