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?

See fn. 2., I believe at one point Mr. Jensen was complaining that the military judge wasn’t going to apply any “civilian” cases.

See fn. 3., for the judge’s rather sparse treatment of the de facto officer doctrine.

PERHAPS SOMEONE COULD BE ENCOURAGED TO MAKE THE WRITTEN FINDINGS PUBLICLY AVAILABLE?

I was present for the “40 minute” reading of her written findings and conclusions. These written findings and conclusions are now part of the record of trial, and are also now available to Jensen, LTC Lakin, and the prosecutors. Perhaps APF could post the findings so we can see just how badly the military judge ruled – APF let’s get those wrong headed arguments of the judge out in the open where the full text can be read and dissected?

Here is a summary of the some of the issues to be thought about when deciding if the political question doctrine precludes judicial review or judicial decision-making (taken from the Cornell Law website).

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Rather than focus on the word embarrassment readers should consider that the military judge was using different words to express the same prong of a political question doctrine analysis. The correct focus, as it was for the military judge, is the phrase, “or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.” That’s what the military judge said along with an analysis of a number of other factors relevant to her application of the political question doctrine to the issues before her. This was all clearly in the context of her other statements that a court-martial is not a forum to raise and litigate political issues. Whether or not the president has properly served since 20 January 2010 is at this point clearly a matter for political discussion with no place in a military court-room.

In Baker v. Carr, the Supreme Court outlined the doctrine as follows:

We have said that “In determining whether a question falls within [the political question] category, the approriateness (sic) under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” . . . The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the “political question” label to obscure the need for . . . case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine.

Baker v. Carr, 396 U.S. 186 (1962).

Without objection from the defense the military judge took judicial notice that the President has served in office since 20 January 2010 and continues to do so. Thus, the defense acceded to the notion that the legality of President Obama’s service is “final,” in my view for purposes of applying the political question doctrine. The president’s status in fact became final on 20 January 2010 when he was sworn in. That, as best as I can tell, had been committed to the Congress to determine the results of the election. the president decide to run for re-election in 2012, the political process can be exercised.

The doctrine has its roots in the federal judiciary’s desire to avoid inserting itself into conflicts between branches of the federal government. It is justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision.

20 August 2010 was the day to submit motions. They would have had up to the close of business.

Nothing on APF in terms of documents filed.

Frankly I’m not expecting anything to be released, certainly not by the government. You will recollect that LTC Lakin and APF has been selective in what documents they publish on the website: no copy of the request to the Article 32, UCMJ, IO, no copy of the OER at issue, but other documents yes. Maybe they’ll post the responses from the government to the discovery and motions so they can argue their points in a vacuum?

In the meantime I’ve updated the LTC Lakin Trial page – here is a portion.

3. Assuming the two above general allegations to be true do they equal unlawful command influence which is prohibited by Article 37, UCMJ, and case law? Answer: No.

First some general history. It is reliably said that one of the influences and motivating factors leading to the Uniform Code of Military Justice (UCMJ) were legitimate widespread complaints about command influence on courts-martials during the Second World War. You can read the legislative history of the UCMJ through the TJAGSA website, or you can read Report of War Department Advisory Committee on Military Justice [Vanderbilt Report], 13 December 1946. In particular the Vanderbilt Report has a summary list of “charges here frequently leveled at commanders, and still leveled.

UCI is often referred to as the “mortal enemy” of military justice. See. e.g., United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2009); United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987); United States v. Weasler, 43 M.J. 15, 16 (C.A.A.F. 1995). I like better the words of Judge John Maksym of the Navy-Marine Corps Court of Criminal Appeals when he was military judge. According to CAAF:

The judge reasoned that the CA improperly “controlled” a prospective defense sentencing witness. This resulted in changing the witness’s anticipated testimony that Appellant should be retained into testimony that only supported the command decision to court-martial Appellant. In fashioning a remedy of dismissal with prejudice, the military judge stated that “the evil here spreads far beyond the four corners of this case . . . .” In announcing his findings, the military judge stated: The mandate of United States [v.] Biagase, 50 M[.]J[.] 143 [C.A.A.F. 1999] could not be more clear. Undue and unlawful command influence is the carcinoma of the military justice system, and when found, must be surgically eradicated. And this is going to be what we are about to see, the eradication of something that has shocked the conscience of this court.

