If correct he is now Mr. Lakin. Unlike a retiree who retains her commission, or an honorably discharged officer who may use the honorific, one who is dismissed by court-martial loses the privileges of rank, including being addressed by her rank.

Query, if he continues to refer to himself as a lieutenant colonel, and gains money from the use of the title, does he violate the Stolen Valor Act? The current act is before the Supreme Court in United States v. Alvarez, No. 11-210. I’ve linked to SCOTUSBlog so you can read all the materials if desired. But the Congress has before it the Stolen Valor Act of 2011.

Whoever, with intent to obtain anything of value, knowingly makes a misrepresentation regarding his or her military service . . .

Dwight will be blogging a little later and we’ll be on RealityCheck radio at 2100.

Remember this phrase, “You have had your chance.”

Suffice it to say that LTC Lakin got through a tortuous providency inquiry on the orders violations.

After the prosecution case I’m satisfied the prosecution presented substantial evidence on the missing movement, that the military judge will not grant a 917 motion, and if the prosecution witnesses are believed LTC Lakin will be convicted of missing movement.

“You have had your chance” is a comment from LTC Lakin to COL Roberts, it will be a sentencing theme for the prosecution.

More at Wild Nut Daily.

McInerny admits he would have probably given different advice. His point being that the Army would not allow him to be tried fairly.

Question, what would McInerny have done if he were GCMCA in this case? Is he saying that he would not have referred the charges to trial? That he would not take any adverse action?

LtGen McInerny predicts the case will be reversed on appeal.

Mr. Boyles tells us he doesn’t know any law, but the military judge’s findings of fact and conclusions of law are “very thin.”

More references to “kangaroo courts.”

The Post&Email has been following LTC Lakin and most of the other presidential eligibility cases. Recently they ran a piece about some “demonstrations” in Arizona in favor of Congress stepping in to stop the court-martial. A recent comment had this to say which may qualify for a humor in military justice posting.

I very much hope that Miss Taitz is going to attend and somehow convinces LTC Lakin to fire that wishy washy attorney Neal Puckett and let her take over the case. I have listened to Puckett on a couple of radio shows and he is already giving up and saying Lakin will be found guilty. He will not even say that Obama is not eligible. Why Lakin hooked up with this loser I will never know. He must be getting bad advice from Ms Hemenway or Gen. Vallalley. If Taitz were running this case she would challenge Judge Denise Lind from the get go and get her lying behind off the case. Puckett has said to WND that Lind is a great Judge and ruled correctly. I suspect Puckett is a paid plant who is doing his best to make sure Lakin is locked up for many years – at least as long as Obama is in office.

It would seem LTC Lakin’s supporters are equally uninformed about military law as they are about constitutional law. That said, let’s hope the trial next week proceeds with the decorum expected in any court-room, let alone a military court-room.

Note that in the second part Neal is soliciting funds NOT for Lakin’s defense, but for his life after the military.

According to Gen Valleley the court-martial process is corrupt, Military Judge Lind and the generals above her should be court-martialed for allowing the corruption. He describes Military Judge Lind as the “Kangaroo court judge,” in this “kangaroo court.”

Apparently he’s trying to “light a fire” under the current defense team to go full NBC.

Further guests in support of LTC Lakin are expected to appear over the coming days. But he did not follow up on the statement yesterday that Boyles was trying to get LTC Lakin on the show in the AM.

For some reason there is some concern that the court will be closed to the public. That’s not going to happen. I think they may be confused about being an observer at a court-martial and holding a demonstration on a military installation.

They continue the failure to understand that even if a suitable birth certificate were produced LTC Lakin’s case would still proceed to trial.

Lieutenant Colonel Terrence Lakin, a distinguished Army flight surgeon, is “certain” to be convicted of disobeying orders, according to his lawyer, Neil Puckett.

Notice he does not apparently address the missing movement. Maybe the “specific” movement issue is a winner? See below.

