A cruiser skipper who was fired for cruelty and mistreatment of her crew will go before a Navy board of inquiry Tuesday that will recommend whether she can continue her Navy service.

A Behanna update by Army Times:

The Army Clemency and Parole Board in Arlington, Va., will review First Lt. Michael Behenna’s case on Thursday, The Oklahoman reported Monday. It will be the second time this year the board has reviewed the case. After the first review, it reduced his sentence by five years. It was not immediately clear why the board was looking at the case again. On Dec. 9, the Army Court of Criminal Appeals will hear oral arguments in Behenna’s appeal. Behenna has said he failed to receive a fair trial because an expert witness retained by prosecutors never testified, but had information that could have cleared him. The NewsOK has a fuller report including some of the details of the offenses.

LA Times reports:

Pfc. David Lawrence faces a military hearing in Ft. Carson, Colo. His parents and attorney say he showed signs of mental instability before last month’s slaying in Kandahar.

Dayton Daily News reports:

A court-martial scheduled next week in Illinois for the Air Force Materiel Command’s former top enlisted man is being postponed, an Air Force spokeswoman said Monday. No new date for the court-martial of Chief Master Sgt. William C. Gurney was immediately announced. The Air Force’s charges against Gurney include adultery, dereliction of duty, maltreatment, indecent conduct, wrongful sexual contact, failure to obey an order or regulation, and misuse of official position.

Military.com reports:

A senior noncommissioned officer with the North Carolina National Guard will be leaving the service a stripe lighter as a result of a Guard and Army investigation into his wearing unauthorized unit patches, tabs, decorations and badges.

Army Times reports:

Staff Sgt. Francisco Carrillo was a squad leader on patrol in Iraq searching for weapons and insurgents, riding in the lead vehicle of a convoy when an improvised explosive device ripped through one of the Humvees, injuring his platoon sergeant, another squad leader in his company and the gunner. That was five years ago. Today, Carrillo is locked in a battle with the Army. He says he has suffered symptoms of post-traumatic stress disorder since he returned from the deployment in 2005. The Army says he’s lying. Carrillo, who has 18 years of service, is seeking medical retirement. But a panel of doctors at Madigan Army Medical Center said the California National Guardsman with the 649th Engineer Company lied in his Fit for Duty Evaluation and faked PTSD symptoms to collect the benefits that come with medical retirement.

The Press-Register reports:

The flight sergeant on duty when Airman Cory McCord of Troy, Alabama, shot himself to death Aug. 6, faces a court martial on charges she failed to keep McCord out of a secure building at the Grand Forks Air Force Base.

Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights[.]

The following Rules are relevant to a writ.

Rule 2(b). The court has discretion to “entertain petitions for extraordinary relief,” and that would be under the All Writs Act, 28 U. S. Code Sec. 1651(a). See Noyd v. Bond, 395 U.S. 683, 695, n.7 (1969); Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998).

Rules 8 and 13. I am assuming that Mr. Jensen is not formally admitted to practice before ACCA, or any other military appellate court except possibly CAAF. Thus he would have to appear pro hac vice. I don’t have any indication that Mr. Jensen has asked for appointment of military appellate counsel to assist.

Rule 20.

If a show cause order is issued the government has 10 days to answer, and then the petitioner has seven days to answer the government’s filing.

So, the first guess, will ACCA issue a show cause order? My guess, no. Here is the language from the rule that most of us are relying on to say that LTC Lakin won’t get his requested relief.

LTC Lakin and his attorney are advertising the case on the internet and a website is being used to solicit funds for LTC Lakin’s defense (we can take issue with the purported amount, compare for example an estimate of $100,000.00 to defend PFC Bradley Manning the Wikileaks accused). Mr. Jensen’s website links back to safeguardourconstitution “For More Information Visit the Case Site.” Is the advertising for funds truthful at this point, if the advertising is not truthful at this point is LTC Lakin himself complicit in a lack of truthfulness, and if LTC Lakin is complicit in this is he acting as an officer and a gentleman? At what point, if any, and I think this question goes beyond LTC Lakin, is a client responsible for “advertising” about their case which is ongoing? At what point is an attorney responsible for the accuracy of his or her advertising about a case they have ongoing? To what extent is advertising about an ongoing case consistent with Rule 3.6 of the Army (or similar other Service rule) professional responsibility rules – AR 27-26. As we bloggers know the Army has been reluctant to publically discuss and/or release LTC Lakin’s case.

