Blogging from my IRR muster, fun is being had by all–it has not officially started, so all the Ethics bubbas stop typing your comments.

A smattering of news from around the services:

This intriguing story from OregonLive about an Oregon National Guard soldier’s fight against some debilitating diseases and the Army over her prescribed use of medical marijuana to treat the side effects of the disease and chemotherapy has flown under the national radar. We’ll see if that continues. I’ll track it to see if there is another side to the story, though the fact that the soldier was given a Recruit Command job would seem to indicate that the mother of 3 was a decent soldier as well.

More Lakin news here. With these statements, possibly old ones, from Lakin’s counsel, Mr. Jensen:

Lakin’s attorney, Paul Rolf Jensen, told WND that of all the dozens of cases that have been brought to various courts over the issue of Obama’s eligibility, Lakin’s probably is the strongest yet.

He said that after the preliminary procedures but before the actual trial, there will be a time for the discovery of evidence.

“This is a criminal case,” he noted, with a possible punishment of several years in jail. “In order for a criminal defendant to defend himself in a criminal court he has to be given the opportunity to put on a defense. The records are relevant.”

He is right about at east one thing, this is a criminal case.

This story about two Navy Chiefs assisting some sailors with their advancement exams discusses the rarity of the underway court-martial. I am surprised that in the last 9 years the Navy hasn’t seen more of those.

9 Responses to “Court-Martial News”

  1. Cheap Seats says:

    I’m wondering, was this a SCM in the at-sea Chief’s case?

  2. Marcus Fulton says:

    Based on the sentence it seems likely. That wouldn’t be rare; we’ve done it recently on IKE with a frocked senior chief who couldn’t “keep his hands out of the cheese cake” if I may borrow first lieutenant’s euphemism.

  3. KyAtty says:

    I have a question about Lakin’s case. I understand that he has military counsel assigned to assist him, as well as a civilian attorney. Does the military counsel have to sit there at the court-martial next to a civilian co-counsel spouting birther insanity? What are his legal and ethical obligation when a defendant and his civilian counsel are intent on presenting a frivolous defense?

  4. Socrates says:

    The military defense counsel BETTER be in communication with his state bar…and have a hotline open.

    Criminal defense attorneys must be particularly careful under Rule 1.2 not to counsel a client to engage, or assist a client, in conduct that is criminal or fraudulent. A criminal defense lawyer must counsel or assist his client to make a good faith effort to determine the validity, scope, meaning, or application of the law. This means that the military counsel MUST explain to LTC Lakin the political question doctrine, the de facto officer doctrine, and the presumption of validity rule.

    The military counsel MAY have to break confidentiality (though unlikely). Rule 1.6 contains some permissive exceptions to the attorney’s duty of confidentiality. In some cases, a lawyer is permitted to disclose confidential information to prevent the client’s commission of both criminal and fraudulent acts, not just criminal acts. Its possible that LTC Lakin’s disobedience to the order to disprove President Obama’s legitimacy qualifies as a fraudulent act.

    10 U.S.C. § 888 says that “Any commissioned officer who uses contemptuous words against the President … shall be punished as a court-martial may direct.” To say that the President is illegitimate, and more importantly, a fraud/liar, is contemptous. Other regulations and installation orders bar speech that “embarrass or disparage” the President. LTC Lakin’s military counsel would have an ethical problem in participating in any way with the proposed “affirmative defense” of Pres. Obama’s legitimacy. The military counsel could only play defense as to the Government’s case-in-chief.

    Under Rule 3.3, a lawyer must disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. This means that, like providing bad case law, the military counsel would have to openly admit, on the record, those facts which tend to demonstrate Pres. Obama was born in the United States.

    Under Rule 3.3, a lawyer cannot knowingly make a false statement of material fact or law to a tribunal. A lawyer cannot offer evidence that the lawyer knows to be false. If a lawyer comes to know that false evidence has been offered or false testimony has been given, the lawyer is required to take remedial measures even if compliance requires disclosure of information otherwise protected by Rule 1.6. This essentially means that the military defense counsel will have to carefully monitor JENSEN (more so than the government)!

    Rule 4.4 precludes using litigation as a means that have no substantial purpose other than to embarrass, delay, or burden a third person. Here, the third person is President Obama, Commander-in-Chief.

    In short, the military counsel should make an ex parte motion to withdraw from this case; and when that is denied, make his motion on the record, saying that due the nature of the military justice system, and his own burdens, he is labored with an inherent conflict and a STRUCTURAL DEFICIENCY exists in this case where he cannot provide a defense. Then let CAAF straighten-out these preserved issues on appeal.

  5. Tami says:

    I think this is more of an issue of the client pursuing an objective that the military defense counsel considers repugnant or imprudent, under AR 27-26 Rule 1.16(1)(b)(3). Challenging President Obama’s qualifications to be President is highly imprudent, given the case law on nonjusticiable political issues, which this would be. This is also highly irrelevant to the charges. Since there has not yet been a court appearance, I think the military defense counsel should talk to his supervisors (and state bar) and seek to withdraw from the case.

    I agree LTC Lakin has a right to present a defense, as does any other accused. However, it has to be a valid defense. LTC Lakin’s proposed defense is not valid. It’s just that simple.

  6. Southern Defense Counsel says:

    Have we entered a realm where a CDC can effectively override Congress by automatically disqualifying any MDC who is assigned to a case?

    If this DC rightly disqualifies himself, doesn’t any DC in the future have to do the same? And if that’s the case, what happens to LTC Lakin’s statutory right to MDC? Have the Birthers just ensured that LTC Lakin is not going to have a conviction that stands up on appeal because the Military defense bar denied him the right to military counsel? We enter a very sticky world when we start making demands that MDC withdraw because CDC is advising a bad course of action, and I am not too eager to say that MDC has such a duty. Socrates definitely got the rules right, but I think his conclusion is a bit draconian. A better response is for MDC to ensure that his name is not on any fraudulent paper before the Court, and that he properly keeps a paper file of every time he has counseled his client against following the proposals set forth by Jensen & Co.

  7. Anonymous says:

    I think that’s exactly right. So long as he:

    a. gives the correct legal advice
    b. doesn’t partake in anything fraudulent

    MDC is basically there in an advisory role while CDC takes on the active role in this case. The MDC is not required to withdraw and shouldn’t but he should be very clear on a and b and keep a very detailed MFR on everything.

  8. Socrates says:

    So. Defense Counsel,
    A good outcome may be a kind of indemnity, announced by the service court and CAAF, for a military defense counsel in a case like this. Published decisions trump ethical rules, as well as clarify them. Truth be told, my “draconian” steps were half-intended to preserve some appellate issues for LTC Lakin (so that the counsel could simultaneously do his duty) and half-intended to directly protect the mil. defense attorney. You are absolutely correct that keeping a record of advice is an adequate approach…but it preserves no issues. I think the motion to withdraw, coupled with a structural deficiency argument, at least buys LTC Lakin some iota of defense. (My other double-secret strategy is for LTC Lakin to deny his own birth)

  9. soonergrunt says:

    (My other double-secret strategy is for LTC Lakin to deny his own birth)