“Based on the evidence available, his conviction is certain,” Puckett told WND. “He has no affirmative defense for the offenses he committed.”

Ha, ha. Maybe what’s done is to lull the prosecution into a false sense of security.

“LTC Lakin is a doctor, not a lawyer,” said Puckett. “He thought if he were to ask that question of the military courts, after being rebuffed in all other avenues, he’d get his answer. What he has discovered is that the military justice system cannot produce the answers to those questions. He could not have known, he was given inadequate legal advice. The military justice system is set up to help commanding officers maintain good order and discipline. It can’t make victims whole, it can only punish wrongdoers. He’s very disappointed in the system.” “. . . LTC Lakin is left to speak for himself and defend himself. It’s up to him whether he wants to testify in his own defense, said Puckett. Puckett would not reveal Lakin’s decision, or any other details of his defense plans. He predicted that Lakin would end up, at worst, convicted of two violations of orders, be dismissed from the service, and spend a year in confinement.

Will the new defense counsel voir dire the military judge and challenge her or ask her to recuse herself? If this is to be a members trial, then I think she can clearly say the right words in response to a voir dire and not recuse herself and not to have been found in error on appeal. But, what if LTC Lakin elects a judge alone trial? Maybe that’s different (unless it is part of a PTA)? Implied bias can be a reason to challenge a military judge just as much as members. Remember the Marine case from some years ago, where the SJA got heavily involved in trying to remove the MJ because of her alleged relationship with the defense counsel.

LTC Lakin’s brother Greg is a lawyer as well as a doctor. There is an interesting comment:

Greg stated that he has not received any response to his letters and is concerned the Army will simply take the easy way out by avoiding the issue and simply lock up his brother. He said based on his experience as a prosecutor in situations like this where there is no case law, “Judges go in with a pre-determined idea how they are going to decide it and take case law and policy statements to say whatever they want. There is no magic law that supports either position.”

Unfortunately for Greg and LTC Lakin there is plenty of case law directly on point. The problem is that it is against LTC Lakin on the “birther” issue and LTC Lakin and his supporters can’t accept that. There may be legal and fact issues with the prosecution proving the charges, but that is completely unrelated to a president’s eligibility for office.

Also, I believe this is a factually inaccurate statement:

Military Judge, Denise Lind, has ruled that Lakin will not be able to present any witnesses or documents for his defense and will not be able to explain his reason for disobeying orders at the court-martial.

He can present as much admissible evidence as he likes under R.C.M. 1001, including witnesses. Judge Lind has not prohibited him from stating his reasons for disobeying orders. United States v. Grill and other cases make it clear that an accused’s unsworn statement is relatively unlimited.

And TPMMuckraker has this piece.

In the lead-up to the court martial, the American Patriot Foundation, the group that set up his legal defense fund, launched “Terry Lakin Action Week,” and invoked Nuremberg to argue Lakin’s case[.]

With Congress back for the “lame duck” session we are urging Terry’s advocates to make calls to Capitol Hill- and to newly elected Members of Congress- during the week of Nov 15-19 to urge them to speak up for LTC Lakin and to provide feedback on the response to those calls. Remember that the U.S. Congress works for you- and that Members have a certain obligation to respond to constituent inquiries- but please be polite and respectful in advancing your point of view.

This is a reminder that LTC Lakin has not yet made some statement refuting his belief about the President’s eligibility or the birther movement. That would not be completely expected at this point and I would anticipate his counsel have told him not to make any more public statements.

Were LTC Lakin to have remained with his former defense counsel, the TLAW, would seem to be another aggravating step in his contumacy. However, he did change lawyers, not soon enough, but because of that I’m not certain the current efforts of APF should be attributed to LTC Lakin. Rather, this shows how the APF and others have taken advantage of him. The birthers still don’t understand the military justice process. They keep to the talking point that if only the president would release his birth certificate it would be all over. Maybe, but it was and is too late for LTC Lakin. He’s in a lose lose situation. If the president’s eligibility were proved, LTC Lakin’s lost; but so too if the president wasn’t eligible.

