[T]he defense counsels did not respect the judge’s ruling. [I]n an astounding show of contempt, [they] tried to force the judge to reverse himself by their unilateral withdrawal from the proceedings, on the apparent pretext that they were not prepared. They did not: voir dire the members challenge any member make an opening statement object to any prosecution exhibit cross-examine any prosecution witness object to any prosecution question present any defense case engage with the judge to prepare instructions to the members make closing argument object to clearly objectionable prosecution evidence present any matter in extenuation and mitigation most glaringly, they permitted appellant to make a very damaging and rambling unsworn statement without any apparent coaching or counselling whatsoever.

United States v. Galinato, 28 M.J. 1049, 1989 CMR LEXIS 488 (N-M.C.M.R. 1989).

Although we question the prosecutorial judgment in charging adultery in conjunction with an instance of sexual assault, we find the evidence is legally and factually sufficient to sustain the conviction in this particular case. Article 66(c), UCMJ, 10 U.S.C. § 866(c).

United States v. Dockery, No. 38624, n. 1 (A.F. Ct. Crim. App. 2 December 2015).

The military’s charging of adultery along with sexual assault allegations has been the topic of some derision over the years. The reason for the charge is several-fold.

• If there’s an acquittal on the sexual assault there may be a conviction on the adultery in a consensual sex case, so it’s a “win,” and they can tell people they got him on something.
• It might encourage the accused to testify.

Enough said.

§ 11. Default state of mind proof requirement in Federal criminal cases If no state of mind is required by law for a Federal criminal offense— (1) the state of mind the Government must prove is knowing; and (2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

1.People are upset because it’s odd the hearing was closed for quite a bit of time. Duh. Of course it’s closed:

But a series of contentious, closed-door hearings has delayed the case. The arguments have centered on the privacy of the alleged victim. Defense attorneys want to admit evidence about the woman’s sexual past and have sought access to medical records, including those from a psychotherapist.

It’s closed because of UCMJ art. 32 and the Rules of Evidence–all of which Congress and the President by Executive Order have directed, and which POD has called for. How then can the military be criticized for what the law, good sense, and sensitivity to the complaining witness requires?

2. It’s a paper 32–hello that’s all too common and may become even more common now that a complaining witness can refuse to testify. Duh

Protect Our Defenders weighed in on the Chubb case in May after one of the stranger preliminary hearings in the academy’s history. During the hearing to determine if there was sufficient evidence to court-martial the highly touted football recruit from Georgia, neither prosecutors nor Chubb’s attorney’s offered witnesses. The entire proceeding was handled on paper, which wasn’t made public.

In 35 years of military justice practice I’ve had (as a prosecutor or defense counsel) plenty of paper 32 drills. Who among you hasn’t? This will happen more likely to happen in sexual assault cases these days because the CW can refuse to testify. The evidence for the probable cause then becomes witness statements, emails, texts, and audio recordings. That’s the way it works–and frankly that’s what Congress wants, so it is possible to avoid fair hearings.

3. Brian Purchia, a spokesman for the Washington, D.C., advocacy group, said the prosecution’s handling of the hearing raised concern.

Really. And he has how much military justice experience? Did he not talk to POD’s ED retired judge advocate Christensen before he made this statement? Sure, it may be unusual because he does not recognize the Rules are changed as a direct result of the Congressional actions and the very advocacy of POD the organization he represents. They can put in a FOIA request can’t they. True, it may get refused for various reasons.

Manassas resident Gene McKinney, 59, was arrested last week and charged with attempted malicious wounding for an incident that happened in Pentagon City on October 25. McKinney allegedly picked up commuters from a slug line that Monday morning. He was driving north toward Washington when his passengers demanded to be let out of the car because he was driving erratically, according to arlnow.com. McKinney let them out on the 1100 block of South Eads Street, according to the site. One man took out a camera and tried to snap a photo of McKinney’s license plate. That’s when the former top soldier hit the gas and struck the man with his car, police said.

[Update] Military.com via Stars & Stripes is now reporting:

Arlington, Va., police have charged Gene McKinney, the Army’s former top enlisted officer, with intentionally driving his car into a fellow carpooler after that man complained about McKinney’s driving.

A religion watchdog group is asking the Defense Department to investigate whether the Air Force Academy has given a Christian group improper access to the campus to proselytize cadets.

This would not be the first time the AFA has had an issue with support to or enforced support of a specific religion.

In June 2005; An Air Force panel sent to investigate the religious climate at the Air Force Academy in Colorado Springs found evidence that officers and faculty members periodically used their positions to promote their Christian beliefs and failed to accommodate the religious needs of non-Christian cadets, its leader said Wednesday.

In May 2005; The U.S. Air Force said Tuesday it will appoint a task force to investigate allegations of religious intolerance at the Air Force Academy. Among the items to be reviewed will be Air Force policy and guidance concerning religious respect and tolerance at the academy, said acting Secretary of the Air Force Michael Dominguez.

