When I was a wee lad, I was part of the appellate team representing Sgt Clayton Lonetree, who had been convicted of providing information to Soviet agents while Sgt Lonetree was assigned as an embassy Marine Security Guard.  One of our claims on appeal was that Sgt Lonetree had received ineffective assistance of counsel because his civilian defense counsel were more interested in using his case to support a political agenda — the American Indian rights movement — than protecting their client.

CMA found IAC in an opinion written by Judge Sentelle sitting by designation.  Here’s how Judge Sentelle set the IAC scene:

Representing Lonetree at trial were civilian counsel William H. Kunstler and Michael V. Stuhff, as well as military counsel Major David N. Henderson and Captain Andy Strotman. Lonetree asserts that his civilian counsel erred by failing “to explore the possibilities of a pretrial agreement, negotiate with the Government over the terms of such an agreement, and present a potential pretrial agreement to their client for his consideration.” Brief for Appellant at 18.

As the basis for his claim, Lonetree details civilian counsels’ total hostility to entering a plea bargain that might have resulted in a 10-, rather than a 25-, year sentence. Lonetree’s affidavit describes his civilian counsels’ assurances that he was not “legally guilty” and that he would prevail at trial, as well as their attempts to convince Lonetree that the Government’s case was racially motivated. The affidavit also relates how civilian counsel tried to poison Lonetree’s relationship with military defense counsel, particularly in regard to any plea agreements that Major Henderson might discuss. 31 MJ at 873 n.21. Additionally, Major Henderson provided an affidavit in which he voiced his frustration with the unreasonable views of Lonetree’s civilian counsel regarding a plea agreement. Id. at 875. Though Lonetree faced life imprisonment if convicted as charged, civilian counsel apparently only “wanted to deal in terms of one or two or maybe three years,” while Major Henderson believed, based on his discussions with trial counsel, that negotiations should begin in “the realm of 5 to 10 years.” Id. (quoting Henderson’s affidavit).

United States v. Lonetree, 35 M.J. 396, 412 (C.M.A. 1992).

Judge Sentelle observed:

Lonetree offers us colorable claims consistent with the existing record that civilian counsel offered him bizarre and untenable advice, consistently attempting to instill in him a distrust of his military counsel and consistently inducing him away from a plea bargain assuring him substantial leniency in the face of overwhelming evidence of his guilt. If true, it is more than a theoretical possibility that a DuBay hearing might yield a finding that civilian counsels’ level of advocacy fell “measurably below the performance … [ordinarily expected] of fallible lawyers.” See United States v. DiCupe, 21 MJ 440, 442 (CMA), cert. denied, 479 U.S. 826 (1986).

Id. at 413-14.

CMA emphasized that the issue affected only the sentence:  “[W]ith Stuhff and Kunstler’s counsel he was found guilty. Without civilian counsels’ alleged ineffective assistance, he might have pleaded guilty instead. Either way, he stands convicted. It is only the sentence that may be affected.”  Id. at 414.

And CMA emphasized that not every case of bad advice would result in appellate relief:

We further wish to make clear that we do not intend to establish a precedent that every defendant alleging bad advice is entitled to a DuBay hearing or a rehearing. In this case, though, Lonetree offers a colorable scenario consistent with relief-worthy ineffective assistance and a record consistent with the claim. Given the degree of cooperation afforded by Lonetree to all authorities before civilian counsels’ intervention, and especially given the fact that his crimes came to light only by his own voluntary disclosure in the first instance, it seems at least a colorable argument that it was only civilian counsels’ advice and its consequences that left the young Marine with so heavy a sentence.

Id.

Sgt Lonetree ultimately received a five-year confinement reduction as a result of that ruling.

The responses of the two civilian defense counsel were interesting.  Mr. Stuhff cooperated with the government during the appeal, though his bizarre affidavit explaining his trial-level decisions seemed to us to implicitly support our IAC claims; anyone who wrote an affidavit that bad probably provided an objectively unreasonable level of representation.  But Mr. Kunstler took a different approach:  “Mr. Kunstler, the New York lawyer associated with politically charged trials, has said that as a matter of principle he would not dispute claims of ineffective counsel. ‘If they can win their case by proving any dereliction on my part, it would be all for the good and I cheer him on,’ he has said.”  Neil Lewis, Convicted Marine’s Legal Advice to Be Reviewed, N.Y. Times, Oct. 4, 1992.

Obviously one enormous difference between Lonetree and Lakin is that in Lonetree, the “bizarre and untenable advice” advice concerned how to proceed after charges while in Lakin, the apparently “bizarre and untenable advice” concerned the commission of the crime itself.  And, of course, one doesn’t have a Sixth Amendment righ to counsel when deciding whether to commit an offense.  So Lonetree isn’t directly applicable to the Lakin scenario.  Nevertheless, it provides some interesting parallels that LTC Lakin’s new counsel may wish to explore.

64 Responses to “You say Lakin, I say Lonetree. Lakin. Lonetree. Lakin. Lonetree.”

  1. Christopher Mathews says:

    Perhaps LTC Lakin considered the inglorious career path of Paula Jones and concluded that serving as the tool of people with a political agenda might not in the end be a good idea.

    There certainly is time for his new team to limit — though not undo — the damage, provided the doctor is willing to let them.

  2. Paul says:

    What’s the Soviet Union?

  3. Greg says:

    What’s the Soviet Union?

    The World’s Last Empire.

  4. John O'Connor says:

    What’s the remedy for IAC where the theory is that the accused’s counsel talked him out of seeking a deal? A new sentencing haring? What’s the point of that, as the new haring would be more or less the sdame as the last one. Reduce the sentence by assuming he would have been willing to take a PTA and deciding what sort of PTA the CA should have been willing to accept? If I were the CA, I’d say who the heck is some court to decide what, as a legal matter, I should have been willing to give in a deal.