Right now the prosecution has a standard prosecution case that should be fairly straight forward to make and prove. So long as they continue to take the KIS approach to the case all should go well, LTC Lakin will be convicted and there will be a sentence. That is unless the defense can use what little leverage they have to negotiate a PTA. Remember, a plea of guilty is a first sign and a first step toward rehabilitation.

CPT Connie Rhodes sort of did that when she withdrew her civil case and went on deployment. (It would be interesting to know how she fared. Anyone know?)

His previous civilian attorney complicated his case and is partially responsible for two of these charges by advising LTC Lakin to refuse to report to his superior officer.

I posted a while back about the TMLUTB defense. I think the two charges referred to above are the harder on which to establish a TMLUTB defense. I think it would be harder to convince members that the order to report needed the advice of counsel. But . . . .

I and my colleagues frequently get calls from our clients under investigation or pending charges who are told to report to the commander. The client wants to know what to do. “Don’t go” is the wrong advice. The basic advice is to go, because otherwise it is an orders violation. What you then tell the client is to remind the commander you are represented by counsel and have nothing to say about the allegations. Oftentimes a quick phone call or email can resolve what the meeting is about and serve as a reminder about impromptu interrogations. I suspect that’s the advice the current defense counsel would have given, and possibly they might have gone to the meeting with LTC Lakin.

I stick by my analysis that the defense won’t work. As to mitigation under R.C.M.1001, maybe. But I think that only works up to a point.

The defense team is now working to minimize the damage caused by this inappropriate legal advice and return LTC Lakin to his family quickly and with his medical career intact.

Members of Congress Memo–What to Tell Your Constituents in Answer to Obama Eligibility Questions

Fitzpatrick was arrested in April after he interrupted a closed door grand jury hearing in an attempt to make a citizens arrest of jury foreman Gary Pettway. Fitzpatrick felt Pettway and the jury was illegally blocking his attempts to indict President Obama. Fitzpatrick has said he believes Obama is not an American citizen and is serving illegally as president.

Reports the AP:

Fitzpatrick is charged along with Darren W. Huff, 40, a former militia member from Dallas, Ga., accused of inciting a riot at the Monroe County Courthouse in April while coming to Fitzpatrick’s defense after Fitzpatrick’s intrusion on the closed grand jury session in Madisonville. Huff, who also faces related federal charges, was among about a dozen armed people who gathered at the courthouse. Records show Huff had said that he and others planned to take over courthouse in Madisonville and arrest “domestic enemies of the United States engaged in treason.”

The Post & EMail has had a series of “interviews” with the retired LCDR about his own case. Reading his interview make for light reading on a dreary day in much the same way as Lewis Carroll’s Through the Looking Glass is a good read. The parody of the the queen of tarts is just too cute.

Now it seems that the retired LCDR is in violation of the civilian courts version of R.C.M. 804. The Monroe County Advocate reports:

A man who is so bound and determined to take President Obama to court that he once made his way into a closed grand jury session failed to appear in Monroe County Criminal Court Friday morning. Circuit Court Clerk Marty Cook said Fitzpatrick was sent notice that he was supposed to be in court Friday, but he did not show by the 10 a.m. start time. Blackwood issued a capias for Fitzpatrick’s arrest and ordered him to be held on no bond when he is picked up.

He confirmed to WND that there will be new directions for the defense, but could not elaborate. “All I can really say is the case is going to be handled differently from here on out,” he said. He said “all possible courses of action” will be reviewed within the military justice system. Puckett confirmed that the judge in the case, Denise Lind, “rendered the proper legal ruling” regarding access to Obama’s birth and eligibility evidence. “She was right on the facts and right on the law,” he told WND. He hinted about his plan of defense. “All those issues concerning the president’s eligibility to hold office are completely irrelevant as to whether Lt. Col. Lakin was issued lawful orders and whether he obeyed them,” he said.