In December 2005;

Four Air Force officers — all graduates of the Air Force Academy class of 2004 — have recently joined a lawsuit that accuses leaders at the academy of overtly pressuring cadets to undertake evangelical religious instruction.

See here for concerns about a recent event at Fort Bragg, and here for Soldiers punished for not attending a religious event at Fort Eustis.

Here is an article from the Air Force Law Review: ARTICLE: RELIGION IN THE MILITARY: NAVIGATING THE CHANNEL BETWEEN THE RELIGION CLAUSES.

A judge has sentenced a former university student to join the military for a post he made on Facebook that led to a lockdown at Faulkner University here. Zachary Lambert, 23, agreed to plead guilty to the misdemeanor charge of harassing communications for a message that made reference to a deadly campus attack at Virginia Tech in 2007. He originally was charged with making a terrorist threat, a felony, and placed in jail on $500,000 bond. Montgomery County Circuit Judge Tracy McCooey handed down a suspended three-month sentence and two years of probation, telling Lambert that he must join the military as a condition of his probation.

Query? If the military isn’t giving moral waivers, and if the military is trying to weed out “terrorists” what’s the chances the military will accept this person? It’s certainly been a long time since we’ve heard of these type of “conditions” related to civilian cases.

The Department of Defense is investigating whether 80 wounded American service members in Iraq were improperly used as subjects in a test of a possible treatment for brain injuries, according to the Pentagon’s Office of Inspector General. In addition to the defense investigation, the US Navy is conducting an inquiry into alleged research misconduct and potential violations of the Uniform Code of Military Justice, according to Jennifer Plozai, a spokeswoman for the Pentagon’s inspector general, in response to questions from the Globe. She declined to spell out the nature of the alleged misconduct.

tip Blogcritics.org

A former Navy officer who was serving time for hiring someone to kill his wife was killed in a Kansas military prison a month before he was supposed to be released. Officials at Fort Leavenworth say 54-year-old former Navy Lt. Cmdr. Michael Fricke was beaten with a baseball bat by another inmate on July 24. He died Thursday after his family authorized taking him off life support. Fricke had served 16 years of the 30-year sentence for his involvement in the murder of his wife, Roxanne, who was shot to death the parking lot of a Kempsville supermarket in 1988. Fricke pleaded guilty during his 1994 court-martial to avoid a possible death sentence. He said he agreed to pay a man he had been stationed with at Oceana Naval Air Station $25,000 to find someone to kill his wife.

United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000).

Here is subsequent action at NMCCA, in United States v. Fricke, NMCCA 9601293, 2004 CCA LEXIS (N-M. Ct. Crim. App. April 9, 200), rev. granted, 60 M.J. 332, 2004 CAAF LEXIS 914 (C.A.A.F., 2004), aff’d, 60 M.J. 332, 2004 CAAF LEXIS 907 (C.A.A.F., 2004).

A predecessor panel of this court affirmed the findings and sentence in the appellant’s general court-martial. United States v. Fricke, 48 M.J. 547 (N.M.Ct.Crim.App. 1998). Afterwards, our superior court affirmed our decision as to the findings, but set it aside as to the sentence. United States v. Fricke, 53 M.J. 149, 155-56 (C.A.A.F. 2000). The Court of Appeals for the Armed Forces (CAAF) also directed that the case be remanded to the Judge Advocate General for further proceedings in accordance with its decision and United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967) [*2] on the remaining issue of unlawful pretrial punishment, after which the record was to be returned to this court for review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c). The proceedings directed by CAAF have been conducted, and the record is now before us for completion of review. Since the findings in this case have already been affirmed by our superior court, our review on remand is limited to the issue of unlawful pretrial punishment, specifically “the conditions actually imposed on appellant during his pretrial confinement and the intent of detention officials in imposing those conditions.” Fricke, 53 M.J. at 155; see United States v. Quiroz, 57 M.J. 583, 586 (N.M.Ct.Crim.App. 2002)(citing United States v. Riley, 55 M.J. 185, 188 (C.A.A.F. 2001)). We have carefully reviewed the entire record of trial, including the DuBay proceedings held pursuant to the mandate of our superior court. We have also considered the pleadings and supplemental briefs of both parties. Finding that the record does not support the appellant’s assertions of unlawful pretrial punishment, we conclude that the approved sentence is correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant occurred. Art. 66(c), UCMJ.

No. 10A56 Title: Orly Taitz, Applicant v. Thomas D. MacDonald, Colonel Garrison Commander, Fort Benning, et al. Docketed: Lower Ct: United States Court of Appeals for the Eleventh Circuit Case Nos.: (09-15418) ~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ Jul 8 2010 Application (10A56) for a stay, submitted to Justice Thomas.

