A Defense Counsel’s Role When Defendants Desire the Death Penalty

Once again, defense lawyers are questioning their role in assisting criminal defendants in capital cases where the defendants seek their own execution.  Major Nidal Malik Hasan, who faces the possibility of capital punishment in his trial for for the Fort Hood Shootings, has been representing himself.  His former lawyers, who have been ordered to sit with Major Hasan and provide him legal assistance as he represents himself, have asked to be relieved on this obligation on the ground that Major Hasan is deliberately manipulating his trial in order to receive the death penalty.  They argue that they should be relieved under Sope insert.  Major Hasan’s actions raise controversial questions about the death penalty, and an attorney’s scope of representation and allocation of authority under Rule 1.2(a) of the Model Rules of Professional Conduct. The case is reminiscent of the infamous Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436 (1976), where the defendant, resigned to his fate desired to receive the death penalty by firing squad. To read more about Major Hasan’s military trial read the following New York Times articles by Manny Fernandez titled, “Judge Denies Ex-Defense Team’s Bid to Limit Role in Fort Hood Suspect’s Trial,” and, “Lawyer Says Fort Hood Defendant’s Goal Is Death.”

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