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.

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.

The American Patriot Foundation is pleased to announce that LTC Lakin has repositioned his forces, has retained new legal counsel, and is extremely grateful that the Foundation will be dedicating the critical next few weeks before his planned court-martial on November 3-5, to focusing entirely on public affairs, strategic communications/messaging and coalition-building and that their support will continue seamlessly as the new attorney prepares for trial. CLICK HERE FOR FULL PRESS RELEASE.

The release partly says:

The website of the Foundation is being re-designed to reflect this new focus and emphasis. Contrary to the impression left by some blogs and internet commentary, LTC Lakin is consistent in continuing on the same path that he announced publicly six months ago when he released his first YouTube video– and consistent with his military training, to continue to request assurance from Pentagon leadership that his military orders, including his deployment orders to Afghanistan, are legal– authorized at the highest level by a Commander-in-Chief who is Constitutionally eligible, per Article II, Section 1 of the U.S. Constitution.

Question: Is not Neal Puckett supposed to be in trial in United States v. Wuterich, in California at the same time? If correct, will one of the other firm members appear for LTC Lakin, or will they seek a further continuance?

In connection with LTC Lakin’s case Family Security Matters has this piece today.

Readers know the story; a decorated Army officer with eighteen years of service including multiple wartime assignments, as well as peaceful ones, refuses to deploy in time of war. A Google search gives 155,000 stories and opinions about this case. Make this number 155,001. [Uum 155003 or more now.] An Army Officer is sworn to obey the orders of all those appointed over him. It is also his duty to care for his troops and to provide those who serve under him with leadership and the means to perform their missions. In failing to deploy, he has not complied with these oaths, even though the nearly impossible dichotomy is true that he is acting as his training dictates. By denying his right to discovery, however, the odds are now stacked against him. Because of this, he will most likely be found guilty in a military court and LTC Terry Lakin must know this. A military court has no other option. Politics is for politicians; soldiers are above it and should remain there. I’ll leave it to others to determine whether this military court is no better than a kangaroo court, deeply influenced by those in high political places. But with this sad case in mind, it’s my opinion that we should leave politics to the politicians – it’s beneath a soldier’s dignity.

In thinking about why the case would be delayed to 3 November 2010 there were all kinds of ideas floating around, some ideas being of a conspiratorial nature. I had missed the piece noted by Reality Check (thanks!). Anyway, I thought the first place to go would be be docket – but first a digression on the piece of reporting Reality Check caught.

The military judge did delay the start of the trial for a month to give the defense more time to ask the court of appeals for help. (WUSA9 — http://goo.gl/Am1Q)

Based on additional chatter out there it seems the judge was doing what’s not uncommon in military cases and giving the defense a one time pass. (There has in fact been a lot of criticism from some over the years about paternalism toward an accused in military courts. Some of us view this as a desire for fairness.) My initial thought, now wrong, was that the judge would not delay the trial because of the defense’s tardy actions. But the delay makes sense.

We are all used to asking for a delay in a case. Rule One (of a list of Rule One’s) is to have a really good reason for delay. The reason here (incorporating some additional chatter) does not seem compelling. “We’ve had some attorney-client dissension in the camp doesn’t sound terribly compelling (and I paraphrase),” until you go back to the paternalism thought. I’ve seen where a judge will give the accused a break when there’s a sense the counsel aren’t up to snuff. In fact there is an appellate argument that you don’t make the client suffer for the sins of the lawyer. See e.g., United States v. Ortiz, 24 M.J. 323, 324 (C.M.A. 1987) ([W]e do not wish to make [an] appellant suffer for the omissions of the lawyer.). When you get a delay and you’ve had a less than persuasive reason for asking for delay it is not uncommon for the judge or court to admonish that you are getting a one and only. CAAF uses the language, “and absent extraordinary circumstances, no further extension of time will be granted in this case,” (bolded and underlined in the Journal), for almost all delay grants.

So why pick 3 November 2010. OK, here is a link to the docket.

You will see that 3 November appears to be the first open space on Judge Lind’s docket and that she wouldn’t be free until maybe December after that. Coincidentally this will give ACCA sufficient time to deny LTC Lakin’s writ petition. At which point I suppose the APF can direct their distrust toward the judges at ACCA and include them in the conspiracy against LTC Lakin?

The site still lists the judges decision as pending.