United States v. Gore, 60 M.J. 178, 184 (C.A.A.F. 2004).

With that context let’s get back to LTC Lakin’s predicament. Article 37(a), UCMJ, 10 U. S. Code §837(a) states the following:

(a) No authority convening a general . . . court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means,influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. (Emphasis added.)

Based on the plain language of Article 37(a), UCMJ, we can develop several thoughts.

1. LTC Brodsky is a commissioned officer on active duty. Therefore he is like LTC Lakin subject to the Code. See Article 2(a)(1), UCMJ, 10 U. S. Code §802(a)(1). 2. He is not the convening authority or commanding officer. Therefore there needs to be some other basis for him to be included within the concept of a person prohibited from exercising UCI. 3. Finally, he has not sought to reprimand, censure, admonish, influence or coerce the members or the tribunal or a member of the tribunal: note (oddly now I look at this closer) that the accused is not listed in the article. But don’t worry, we’ll get to that in a tanker-minute (this is an allusion – test for MJWonks).

So, where can this or these issues go. Could the UCI issue get any legs. Well, that depends. Here is where I think it’s important to look at the trial counsel (TC) and staff judge advocate (SJA) role in this process. Let me leave you with this thought.

In United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993) the court noted that the SJA generally acts with the mantle of command authority. In essence the SJA is speaking or perceived to speak for the commander in many ways within the MJ process. See also, United States v. McClain, 22 M.J. 124 (C.M.A. 1986). Is a member of the SJA Office arguably exercising command influence. Cf. United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997)(actions of the SJA as UCI).

“In light of the unitary function of a staff judge advocate’s office, action by the trial counsel will be imputed to the staff judge advocate absent evidence indicating that the staff judge advocate did not place his blessing thereon.” See United States v. Johnson, 4 M.J. 8, 9 (C.M.A. 1977).

So, let’s get back to the tanker-minute allusion.

During one or more briefings conducted among officers and noncommissioned officers within his command, General Anderson addressed the subject of testifying at an accused’s court-martial. He stated that he found it paradoxical for a unit commander, who had recommended that an accused by tried by a court-martial authorized to adjudge a punitive discharge, to later appear as a defense character witness at the sentencing stage of the trial, testify as to the accused’s good character, and recommend that the convicted soldier be retained in the service. Some of General Anderson’s remarks were elaborated upon and possibly distorted by his subordinates. Be that as it may, his comments were later interpreted, or misinterpreted, to reflect an intent that a commander, first sergeant, or other person from an accused’s unit, should not give favorable presentencing testimony on behalf of an accused. This interpretation may have also extended to findings. . . . The exercise of command influence tends to deprive servicemembers of their constitutional rights. If directed against prospective defense witnesses, it transgresses the accused’s right to have access to favorable evidence. U.S. Const. amend. VI; cf. Art. 46, U.C.M.J., 10 U.S.C. § 846. If directed against defense counsel, it affects adversely an accused’s right to effective assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); U.S. Const. amend. VI; cf. Art. 27, UCMJ, 10 U.S.C. § 827, and Art. 37. If the target is a court member or the military judge, then the tendency is to deprive the accused of his right to a forum where impartiality is not impaired because the court personnel have a personal interest in not incurring reprisals by the convening authority due to a failure to reach his intended result. Cf. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927); United States v. Accordino, 20 M.J. 102 (C.M.A.1985).

Thomas, 22 M.J. at 392. (The Tanker Case.)

