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.