A copy of the petition is not posted to the website.

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?

This is the 13th day that LTC Lakin and his team have failed to file a petition for a writ of mandamus or prohibition with the Army Court of Criminal Appeals. (I’m reliably informed that no such petition has been filed as of yesterday.)

1. Delay in filing the writ will not necessarily gain delay in the trial.

a. I suspect Judge Lind will deny a continuance request based on the filing of a writ. And certainly any counsel knows that waiting to file a writ until the last minute will not assist garner a favorable continuance ruling.

b. I suspect ACCA will deny a request to delay trial pending resolution of a writ, and might actually deny the writ and a delay both at the same time.

2. In preparing my posting on MAJ Hasan’s request to have his Article 32, UCMJ, hearing closed, I came across Doe v. Naval Special Warfare Command San Diego, . Here is what Doe says that is apropos to LTC Lakin (citations omitted).

The issuance of an extraordinary writ, however, is,

“a drastic remedy that should be used only in truly extraordinary situations.” It is generally disfavored because it disrupts the normal process of orderly appellate review. For that reason, “to justify reversal of a discretionary decision by mandamus [or prohibition], the . . . decision must amount to more than even gross error; it must amount to a . . . usurpation of power.” The petitioner has the burden of showing that he has “a clear and indisputable right” to the extraordinary relief that he has requested. (holding settled limitations on power of appellate courts to review interlocutory orders requires more than simple showing of error; petitioner must prove he had a clear and indisputable right to a particular result or decision that he was not able to obtain from lower court).

Shadwell v. Davenport, 57 M.J. 774, 778 (N.M.Ct.Crim.App. 2002). Since the issuance of such a writ is a drastic remedy and because it disrupts the normal course of appellate review, it should not be invoked in cases where other authorized means of appeal or administrative review exist, Aviz, 36 M.J. at 1028; McKinney, 46 M.J. at 873-74. Accordingly, to justify extraordinary relief, the petitioner bears a heavy burden of demonstrating that he is entitled to issuance of a writ as a clear and indisputable right. Aviz, 36 M.J. at 1028.

SLDN reports:

Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending “Don’t Ask, Don’t Tell” (DADT), released a set of formal recommendations today to the Comprehensive Review Working Group, established to author a report on “how” to implement repeal, not “if” repeal should happen.

Bryan County News reports:

In a motion hearing Tuesday, Sgt. Joseph Bozicevich‘s defense attorneys requested their expert investigator be allowed to travel to Iraq to reinvestigate the crime scene and interview 16 Iraqi soldiers. Bozicevich’s military defense attorney, Capt. Nick Moutos, said the defense team would be “remiss” in its duty to defend a man “whose life was on the line” if they did not verify evidence and testimony gathered by the government’s Criminal Investigation Division. Government attorney Maj. Scott Ford said the defense was simply “on a fishing expedition.” Randy Price, expert investigator for the defense, described CID’s initial investigation as “sloppy at best.”

This does not seem to be an issue of also funding a civilian attorney to travel.

Navy Times reports:

The commanding officer of the Trident Training Facility in Bangor, Wash., was fired Tuesday because of “inappropriate personal behavior,” according to a Navy spokesman. . . . Kenny said the relief stemmed from “inappropriate personal behavior” that led to a loss of confidence in Solms’ ability to command. Kenny said he could not characterize the nature of the behavior. . . .[N]o one else would face discipline in the matter.

Military.com reports:

The bullet that prosecutors claimed the 19-year-old intended to get him out of the Army with medical disability in May 2009 instead left him with a mutilated leg and in front of a military judge for his court-martial on Monday. Facing charges including solicitation to commit aggravated assault, maiming, intentionally inflicting self injury and conspiracy, Wegley was found guilty of all charges, except maiming, by Col. Stephen Castlen near the end of his one-day court-martial. Wegley was sentenced to four months’ confinement and a dishonorable discharge. Prosecutors had asked for three years in prison and a bad-conduct discharge. . . . . William M. Hudgins, who served with Wegley in D Company, 1-330th Infantry Regiment, 198th Infantry Brigade, testified that Wegley approached him asking for a favor in May 2009 during basic training at Fort Benning. Prosecutors argued that Wegley was depressed. His brother had been seriously injured and was in the hospital, and his girlfriend had aborted their child and found proof of him cheating on her, prosecutors said.