In facing court-martial, LTC Lakin is just the latest victim of the determined effort of the President not to provide simple proof of his eligibility under the constitution to hold office.

Thanks Dr. Conspiracy for catching that.

The writ was denied today. A straight line standard denial [thanks to CAAFLog for a copy].

1. Mr. Jensen was excused from further participation in the case at the specific affirmative consent of LTC Lakin, because he’d been “discharged.” See R.C.M. 506(c).

2. Neal Puckett formerly entered his appearance.

3. Mr. Puckett asked for a continuance because he is appearing in United States v. Wuterich, at Camp Pendleton, CA, beginning 2 November 2010.

4. Trial was continued to 14-16 December 2010.

5. The judge indicated that the defense had raised an issue with Specifications 3 and 4, Charge II, indicated that would be taken up later, and referred counsel to United States v. Jones.

6. United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010) is a recent case on multiplicity and LIO’s. A quick look at the specifications indicates that they could be the same offense charged twice and potentially multiplicious – under pre-Jones case law.

Next court event: Wednesday, October 13 at Ft McNair- 12:00 pm Wednesday’s court appearance will address LTC Lakin’s change of counsel and should be only a brief session. Fort McNair is located at 4th and P streets, SW, near the Waterfront/Marina. Some landmarks are the Waterfront Metro, the EPA building at Waterside Mall, Arena Stage. Use the P Street Entrance to enter the installation.

It is unclear what role if any APF will continue to have in this case. The website and a recent email indicate a role limited to publicity for LTC Lakin, his case, and the birther issue. See APF still ‘in the fight’ and apparently LTC Lakin intending to stay the course, and compare with the current site. The United States Patriots Union is now apparently in the game with their four ‘White Papers’. I am labelling them the nativists. While APF has a focus on the birth certificate, the USPU argues the APF position is too narrow and has a focus on the natural born aspect of presidential eligibility as well. Neither theory is helpful to LTC Lakin. Neither theory was helpful before he disobeyed orders and neither is relevant now. Neither theory will ever be relevant to a defense against the current charges. LTC Lakin is in a bind.

I would suspect that the new defense team will bilge the birther/nativist theory. So the question becomes what might be their strategy or approach. I would imagine efforts to avoid or remove this case from trial might be one. Thinking outside the box (or outside the schoolroom solution) is vital. But despite the thinking, can it be done, can a viable defense be fashioned for LTC Lakin.

Let’s assume for the moment that the government feels they must proceed to trial regardless of any attempts to negotiate a diversion or other damage control. This is not a bad decision on the government’s part as the case currently sits. LTC Lakin is condemned by his own words before and after his decision to disobey orders and miss movement. The main hurdles were disposed of at the motions sessions. The difficulties in getting to trial now would be largely administrative to include making sure there are enough members available to form a panel. It is unlikely MDW would use lieutenant colonel’s because of LTC Lakin’s seniority by date of rank, although who knows. Besides, LTC Lakin might decide to go judge alone – with COL Lind (currently). Or the parties might come to a pretrial agreement.

Let’s further assume no pretrial agreement and a contested case. Are there any potential defenses from a defense counsel perspective?

Throw the lawyer under the bus (TMLUB) seems to be a current favorite. Whether that will get relief will be a different question. By that defense I mean a “my lawyer (Mr. Jensen) told me the orders were unlawful and that I could disobey them. I reasonably relied on his advice and I must be found not guilty. Dew Process over at CAAFLog raises the question of “acting on the advice of counsel,” citing to some federal court cases as being a defense to some or all of the charges and also use of a Maynulet approach.

Let’s start with R.C.M. 916(l)(1).

(1) Ignorance or mistake of law. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.

The Discussion to the rule then talks about some situations that could arise. The Discussion states two items of potential interest.

[M]istake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency.

On the other hand, reliance on the advice of counsel that a certain course of conduct is legal is not, of itself, a defense.