Subsequent to the 2 September 2010 ruling LTC Lakin through counsel has said publically a number of times that an extraordinary writ will be filed. To date no writ appears to have been filed. The next scheduled event is for an Article 39(a), UCMJ, hearing on 28 September 2010. So now what?

As a general principle the defense can file a writ of mandamus, prohibition, or habeas corpus to “appeal” something done by a convening authority or trial judge. The prosecution of course can use Article 62, UCMJ, to force an “appeal” of a judicial ruling under certain circumstances. The appellate court does not have to grant the prosecution its requested relief, but assuming the prosecution gets over the jurisdictional bars the court must rule on the issue for the prosecution. Is there an argument that there is an unequal access here between the prosecution and defense?

The Army Court of Criminal Appeals does not have a time in which a writ must be filed. Rule 20 addresses Petitions for Extraordinary Relief. I think it fair to say though the quicker the better. (Dwight “ML” Sullivan at CAAFLog suggests analogy to CAAF’s 20 day rule.) Either way, has LTC Lakin ‘busted’ the rule?

Upon filing a petition a brief must accompany it. The prosecution then has 10 days to file an answer.

Note on 2 September 2010, LTC Lakin was aware that the next session of court was 28 September 2010 and trial remains on the scheduled dates.

We should assume that that the quicker a writ is filed the quicker you should get the benefit of the writ if granted. Whether you will lose of not isn’t the question. When filing a writ in this situation you are asking for a remedy “sparingly exercised.”

If you have an issue you think is writable should you not file the writ at the earliest possible opportunity? If you are aware that 99.9% of lawyers knowledgeable and experienced in an area of military pretrial discovery law are saying you will be denied discovery, don’t you have your writ already written ready to be filed within the next day or so (it’s fair to allow a few days to consider the specifics of the judge’s written findings and conclusions).

If LTC Lakin asks for a delay to file a writ on 28 September 2010, he should probably expect the delay to be denied.

Will Mr. Jensen be present for the 28 September 2010 hearing?

Here is a FayObserver.com piece which documents some of the history of this case, including Michelle Theer’s abortive efforts to get a new trial.

According to court documents, witnesses for the prosecution repeatedly testified that Theer did not cooperate with the investigation and a prosecutor told the jury in closing arguments that Theer invoked her right to a lawyer when a co-defendant was arrested. U.S. District Court Judge Terrence W. Boyle dismissed that case Wednesday, ruling it included “no genuine issue of material fact.” Boyle also denied a certificate of appealability, which would be needed for Theer to file her case in a federal appellate court. Diamond was a staff sergeant on Fort Bragg when he was convicted in August 2001 of first-degree murder. He was sentenced to life in prison without parole and demoted to private.

In the appeal that was denied earlier this year, Diamond’s lawyers argued that he did not receive a fair trial because his lawyers . . . were paid in part by Michelle Theer. . . . In May, the Army Court of Criminal Appeals ruled that Brewer and Mitchell were unaware that they were paid by Michelle Theer and, therefore, no conflict of interest existed.

Here is a link to the first ACCA decision in United States v. Diamond, 65 M.J. 876 (A. Ct. Crim. App. 2007). The case was a very complete look at co-conspirators and admission of co-conspirator statements.

On 23 January 2009, CAAF took the following action.

No. 08-0365/AR. U.S. v. John M. DIAMOND. CCA 20010761. Review granted on the following issue: WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT’S CIVILIAN DEFENSE COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT. The record of trial is returned to the Judge Advocate General of the Army for remand to the Army Court of Criminal Appeals for further appellate inquiry on the granted issue. Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), shall apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

United States v. Diamond, 67 M.J. 247 (C.A.A.F. 2009).

Here is a link to the second ACCA decision in United States v. Diamond, ARMY 20010761, 2010 CCA LEXIS 66 (A. Ct. Crim. App. May 26, 2010, on remand to treat the conflict of interest issue.