As the case unfolds, Mr. Patterson gives the reader a tutorial in military justice as well as the complexities of PTSD. He also makes clear his stand against the war through testimonies from personnel involved with McCarran in Iraq. The tension rises throughout the court-martial: Will the judge allow PTSD as a defense? Will the jury believe how the war changed not just McCarran, but the man he killed?

Haven’t read it and probably won’t until it’s free. Hollywood did for me watching fictional movies about military justice (remember all the issues in A Few Good Men, and of course JAG, and Navy NCIS [how sweet that a show about NCIS should be called Navy Navy Criminal Investigative Service])

Despite the federal court ruling in California, it would be unwise for active duty servicemembers who are gay to assume the military will immediately change its policy.

The Frontiersman reports (this is Ramrod Five related):

In addition to murder, Morlock is also now charged with using an illegal drug, hashish, and with beating a civilian “on the body with his hands and feet, threatening to kill him if he spoke about hashish use within the platoon,” the amended charging document says.

Here is a link to a New York Times article which is part of its Women in the News section and focuses on the judge.

In her 86-page opinion, she called the law, passed by Congress in 1993, an unconstitutional violation of First Amendment rights to freedom of speech and Fifth Amendment guarantees of substantive due process.

CAAFLog reports that Sgt Quintanilla was sentenced to life imprisonment yesterday.

Sgt Quintanilla was convicted in 1996 of the premeditated murder of his squadron’s executive officer, the attempted premeditated murder of his squadron’s commanding officer, and the attempted premeditated murder of a gunnery sergeant. In 2005, the Navy-Marine Corps Court set aside the findings and sentence. 60 M.J. 852. In 2006, CAAF reversed the portion of NMCCA’s opinion setting aside the findings, but affirmed the portion setting aside the sentence. 63 M.J. 29.

The crimes and trial occurred before life without parole was a permissible sentence.

CAAF action in United States v. Trigueros, a discovery case. CAAF denied a petition. See posting about the case here.

News-Press reports: (related to Ramrod Five Article 32s)

The parents of a U.S. soldier from Cape Coral who, with other troops, is accused of killing Afghan civilians say they have evidence their son is innocent. Christopher Winfield, the father of Army Spc. Adam Winfield, 22, says he tried five times to pass urgent Internet messages from his son to the Army. Troops in his unit had killed an Afghan civilian, planned more killings and threatened him to keep quiet about it.

See also this New York Times piece.

BOLO: The AP reports:

Four prisoners with links to al-Qaida being guarded by American troops escaped from a maximum-security prison in Baghdad and are still at large, U.S. and Iraqi officials said Thursday. . . . U.S. troops found two detainees attempting to escape from the compound on Wednesday evening, the military said in a statement. When they conducted a sweep of the whole facility, they discovered that four other detainees were missing. This is not the first time that prisoners have broken out of American-run detention facilities in Iraq; 11 Iraqis broke out of the U.S.’s Camp Bucca in April 2005 although many were later recaptured. A month earlier U.S. officials there discovered a 600-foot tunnel leading out of Camp Bucca. In 2006, five detainees escaped from the Fort Suse Theater internment facility near Sulaimaniyah, 160 miles northeast of Baghdad; they were later apprehended by Kurdish security officials.

Are you being stalked – by the police? That’s becoming the fourth amendment issue de jour. I posted about x, and here is a piece in the Washington Times that sets the issue up nicely. There is a great deal of attention paid to stalkers who take advantage of technology to victimize people for fun or hate – behavior characterized as creepy.

A dissenting judge in that case wrote that the police behavior was “creepy and un-American.”

The APF website does not list or encourage attendance as the previously scheduled Article 39(a), UCMJ, session for tomorrow.

The 10 September 2010 docket for the First Judicial Circuit (Judge Lind’s circuit) does not show a hearing scheduled in LTC Lakin’s case for tomorrow.

A motions sessions for 28 September 2010 is the next listed event, location TBA.

Trial is still scheduled for 13 October, for three days, location TBA.

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.

The above is from the discussion of the political question doctrine. The sole use of the word embarrassment is here:

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.)

Anyway, back to LTC Lakin.

