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.)

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 top military official at Walter Reed Army Medical Center has been relieved of duty and charged with knowingly falsifying his personnel records. Command Sgt. Maj. Stoney Crump, the senior enlisted officer for the Medical Center Brigade, had the “intent to deceive” when he submitted a false official record incorrectly stating that he had attended several military educational courses, according to the Army charge sheet.

Army Times reports:

A major federal investigation has found that dozens of military officials and defense contractors, including some with top-level security clearances, allegedly bought and downloaded child pornography on private or government computers.

Here is a link to the Boston Globe article on this subject.

Many of those apprehended were swept up in a much broader probe initiated by the Immigration and Customs Enforcement agency in 2006. Operation Flicker identified an estimated 5,000 people who had paid money over the Internet to access websites operated overseas. But until now, it has not been disclosed that a sizable number of cases were referred to the Defense Department for investigation because they involved military personnel, intelligence officials, or defense contractors.

Army Times reports that:

An influential group of five senators has asked Army Secretary John McHugh to justify the Army’s decision to exonerate officers in command when the battle at Wanat, Afghanistan, left nine soldiers dead and 27 wounded.

On 26 May 2010, Mr. Galligan, MAJ Hasan’s civilian counsel posted this on his blog.

Today is the deadline, imposed by the Article 32 Investigating Officer, for Army prosecutors to respond to long outstanding Hasan Defense Team discovery requests. As of this posting – after COB at Fort Hood, Texas – no formal response from the prosecutors has been received. And, as readers are aware, the initial Article 32 session is scheduled for just several days hence.

It is not surprising that the neither the prosecution, nor for that matter the IO has responded to production requests under R.C.M. 405(f). This seems par for the course in many Article 32, UCMJ, investigations. Another interesting post is this.

For the past several months, the Hasan Defense Team has actively solicited the appointment and government funding for a mitigation specialist. Every step of the way, US Army prosecutors have resisted our efforts. Because all of the Defense nominees just happened to be licensed attorneys, Army prosecutors argued that we were trying to backdoor the retention of additional civilian counsel. Of course, that argument is ridiculous and overlooks the fact that many experts who also happen to be attorneys are routinely appointed as experts in military courts-martial. Moreover, they have served as expert witnesses for both the defense and the prosecution. And, more significantly, the position of Army prosecutors in the Hasan case is totally at odds with the fact that one of the defense nominees is now serving as a mitigation specialist in an ongoing court-martial at Fort Lewis (United States v. Davila). Apparently, the US Army does not speak or act with one voice on this important issue. 11 June 2010: the Article 32, UCMJ, hearing ICO LTC Lakin is set to begin at WRAMC. LTC Lakin is not in pretrial confinement but charges have been preferred. Therefore the R.C.M. 707 speedy trial requirement applies.

I agree with Mr. Galligan about experts who also have legal training. I have had cases, and currently have an Army case, in which one of our experts – a pathologist — is also a lawyer.

Post hearing: An Article 32, UCMJ, investigating officer is required to provide a written recommendation on charges and forum prior to further disciplinary actions or case disposition. A DD Form 457 with additional pages and attachments is used.

The Staff Judge Advocate is also required to provide a recommendation in accordance with Article 34, UCMJ.

The Army guide on the conduct of an Article 32, UCMJ, hearing is DA Pam. 27-17.

LTC Lakin is alleged to have committed offenses in violation of the UCMJ. The conduct alleged cuts to the very heart of military requirements of obedience to orders, fidelity to the oath of office, and the need for seniors to set the example. I’m reliably informed that in addition to formal counselings every effort was made pre-preferral to convince LTC Lakin to obey his orders. In the face of such contumacious behavior the Army had no choice but to prefer charges. Enlisted personnel are regularly disciplined, court-martialed, and jailed for the same or similar conduct and who have better reasons for their AWOL. Such a stunning lack of officership cannot pass unnoticed or undisciplined. Neither President Obama nor his administration has any role in this case at all. Should the administration try to get involved they should be told – politely – to butt out.

The military will formally discipline at least six officers, mostly from Walter Reed Army Medical Center in Washington, for failing to take action against the officer accused of carrying out last year’s deadly shooting rampage at Fort Hood, according to people familiar with the matter. In announcing the findings, Defense Secretary Robert Gates said he had directed Army Secretary John McHugh to take “appropriate action” against Maj. Hasan’s past supervisors. Mr. McHugh, in turn, appointed Gen. Ham to investigate whether specific officers should be punished for failing to raise the alarm about Maj. Hasan.

Wall Street Journal reports.

The military will formally discipline at least six officers, most from Walter Reed Army Medical Center in Washington, for failing to take action against Fort Hood gunman Nidal Malik Hasan, according to people familiar with the matter. Officials said the move reflects the military’s belief that the Nov. 5 assault could have been prevented if Hasan’s superiors had alerted authorities to his increasing Islamic radicalization.

Dallas News reports. Judge Pohl has been scheduled to start the Article 32, UCMJ, hearing on 1 March.