Here’s a link to the MCM amendments that the President approved this week.

[I'm still on the road and because of the way my e-mail is forwarded, I can't tell who sent the amendments to me.  But whoever you are, thanks!]

Here’s the question I would most love to have answered about the Lakin case:  what advice did Paul Rolf Jensen give to LTC Lakin leading up to today’s ruling? 

I hear very good things about LTC Lakin’s detailed defense counsel, MAJ Kemkes.  While obviously I have no way of knowing for sure, we can very safely assume that he advised LTC Lakin that there is no way his request for discovery would be successful and that he should explore available avenues to protect himself from the consequences of his deliberate decision to disobey orders on a basis that the law will not recognize as a defense.

Given that we can be almost certain that MAJ Kemkes gave LTC Lakin that advice (the same advice that all of those of us who are judge advocates would no doubt have given LTC Lakin), what advice did Mr. Jensen give?  Mr. Jensen obviously recommended a course of action different than that proposed by MAJ Kemkes.  To what extent, if at all, will today’s events lead LTC Lakin to lose confidence in Mr. Jensen’s advice?

That depends on what Mr. Jensen’s advice was. It seems to me that there are three principal possibilities:

(1)  Mr. Jensen reasonably told LTC Lakin that there is virtually no prospect that the military judge would order discovery and an almost certainty that the military judge will find that the orders given to LTC Lakin were lawful and so instruct the members.  Mr. Jensen might have further advised LTC Lakin that the consequence of moving forward is likely a dismissal from the Army and the loss of any pension, with a real possibility of jail time as well.  He might have futher advised him that while only LTC Lakin can choose whether to face those consequences, if they are imposed, then that opens the avenues for appeals and collateral challenges to the likely denial of discovery.  If that’s the advice Mr. Jensen gave, then today’s events probably won’t cause LTC Lakin to lose any confidence in Mr. Jensen.  Now the only question is whether, as he draws closer to the noose, LTC Jensen might lose his resolve and attempt to cut a deal.

(2)  Mr. Jensen gave guano crazy advice to LTC Lakin that either the Army would back down out of fear of being compelled to produce the requested discovery or the military judge would likely order the requested discovery.  If that was the advice given, then presumably LTC Lakin lost a great deal of confidence in Mr. Jensen today and may now see MAJ Kemkes’ legal advice as being superior to that of Mr. Jensen.

(3)  Mr. Jensen said something along the lines that the question of whether the discovery will be ordered is an open question upon which reasonable minds might disagree.  Some military judges might order the discovery while some might not.  The appellate courts will have to ultimately resolve the issue.  If he’s unlucky enough to draw one of those military judges who believes that he’s not entitled to the discovery, then LTC Lakin will probably face appellate leave and/or confinement while that issue is hashed out on appeal.  While I believe that such advice would be almost as guano crazy as #2 above, today’s ruling wouldn’t necessarily lead LTC Lakin to see that such advice was incorrect.  On the other hand, obviously LTC Lakin is an intelligent man and Phil Cave’s eyewitness assessment of today’s ruling is that Judge Lind demolished Mr. Jensen’s legal arguments.  Might that lead LTC Lakin to conclude that MAJ Kemkes’ legal advice was more sound than that of Mr. Jensen?  Probably not.  I’m not trying to be flippant when I say that if LTC Lakin yielded to an objectively reasonable assessment of the situation, he wouldn’t have embarked on the particular path toward Leavenworth, Kansas on which he’s currently hiking.  LTC Lakin is acting under the dictionary definition of a delusion:  “an erroneous belief that is held in the face of evidence to the contrary.”  It seems doubtful that listening to Judge Lind’s ruling today would cause LTC Lakin to slap his forehead like in those old V-8 commercials and exclaim, “NOW I understand why the requested documents have no legal relevance to the charges against me.”

So, interestingly, probably the only real prospect for LTC Lakin now taking actions that are in his objective best interest (trying to cut a deal to limit the negative consequences of his previous actions) is if Mr. Jensen provided him with guano crazy assurances of success.  If Mr. Jensen provided any other advice, it seems likely that LTC Lakin will continue his hike on the Leavenworth trail.

The Maryland Daily record reports here that LTC Lakin’s motions for depositions and subpoenas were denied today.  The report states:

A military judge in Maryland has refused to order the release of school records that could include a copy of President Barack Obama’s birth certificate. . . .

The judge ruled Thursday that those records and any other evidence or witnesses pertaining to Obama’s birth are not relevant to the case and will not be admitted. Prosecutors have argued that Obama’s birth certificate shouldn’t be part of the case, especially since the order for Lakin to deploy to Afghanistan didn’t come directly from the president.

More later if/when it surfaces.

At the mid-term point, I noted that the number of petitions CAAF had received was on pace to be lower than any of the previouis 11 terms’ totals (and probably the lowest ever).

But the petition intake during the second half of CAAF’s just-completed term exceeded that of the first half.  According to the court’s official end o’ term stats, here (scroll down just a tiny bit), CAAF received 721 petitions for grant of review during the term.  That’s more than the FY 2003 term’s total of 694 petitions.  The September 2008 term’s total was 843.

The number of cases that CAAF carried over on its master docket (30) is identical to the number it carried over from the previous term.  That’s the latest indication that the number of cases CAAF decides during its brand new term will likely be similar to the number it decided during its just-completed term.