I told Dwight that a minor nit was LTC Lakin and his counsels’ failure to stand when first addressed by the military judge. I have the client stand on the “are you . . .” in all cases and its de rigueur in Navy and Marine Corps cases. It’s a minor sign of respect to the court. Anyway, at the time it was just a bit of post-Lakin gossip for Dwight. But then I chanced to look at the photograph on APF along with the fund-raising plea. LTC Lakin is probably lucky the SGM wasn’t around with a Taser complaining about a poor example to the enlisted personnel. I know, I know, it’s a nit. But I did not see a “No cover area” sign around outside the (now temporarily housed in a warehouse) court-room. BTW Fort Meade courtroom is a lot more professional looking and much more space for a gallery.

Oh right, the Taser. Quite a few security related personnel and chasers were present thereby helping to “fill” the rather small court-room. Yes, the court-room was packed! 10 on the back row, 10 on the front and a number of strap-hangers by the doors. About 50/50 civilian and military. I did have something of a rueful moment when one of the media appeared to count me as a Lakin supporter.

I don’t know if a Taser is an authorized personal protection device carried by MP’s. I don’t recollect seeing that in the normal course of business and don’t recollect seeing any that day. But I wasn’t looking and I sold my TASR shares a long time ago.

Whether an escort brings the accused to court seems to differ and be a matter of discretion within the Army. Did an officer case last week where there were escorts present but the client was allowed to travel to and from the courtroom unescorted. I have another case where the client comes escorted; but that probably relates to his being in PTC for 118(1)(3).

Technically wouldn’t LTC Lakin be authorized mileage for self travel to Fort Belvoir? Not sure about the distance rule. If entitled to mileage, and if the escorts and bailiffs have to go anyway, why not put LTC Lakin in the car or van with them and save some government funds? If further proceedings are to be at Fort Meade that seems further cause to reduce costs by shoving the escorts, bailiff, and LTC Lakin in the same care or van? MAJ Kemkes could possibly hitch a ride. Of course Mr. Jensen would be prohibited by law from traveling in a GOV. Oh my goodness, another cause for concern? Mr. Jensen should be happy they haven’t deployed LTC Lakin to Afghanistan and held the trial there.

I have no idea whether LTC Lakin was threatened or allowed to overhear some inappropriate jocularity is unknown to me.

On the media access issue I note that the prosecution did not ask the military judge to place a gag-order on the trial participants. Whether one was warranted or would have been issued is a separate question. To me I see a legitimate command interest in preventing LTC Lakin or any accused making public media appearances in uniform and during the duty day. I see little difference between his situation and regulations on political activity while in uniform. If he wants to continue to confess in public, continue to provide evidence of intent, and provide potentially aggravating evidence of his contumacy isn’t that his decision – just not in a military sponsored forum like court-martial proceedings during the duty day while in uniform? Although I continue to wonder why a competent defense counsel would not be doing everything possible to silence the client.

Well after that meandering response to several questions back to reality.

Cheers.

A former command sergeant major at Walter Reed Army Medical Center fired for allegedly faking his record and wearing unauthorized awards and decorations faces military discipline for a series of bold deceptions that span several years and multiple commands, according to the charges against him.

World News Daily has a piece on LTC Lakin’s OER issue. The piece seems to accept without question or fact-check the allegation that the, “Army convicted me without trial.” It would seem a proper journalistic analysis would review the actual report (still publically unavailable) and review in comparison to AR 623-3 .

An Army officer who has chosen to stake his career on a demand that Barack Obama document his eligibility to be president is charging that the Army has convicted him without a trial.

The National Law Journal has a short piece on the litigation in California by the Log Cabin Republicans challenging the DADT. Maybe the case will be resolved on a standing issue vice the merits.

Finally, Freeborne continued to assert that the Log Cabin Republicans lacked standing to pursue the claim. “Mr. Woods gave short shrift to the subject for obvious reasons: Log Cabin cannot identify a single member who has the right to challenge the policy in his or her own right,” Freeborne said. Neither of the individuals claiming to be Log Cabin Republican members has identified himself as a Republican, he said, and both failed to pay dues. During trial, Woods introduced several officers of Log Cabin Republican who vouched for their membership.

A posting at A Natural Born Citizen . . . Orly? appears to indicate that one of Orly Taitz’s blogs has been taken over – I think by aliens. Oh man what a pun. She does have some blather, but apparently repetitious of some of the events in the Lakin case.