The officer refusing Army orders until Barack Obama documents his eligibility to be president and commander in chief is hitting the airwaves tomorrow to answer questions about his challenge to the president. Lt. Col. Terry Lakin is scheduled to be on the G. Gordon Liddy show tomorrow from 10-11 a.m. EDT.

As a conspiracy theorist I think this is a plot all intended to create a Wuterich issue thereby delaying any action while litigation is ongoing about out-takes. I did check, and there is no definition in the DSM IV for guano loco (but a change in the soon to be released DSM V may be expected perhaps). [n.1]

“Rather than contesting the suit,” Day wrote, “the Army took the highly peculiar step of revoking the major’s deployment order, suggesting that the Pentagon generals are not entirely confident that they can demonstrate the legitimacy of their purported commander in chief. “The Pentagon’s decision to back down rather than risk exposing Obama’s birth records to the public means that every single American soldier, sailor, pilot and Marine now holds a ‘get out of war free’ card.”

The major – referring to the abortive case of Major Cook — was on voluntary orders. He could have just as voluntarily asked to revoke them at any time up until the day before going. He chose to express his request to revoke the voluntary orders through litigation. So why not just revoke the orders. That’s not backing down.

A spokeswoman for the case, Margaret Calhoun Hemenway, told WND that whatever the “assignment” amounts to, Lakin’s access privileges were revoked, his computer was confiscated and he “is not permitted to support his Hippocratic oath … and take care of the troops as a doctor and a surgeon.”

This is standard procedure for anyone who is placed in a disciplinary status and won’t be working in the Pentagon anymore. Then of course, if it was a government computer the government is entitled to take it back. It’s organizational property, has to be accounted for, and LTC Lakin doesn’t need it anymore. There’s nothing sinister about that. He had the opportunity to practice his Hyppocratic oath, and along with his oath as a commissioned officer. He’s given both up.

n.1. The Urban Dictionary defines guano loco variously:

Crazy, in fact probably totally insane. Acting in the manner of Tom Cruise jumping on Oprah’s sofa or Joaquin Phoenix on the Letterman show. Hearing voices and imagining things that haven’t happened or people saying things that they haven’t. Possibly caused by some recent trauma, however more than likely always present just brought to the surface in times of high emotion.

His Greeley relatives are putting distance between themselves and his birther campaign. Lakin’s father Frank told the Greeley Tribune Friday that his son’s video wasn’t representative of the family. “This does not reflect the opinions or the attitude of the family by any means,” he said. “We’re Obama supporters.”

A posting at Buzzflash.com asserts that LTC Lakin is also a member of the Tea Party.

A comment from LtCol Christopher Matthews, USAF (Ret.) on CAAFLog

[M]ilitary appellate courts adopted the de facto officer doctrine long ago — see, e.g., United States v. Jette, 25 M.J. 16 (C.M.A. 1987); United States v. Watson, 37 M.J. 166, 168 (C.M.A. 1993); and United States v. Brown, 39 M.J. 114 (C.M.A. 1994). CAAF not long ago denied petitions on a pair of Air Force cases where we upheld convictions by courts-martial convened by an officer ineligible to assume command as the GCMCA, so I believe the law on this point to be unchanged.

An article at Huffington Post posits that the ultra conservatives are “taking advantage” of military people such as LTC Lakin, as part of an all out assault on the military – a strange position for the far right who once accused those who didn’t support the wars in Iraq and Afghanistan as being traitors.

Why put this man’s career in jeopardy over a lie? For the same reason Glenn Beck is taking advantage of the Special Operations Warrior Foundation to pay for a hate filled rally or Sean Hannity is scamming wounded warriors and their kids.

(There have been a number of reports about the extravagant expenditures of Sean Hannity that are charged off to the charity. I believe the Salvation Army has an overhead of about 4%, the rest of their donations going to the charity work.)

The Colorado Independent reports that:

Terry Lakin, the Army Doctor who has refused orders to deploy to Afghanistan, hasposted online the letter he wrote to Pres. Obama last week explaining his decision.

If he is correct, then all orders are illegal since President Obama was sworn in? Thus an additional charge at his court-martial (in addition to Article 88, UCMJ, Article 92, UCMJ, for unlawful political activity) should include theft perhaps or wrongful receipt of government funds or some other wrongful taking – like his pay checks? Military personnel are routinely prosecuted for taking and keeping BAH they are knowingly not entitled to and failing to report the matter?

Query. If President Obama is not lawfully president, who is? Well is it not Vice-President Biden? There has been no issue raised that VP Biden is not lawfully elected. Either way, military orders, assuming they come from the president qua president, must come from VP Biden then. So LTC Lakin is getting lawful orders. See, we can all make silly arguments about this.