Note that the courts have held that the Discussion portion to the rules for courts-martial is not binding. See e.g. United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001); United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008)

It is well settled in civil and military law that mistake of law is generally not a defense to criminal conduct. R.C.M. 916(l)(1) states the following: “Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.” See also Lambert v. California, 355 U.S. 225, 228 (1957).

United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010),

DewProcess points to Maynulet.

WHETHER THE MILITARY JUDGE ERRED WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF MISTAKE OF LAW.

68 M.J. at 375.

The appellant was convicted of assault with the intent to commit voluntary manslaughter as a ‘mercy’ killing. The appellant based part of his argument on the ROE training given in a session “presided over by operational law attorneys, brigade trial counsel, and other judge advocates.” Appellant’s defense then hinged on convincing the members that he believed the legal training he was given allowed for his conduct and that he was acting consistent with that training. In arguing for an instruction this was the part of the Discussion alluded to:

During a colloquy with the military judge, he explained that “mistake of law may be a defense when the mistake results in the reliance on the decision or announcement of authorized public official or agency.” Later during the same colloquy he stated: [W]hen Captain Maynulet was told that this guy was going to die and there was nothing that could be done, right, he was guided not by care of the wounded, not to shoot somebody who was out of the battle due to sickness or wounds, but he’s guided by preventing unnecessary suffering, and that’s what was taught at the briefings, and that’s what’s in the law.

In civilian practice, this defense is more generally stated as a “reasonable[e] rely[ance] upon an erroneous official statement of the law.”

68 M.J. at 3756-376 (emphasis added).

Ultimately CAAF held that there is was no evidence that a mercy killing is considered lawful, that even if it was lawful that the appellant received no such an instruction, and there was no evidence upon which a reasonable person could consider the training authorized or counseled mercy killing.

Just as in Maynulet there is no evidence for LTC Lakin that anyone in an official position gave him anything but a clear understanding of what the law and his obligations were.

My past experience with this phrase from the Discussion happened in October 2003 in Iraq. The client was a squad leader accused of personally assaulting civilian detainees, conspiracy, encouraging or letting his Soldier maltreat detainees, and wilful dereliction of duty. The military judge allowed defense testimony that during the pre-deployment ROE briefs the battalion commander appeared to encourage and approve assaultive behavior. The platoon leader and another witness testified to being present at the briefing; the that commander held up the ROE card; and that the commander several times stamped his foot and said that the ROE were on the card but that they should kill the b………’s. The judge did not give an instruction. But I was allowed to argue the issue. Ultimately the client was acquitted of everything except negligent dereliction in failing to supervise his Soldiers. (A jury nullification is a likely reason.) That of course was in the very early days of misconduct cases in Iraq. And as a member told me later, “it was a very very difficult decision.” Unlike my client or Maynulet, I do not see a situation where LTC Lakin can take advantage of a “I was told by an official” defense. Because as he himself seems to say in his various documents and chronologies, the advice he was getting from responsible government officials was that the orders were lawful and he should follow them. It seems his unwillingness to accept advice is what got him in trouble. Basically he seemed to be seeking the answer he wanted rather than the right answer. So the Maynulet ‘problem’ for LTC Lakin is who the messenger was. Evidence seems to point to Mr. Jensen as being the messenger, not a government official or even a government lawyer. See e.g. the video’s a Mr. Jensen’s former website. The timing is unclear, but a civilian practitioner very experienced in military law had told LTC Lakin his defense would not work.

The timing could be important. If the advice was given prior to the refusal of orders that would further damn LTC Lakin. If the advice was given after the refusal then it is of insignificant value.