At the conclusion of the arraignment, Lakin was ordered not to speak with the press and was taken back to Reed under military escort, surprising and disturbing a civilian lawyer who has been working on his case. “This was completely inappropriate. Col Lakin was brought here and taken away from here as if he was a common criminal. He was prohibited from talking to the press for two minutes; he was prohibited from talking to anybody, even me,” Paul Rolf Jenson said.

There was decent security for this exercise both in and around the court-room.

Prohibited from talking with his defense counsel? If that’s true that’s a problem.

Prohibited from talking to the press – who are these defense counsels aides helping to keep the accused’s mouth shut from further incriminating himself or providing aggravating comments.

The report is also factually inaccurate.

After Lind requested that Lakin submit his plea of guilty or not guilty, Lakin’s attorney said “No plea.” “A motion to dismiss must be brought before the plea is entered, and after the proceedings are commenced,” Jensen explained. “In that thirty second period we didn’t have time to bring the motion, but we will.”

He did not say “no plea.” He had said that he would be deferring pleas. As all military lawyers know this is pretty standard practice.

Also, he deferred motions. This “quote” incorrectly implies that the court did not give counsel adequate opportunity to present a motion. He quite clearly asked to defer motions along with forum selection and pleas.

But Lakin said the result “makes it impossible for me to have a fair hearing.” “I cannot even raise the issue of the president’s eligibility, on the grounds that my position has ‘no basis in law,'” he said

He’s getting a “fair” hearing within the rules of R.C.M. 405 and Article 32, UCMJ.

He is wrong that he can’t raise the issue. His defense counsel was in fact invited, “expressly instructed” to do just that – provide a scholarly brief on why the requested information was necessary.

Driscoll then blamed the defense for not giving him what he wanted.

Yes, that’s right, when the defense doesn’t do something they are requested to do, told to do, or ought to do, they can’t complain that the, in this case, IO didn’t give them what they asked for. It is the obligation of the defense counsel, especially when called upon, to ask, be specific, and give a legal and factual reason – a pleading – on why something should be produced. This is done in all courts of law not just LTC Lakin’s Article 32, UCMJ, hearing. This is something that is second nature to trial lawyers. You don’t just make bold bald requests.

“I expressly instructed ‘[y]our submissions, if any, on the subject of lawfulness of orders, derivation of authority, political questions and the like should be sufficiently scholarly to allow me to make an informed determination of relevance of the requested items to the truth of the specifications and charges at issue,” Driscoll wrote.

LTC Lakin’s counsel failed to do what he was requested to do. It is the failure of the defense counsel, not the IO.

“There is no scholarly discussion of what constitutes an illegal order or under what circumstances such an order can be disobeyed or must be disobeyed.”

Note, “the Army” did not refuse the defense requests. The IO did, acting in his role assigned under Article 32, UCMJ, and R.C.M. 405. This is what I would have expected MAJ Kemkes, the military defense counsel to have told LTC Larkin, and by inference, Mr. Jensen.

The written ruling is as expected.

I thought I’d use this case as a way to refresh ourselves on how a defense counsel should approach an Article 32, UCMJ, hearing regardless of the accused or the charges. (I HAVE CREATED A LTC LAKIN PAGE here – which I will update as a relevant event happens or I have time.)

Cooper dominated the combative interview, demanding answers from Lakin, telling his lawyer, Paul Rolf Jensen, to let his client answer and then forging ahead with his own arguments. “I submitted Article 138 [requests],” he said. “It was the only way I could research the issue. I was asking and begging my leadership for guidance on how to address this issue.

It’s my understanding that he has been given guidance on the issue: he received a written response to his Article 138, UCMJ, complaint (an answer which he didn’t like and doesn’t agree with), and he was formally counseled (on the standard Army counseling form) of what his obligations were and the consequences of not following orders (again, not the answer he wants). At this point he has to follow orders, or he could have submitted a resignation request (which would possibly refused, that’s true).