The issue starts with two articles discussing the problem of servicemembers with PTSD who engage in misconduct losing their eligibility for treatment as the result of administrative separation.  MAJ Tiffany M. Chapman, Leave No Soldier Behind:  Ensuring Access to Health Care for PTSD-Afflicted Veterans, 204 Mil. L. Rev. 1 (2010); Vanessa Baehr-Jones, A “Catch-22″ for Mentally-Ill Military Defendants:  Plea-Bargaining Away Mental Health Benefits, 204 Mil. L. Rev. 51 (2010).

This article argues for an amendment to R.C.M. 912(d) guaranteeing a right to counsel-conducted voir dire.  MAJ Ann B. Ching, Who Questions the Questioners?  Reforming the Voir Dire Process in Courts-Martial, 204 Mil. L. Rev. 182 (2010).    

Here’s a link to an article arguing that the MCM should be amended to provide a party seeking a military judge’s disqualification with the right to have a denial of such a motion reconsidered by a different military judge.  MAJ Steve D. Berlin, Clearing the High Hurdle of Judicial Recusal:  Reforming RCM 902(a), 204 Mil. L. Rev. 223 (2010).

Here’s a link to a wonderful article about the importance of reading for military lawyers, including many recommendations of books we should read.  LTC Jeff Bovarnick, Read Any Good (Professional) Books Lately?:  A Suggested Professional Reading Program for Judge Advocates, 204 Mil. L. Rev. 260 (2010).

Here’s a link to the Clausen Lecture on handling high-profile cases.  Thomas W. Taylor, The Fifteenth Hugh J. Clausen Lecture in Leadership:  Leadership in High Profile Cases, 204 Mil. L. Rev.  343 (2010).

Here’s a link to the Summer 2010 edition of the Military Law Review, with many articles of interest to we military justice wonks.

As indicated here, the President has signed revisions to MCM.  However, I don’t see a link to the actual changes.  Nor could I find them on the Federal Register’s website.  Does anyone have a copy of the changes to the Manual that the President adopted?

h/t Phil Cave’s Court-Martial Trial Practice blog.

So today’s the day.  Anyone attend the meeting of the Independent Panel to Review the Judge Advocate Requirements of the Department of the Navy.  I am otherwise occupied so I could not, though I am contemplating a written submission. 

Thanks to Anon, again, here is a link to the Panel’s “homepage.”  Ifit asks you for search criteria, enter 73653 in the Committee Number field.   To see the documents the committee is reviewing, click on Meeting and then the link for documents. 

From my review of the Marine Corps’ presentation (slides 48-51 in particular), and Navy JAG, it would appear that the Marine Corps is making a big push for equality in this process.  In particular they are looking for parity of consideration of Marine Corps JAs for all AJAG slots and for consideration of Marine Corps JAs as the DoN JAG (as they phrase it). 

Considering this push, the now unavailable 1995/6 memo on the ability of Marine Corps JAs to be considered for Navy JAG was quite topical.   If anyone associated with the panel is reading, four documents that are no longer available on fido.gov appeared, on a quick scan, to be very interesting and relevant to this push by the Marine Corps.  I would personally appreciate if they could again be made available to the public.  The documents are (numbers correspond to the Aug. 30, 2010 index):

10. Commandant of the Marine Corps Memorandum for the Secretary of the Navy dtd 25 Apr 1994, Marine Nominees for Appointments to be the Judge Advocate General and the Deputy Judge Advocate General

11. Navy Judge Advocate General Memorandum for the General Counsel of the Navy dtd 22 May 1995, Marine Nominees for Appointment to be the Judge Advocate General and Deputy Judge Advocate General of the Navy

12. Navy Judge Advocate General Memorandum for the Principal Deputy General Counsel of the Navy dtd 4 Mar 1996, Proposed Legislation to Modify Statutes to Select the Judge Advocate General of the Navy and the Staff Judge Advocate to the Commandant of the Marine Corps

13. General Counsel of the Navy Memorandum for Secretary of the Navy, Under Secretary of the Navy dtd 9 May 1996, Marine Corps Nominees for Appointment as the Judge Advocate General and Deputy Judge Advocate General of the Navy

Gracias.

Here is a link to the S.O.C. press release announcing that LTC Lakin’s motions for deposition of various Hawaiian officials will be heard of Sep 2 at Ft. Meade. It also provides excerpts for a declaration for a Retired Air Force–Air Force, not Army–Lieutenant General supporting LTC Lakin’s request for President Obama’s birth records. Some of the declaration is reprinted on the website, but here is the gist:

If [Pres. Obama] is ineligible under the Constitution to serve in that office that creates a break in the chain of command of such magnitude that its significance can scarcely be imagined.
 
As a practical example from my background I recall commanding forces
that were equipped with nuclear weapons. In my command capacity I was responsible that personnel with access to these weapons had an unwavering and absolute confidence in the unified chain of command, because such confidence was absolutely essential–vital– in the event the use of those weapons was authorized. I cannot overstate how imperative it is to train such personnel to have confidence in the unified chain of command.

I couldn’t agree more. As to relevance . . .

I need a little help from our readership.  It appears that a few document links are being removed/broken for various documents considered by the Independent Panel established by Sec. 506 of the FY2010 NDAA to review the judge advocate requirements of the Dept. of the Navy, see my prior post here.  I tried the WayBack Machine to get archived versions of the documents but was denied.  Anyone know how to get old documents from a webpage or why these Independent Panel documents are disappearing from the web?