So let’s move on to a TMLUB defense. But before doing so a necessary caution and an experience. Some years ago I had a client who was under investigation for a very serious charge. At the time he had a retirement date. During the course of the investigation and pre-preferral he made multiple visits to the personnel office variously requesting or demanding that he be retired. His thinking was that if he retired he would no longer be subject to jurisdiction, or that the government wouldn’t bother, and that he was doing that on the advice of his military counsel. Ultimately he was charged with several very serious offenses and also trying to avoid trial by demanding his retirement. His defense to the avoiding trial charge was, “my lawyer told me to do it; said it was OK.” Now here’s the caution present in the TMLUB defense not present in the government agent advice defense. For either “defense” you have to put on evidence. Assuming you are using the defense and the issue is “intent,” how do you present evidence as to what the accused was thinking and why he took those actions? Well, the accused has to testify does he not? And once the accused decides to testify does he not waive the attorney-client privilege, albeit it in a limited fashion, as to what was said. See e.g. Pritchard v. County of Erie, 546 F.3d (2d. Cir. 2008). So, if LTC Lakin wants to use a TMLUB defense must he testify and thereby waive the privilege? Of course counsel can object, but I suspect the issue would be waived (as it happened in my case). So too, that means that Mr. Jensen could be subject to testimony or deposition? Or he might even decide to appear voluntarily on behalf of LTC Lakin. Now wouldn’t that add some interesting issues and perspectives. Would this be enough to get some bargaining leverage? Right now LTC Lakin seems to need bargaining leverage?

LTC Lakin appears sufficiently informed about the law. He himself admits that he complained in writing, was denied, and was knowingly disobeying. There appears to have been ample opportunity for him to know the law. In fact some of his own supporters agree that what LTC Lakin did was knowing and deliberate. See e.g.,

These are not the words of an ill informed man, or someone who did not know where his actions might lead. No, these are the words of someone who with full knowledge and composure embarked on a course of action so few would dare to contemplate.

obamareleaseyourrecords.blogspot.com.

It is with reference to white collar crimes, tax crimes, and union cases that Dew Process raises an interesting point about specific intent crimes (such as missing movement by design), and the TMLUB defense.

It seems to me that a challenge would have to be made to R.C.M. 916(l)(1) as unconstitutionally depriving LTC Lakin of the right to present a defense. But I’ll leave that aspect to someone else. Let’s assume for the moment that the courts comment in Maynulet does leave open a possible partial defense. In federal district court there is a defense to a specific intent offense

Because “good faith reliance upon advice of counsel … establishes a defense” to specific intent crimes, United States v. Hansen, 249 U.S. App. D.C. 22, 772 F.2d 940, 947 (D.C. Cir. 1985), such as § 501(c), appellants assert that the jury should have been given an instruction that good-faith reliance on advice of counsel was a defense to embezzlement. A defendant is entitled to an advice-of-counsel instruction if he introduces evidence showing: (1) he made full disclosure of all material facts to his attorney before receiving the advice at issue; and (2) he relied in good faith on the counsel’s advice that his course of conduct was legal. United States v. Lindo, 18 F.3d 353, 356 (6th Cir. 1994). The district court is required to give this instruction “if there is ‘any foundation in the evidence’ sufficient to bring the issue into the case, even if that evidence is ‘weak, insufficient, inconsistent, or of doubtful credibility.’ ” United States v. Duncan, 850 F.2d 1104, 1117 (6th Cir. 1988) (quoting United States v. Phillips, 217 F.2d 435, 443 (7th Cir. 1954)).

United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997)(emphasis added).

United States v. Kottwitz, the other case suggested by Dew Process is a reliance on a tax preparer case.

Here’s in interesting case which involved the counsel’s “conflict of interest” affecting the representation. Witt v. United States, No. 86 Civ. 7766-CSH, (S.D.N.Y. February 3, 1987).

And here’s an interesting case where the accused failed to appear before the grand jury.

Regarding the willfulness element, the court relied on Licavoli v. United States, 111 U.S. App. D.C. 11, 294 F.2d 207, 209 (D.C. Cir. 1961), finding that willfulness under the statute merely requires a deliberate intention to do the act and that advice of counsel does not immunize that simple intention. Id. The court noted that other opinions supported this legal conclusion, citing to United States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992), and United States v. Goldfarb, 167 F.2d 735, 735-36 (2d Cir. 1948).