Here’s an interesting piece from the Guardian in the UK (a liberal paper):

Lakin’s outburst of birtherism should not be seen in isolation. Instead, it’s further evidence that rightwing hate, aided and abetted by leading Republicans, has gone mainstream. Remember when people, especially conservatives jumped on DHS for issuing a warning about extremism.

The first warning came a year ago, when the department of homeland security predicted a rise in rightwing extremism fuelled by economic calamity and the election of our first black president. News of the report, and especially about a warning contained therein that military veterans might be pulled into the movement, set off criticism among conservative bloggers. Yet it proved prescient.

The Orange County Register reports that:

Orly Taitz has been dealt another legal loss in her battle to prove President Barack Obama is not qualified to be president, as a federal appeals court in Atlanta has upheld a judge’s $20,000 sanction of Taitz. In fining Taitz in October, U.S. District Court Judge Clay D. Land wrote that one particular Taitz response to the court “is breathtaking in its arrogance and borders on delusional. She expresses no contrition or regret regarding her misconduct. To the contrary, she continues her baseless attacks on the Court….” The March 15 ruling by the 11th Circuit Court of Appeals says, “We have fully considered Taitz’s arguments. We find them unpersuasive and therefore affirm the district court’s sanctions judgment.”

A woman had a blood-alcohol level of .708 percent, possibly a state record, when she was found earlier this month behind the wheel of a stolen vehicle parked on Interstate 90. A state chemist recalled a sample that tested .53, but nothing higher, in his more than 30 years on the job. Dr. Robert Looyenga, who recently retired from the Rapid City Police Department’s forensic laboratory, told Sondreal that the highest blood-alcohol sample he tested measured .56 percent. Sondreal’s research indicates that a blood-alcohol level of .40 is considered a lethal dose for about 50 percent of the population.

reports the Rapid City Journal.

A former commander in the Tennessee State Guard has lost an appeal to overturn his conviction for trying to provide his soldiers with homemade machine guns for possible use in defending the state. At trial and in his appeal, Mr. Hamblen argued that he and his soldiers had a Second Amendment right as members of the state militia to possess military-grade weapons. He said Tennessee’s state guard arsenal included only 21 M-16 rifles for 3,500 volunteer soldiers. Concerned that his unit, the 201st Military Police Battalion, might get called into active duty, Hamblen obtained gun conversion kits to make semi-automatic rifles into fully automatic rifles. At least one machine gun was used in a training exercise.

The court’s opinion in Hamblen v. United States, has more facts of interest.

The all-volunteer State Guard is one of four organizations within the Tennessee Department of the Military and is authorized by Tennessee statute. The State Guard’s mission is to augment the Tennessee National Guard, and it typically performs ceremonial duties. The State Guard is authorized to become an armed force if it is activated by the governor of Tennessee. Although it has been called into service, the State Guard has not recently been activated. If activated, the governor of Tennessee is authorized to obtain weapons needed to equip the State Guard. State Guard policy prohibits members from either keeping State Guard weapons in their possession or carrying their own individual weapons in the course of their duty. Hamblen never discussed his machine gun possession with his superiors at the State Guard, and no law enforcement officials or State Guard superiors knew of Hamblen’s machine guns. Hamblen admitted that no one at the State Guard ever ordered or even authorized him to obtain any weapons for the State Guard. He also admitted that he knew that his possession of the machine guns violated the statutes under which he was convicted. He believed, however, that he was authorized to possess the machine guns because the U.S. Constitution provides an exception to gun control laws and gives people the right to possess militarily useful weapons for an armed force like the State Guard.

The Hamblen decision interprets and applies Heller.

State Department investigators say Chief Engineman (SW) Arturo Puente at Jacksonville’s Mayport Naval Station has used a false name for the last 22 years while working at U.S. embassies in Rome and Panama, according to the Florida Times-Union newspaper.

Navy Times reports. No indications of a court-martial or any UCMJ violations.

Here is an update from the Washington Post. Apparently the Italians didn’t put much stock in the U.S. arguments. The lieutenant colonel along with 22 others has been convicted.

An Italian court on Wednesday convicted 22 CIA operatives and a U.S. Air Force colonel of orchestrating the kidnapping of a Muslim cleric in Milan in 2003 and flying him to Egypt, where he said he was later tortured.

Army recommends ‘birther’ for promotion Army ‘birther’ Major Stefan F. Cook gets a job at Guantanamo Bay, Cuba

Both items are reported in examiner.com. So, those of us who argue the various officers lack officership and leadership are proved wrong, sorry to say.

She includes as argument

[C]ounsel appeals all aspects of this Court’s Order in Document #28, wherein the Court proved its pervasively extreme and outrageous (extrajudicial) prejudice and bias against the undersigned counsel[.] Judge Land’s remarks amounted to nothing short of political lynching, which turned into feast and celebration by the media mob.

No remorse there; and wasn’t she the one who has been encouraging the media attention?