Cooper argued that Lakin previously had taken orders from many officers without demanding their birth verification, and Jensen explained that was because the Constitutions sets the specific requirement for the president, not military officers.

Sorry, don’t see the distinction at all. This is an all or nothing issue. Either all orders issued by the President to all the armed forces are legal or they are not. Sorry LTC, can’t pick and choose on this one. Whether or not the certifications of President Obama as president and the fact that the Congress of the United States treats with him as President is irrelevant to the charges pending against LTC Lakin. At least one observer in the Washington Post implies that the LTC Lakin case may really be all about fundraising: David Weigel, “A good day for the birthers,” WPBlog 7 May 2010.

The filing of charges, however, may be part of the still-unrevealed strategy Lakin and his legal counselors are pursuing.

I found a humorous note in the article. The writer points out a typo in the charge sheet.

n support of Operation Enduring Freedom with the 32nd Calvary (sic) Regiment, 101st Airbor

The writer appropriately ‘sics’ the typo. In doing so the writer perhaps highlights what might be LTC Lakin’s calvary.

Any strategy appears to be a political one, not a legal one at this stage. At best his public statements and reasons for his misconduct might in the future be squeezed into R.C.M. 1001 as extenuation or mitigation evidence. As we know, the accused’s right to bring up matters in his sworn or unsworn statement is very broad. See e.g. United States v. Grill. Whether the reasoning is compelling enough to reduce a sentence, as opposed to aggravating a sentence, will have to be determined by the fact-finder.

Note also this point from Grill:

In United States v. Rosato, 32 MJ 93, 96 (1991), we observed that an accused’s right to make an unsworn statement “is a valuable right . . . [that has] long been recognized by military custom” and that has been “generally considered unrestricted.” We also noted that the right was not wholly unrestricted and that it would be inappropriate, for example, for an unsworn statement to include matter that was “gratuitously disrespectful toward superiors or the court [or] a form of insubordination or defiance of authority.” Under the Manual and Rosato, the right to make a statement in allocution is not wholly unfettered, but if there are abuses, they should be addressed in the context of the statements made in specific cases. The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution. If, in the future, the Manual’s traditional, largely unfettered right of allocution should lead to a plethora of mini-trials, the President has the authority to provide appropriate guidance in the Manual for Courts-Martial. Under the present rules, however, as we noted in Partyka, 30 MJ at 246, “[S]o long as this valuable right is granted by the Manual for Courts-Martial, we shall not allow it to be undercut or eroded.” See also United States v. Martinsmith, 41 MJ 343, 349 (1995) (right to make unsworn statement “considered an important right at military law, whose curtailment is not to be lightly countenanced”).

The WND article goes on in reference to an earlier birther case of a reservist:

“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.”

To some extent this has been true in several cases. However, the prosecution of LTC Lakin illustrates that a person refusing legitimate orders does in fact risk a court-martial and that prior “highly peculiar” results are in fact the outlier. Perhaps the WND position of a get out card has motivated the Army to take a firm position to ensure military personnel are made aware of the risks of refusing deployment orders. The WND article goes on:

“In the (Uniform Code of Military Justice), just as you would expect, criminal defendants have the process of the court, for subpoenas and depositions under the rules that are prescribed,” Jensen said.

Um, has WND read the current version of R.C.M. 405, 701, 703, and applicable case law? WND will get a surprise when it reads about depositions in the military. It does happen that I (and DMLS at least) believe that the current R.C.M. on depositions is inconsistent with and unconstitutionally restrictive of Article 49, UCMJ. So a part of me is rooting for LTC Lakin as a way to possibly get the appellate courts to invalidate the unconstitutional restrictions on Article 49, UCMJ — actually, this reminds me to post something about a defense approach to Article 49, UCMJ and R.C.M. 703. I’ll have to break out some prior deposition notices and a motion from several years ago – case ended with a PTA.