United States v. Myers, 302 Fed. Appx. 201; 2008 U.S. App. LEXIS 24786 (2d. Cir. December 9, 2008)(unpublished op.).

Based on the above I suspect LTC Lakin and his counsel would be barking up the wrong tree. But, that question might have more resonance than a claim of IAC.

Most if not all of the IAC cases relate to post-preferral effectiveness. DMLHS points to United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992) . In that case the claim was about the civilian counsel misadvising the accused about accepting a pretrial agreement because of personal politics. Ultimately Lonetree cried uncle and negotiated himself a reduction of five years on his sentence. That’s still not close to what might have been on offer of less than 10 even earlier. Other cases of post-preferral and pretrial IAC include United States v. Denedo (immigration impact of guilty plea) and United States v. Miller (sex offender registration).

Is there an element of good faith reliance on the lawyers advice, even if the lawyers advice is wrong. If so, there may be evidence the prosecution can use to rebut a reasonable reliance. Thanks to safeguardourconstitution for being back on line and the availability of some ‘historical’ documents potentially relevant to the defense. Let’s put them in chronological order. Can LTC Lakin have been acting in good faith by accepting and following Mr. Jensen’s advice.

Fall 2008 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Sought information.

11 June 2009: Sought advice through company commander who advised him of the right to submit a Congressional complaint. Note a CG complaint is protected under 10 U. S. Code 1034, from retaliation. Although statements in the complaint can be used as evidence. See United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003).

Winter 2009: (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Sought information, talked with Legal Assistance office at Aberdeen Proving Grounds, MD (no response), began Article 138, UCMJ, complaint process.

Spring /Summer 2009 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Apparently did submit a CG and received a response (contents unknown) from Senator Alexander’s office, talked with Congressman Wamp’s office and a “complaint” was sent to the Army OLA.

Fall 2009 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him):

20 November 2009: Submitted an Article 138, UCMJ, complaint against the Army Chief of Staff. However, it is questionable if Article 138, UCMJ, is the proper method. That article is considered to be for a complaint against the immediate commander. LTC Lakin cites AR 27-10 (the Army version of the JAGMAN, LEGADMINMAN, and AFI 51-201). Chapter 20 deals with Article 138, UCMJ. Under para. 20-4 defines a “commanding officer” as a person in the petitioners chain of command up to the “first officer exercising GCM jurisdiction[.]” See, Response to Article 138, UCMJ, complaint.

11 December 2009: Response to Article 138, UCMJ, complaint.

30 March 2010: Letter to the President.

31 March 2010: Army counseling form DA 4856, in which LTC Lakin is told the facts in what appears to be a clear, accurate, and concise fashion. He is also encouraged to speak with Army Trial Defense Service for guidance.

31 March 2010: Date of first offense. (Note, the argument could be made that LTC Lakin failed to provide sufficient time between his letter to the President and possibly getting a response. Although with other things in this case he left it too late.)

12 April 2010: Date of missing movement “through design” a specific intent offense, in violation of Article 87, UCMJ.

I think there is an opening for LTC Lakin’s counsel to argue some sort of TMLUB. Based on my, rather limited, research in the federal cases that accept and apply this doctrine in specific intent crimes I’m not convinced it would work. I can’t see how a court would view his actions as being “reasonable reliance” on Mr. Jensen’s opinion. There are too many factors arguing the other way. Nor can I see the TMLUB as a part of a “mistake” defense. Because I think the court would see through that argument as just another way to argue the ‘my lawyer told me’ defense.

I thought about jury nullification. That’s certainly a rabbit that Mr. Jensen let loose although not in those terms. But for nullification to work you have to have a sympathetic set of facts and client. I just can’t see that. Even if the members were to view LTC Lakin as sympathetic and a prior good officer, there doesn’t seem to be any sympathy value in his knowingly disobeying orders in the manner the he has. He has put a thumb in the Army eye for a political reason rather than as a mere act of conscience.

I’m open to other ideas — ones which do not relitigate presidential eligibility.