  5. John O'Connor says:

    Preview and spell-check are my friends.

    Preview and spell-check are my friends.

    Preview and spell-check are my friends.

  6. SueDB says:

    Preview and spell-check are my friends.Preview and spell-check are my friends.Preview and spell-check are my friends.

    I find at times like these, I check my blood sugar…

  7. sg says:

    Firefox browser has spell check built in while you type.
    I’m just saying.

  8. Anonymous says:

    All work and no play makes Jack a dull boy.

  9. KyAtty says:

    Of course, the difference here is that Lakin hasn’t been tried yet, so he has the opportunity with new counsel to plea bargain which Lonetree didn’t. I simply can’t imagine that any court would accept as a defense that he had ineffective assistance of counsel in deciding whether to commit the crime or not.

  10. Randy says:

    If Conservative, you label them a tool yet if they are radical Liberal you promote them to Reverend.
    Oakie Dokie.

  11. Trevor says:

    Lakins handlers have re-surfaced with an “It’s all a cunning plan” press release, looks like the guano crazy is STILL in full flow.

    http://www.safeguardourconstitution.com/press-release/press101004.html

  12. Christopher Mathews says:

    I never realized I had the power to promote people to Reverend. I’ll have to use it more liberally, as you say.

    More seriously: I think arguing that LTC Lakin was used by others is a charitable interpretation of events, and one that would benefit a defense based on contrition. However, there’s as yet no evidence that the good doctor intends to take that route, and his Article 138 complaint may make doing so problematic.

  13. jon elmer says:

    IANAL, would Lakin’s new defense counsel have to approve this press release, or at least tell their client they want to review all press docs in advance?
    How does this “guano crazy” help in a potential plea bargain?

  14. publius says:

    So what would be a legit deal? Too late for a RILT?

  15. soonergrunt says:

    Ms. Jones was a tool, as in the meaning of an instrument or device for accomplishing a task. It is telling that her two original attorneys backed out of the case because they believed that they had done the best for their client and that their client was no longer listening to them. This is what ethical lawyers do, they represent the best interests of their clients and do not allow them to be used by other people for ends divergent from the clients’ interests. They do not, in other words, allow them to become…tools.
    If LTC Lakin’s new counsel is working exclusively to secure the best future he can for LTC Lakin, and not allowing his case to be used by outside forces, like yourself, that have no regard for Terry Lakin or his interests, excepting how to use him to hurt the President, then you don’t get to use him as a tool anymore and the system is working the way it is supposed to work.
    So, in short Randy, stop being a tool (in the other meaning of the word.)

  16. Trevor says:

    IANAL, would Lakin’s new defense counsel have to approve this press release, or at least tell their client they want to review all press docs in advance?How does this “guano crazy” help in a potential plea bargain?

    Being the highly ethical and crackerjack lawyers all Birfoons are, I’m wiling to bet cash money that they dropped this pile of poo out without deigning to tell new counsel.

    I particularly find interesting the whole “LTC Lakin is consistent in continuing on the same path that he announced publicly six months ago: bit.

    Not seeing any attempt at contrition here, no way that he is going for a plea bargain…at least from the perspective of this set of lunatics….

    It will be very interesting to hear what Puckett has to say……..

  17. Brian le Chien says:

    Seems like the new attorneys want access to the funds already raised. Speaking of which, I wonder how much money Mr Jensen received of the $500,000.00 he estimated it would take to try the case?

  18. Gitmo JAG says:

    Suppose you are the TCs on this case and you know (because you read CAAF Log, of course) that an IAC claim on appeal is hovering over this case. What do you do to mitigate this claim at trial? Do you not seek to admit any filing, press release, etc. written by, or under the advice of, previous counsel?

    The elements of these offenses are fairly simple and should be easy to prove BARD. Perhaps the wise play is to play it straight and delicately rebut any sentencing evidence re: Lakin’s motives for the offense. Save the hammer for the sentencing argument and feel confident that LTC Lakin will give you all the ammo you need in his sentencing case.

    Dicey.

  19. Christopher Mathews says:

    Note that LTC Lakin’s new legal team probably has not yet entered an appearance. I would expect them to come to an agreement with their client on such public statements before they make their appearance.

  20. mikeyes says:

    The PayPal button is still up, too. Does this mean that the money is going to the new defense team and they need more?

  21. Rob A says:

    Perhaps LTC Lakin considered the inglorious career path of Paula Jones and concluded that serving as the tool of people with a political agenda might not in the end be a good idea.

    I bet Lakin wouldn’t be able to score a layout in Penthouse like Jones did either… Just sayin’…

  22. publius says:

    New DC’s opening pitch to prosecution and CA ought to be: “L&G, amateur hour’s over. This thing’s a mess, and will get messier at trial w/ the IAC motions I will be compelled to file. Let’s put it to bed quietly. My guy wants to RILT. All we should fight about is whether you take a rank from him, and maybe we won’t fight over that too much. What do you say?”

  23. publius says:

    Which means, if you’re the TC at trial and you see the IAC issues coming and you want to mitigate them at trial, you don’t go to trial.

  24. Rob A says:

    Some birfers on Facebook are now speculating that the new defense team will now ask for a new judge. Zero chance of this happening, correct???

  25. Greg says:

    Lakins handlers have re-surfaced with an “It’s all a cunning plan” press release…

    It seems odd to me that the press release does not mention who the “new attorney” is.

  26. soonergrunt says:

    there’s a facebook group for Birthers?
    Well, why not?

  27. Trevor says:

    They want a new judge, they want a new set of laws, they want a new Constitution, they want, they want, they want…..

    What they want is a nice white Republican to kick out the scary horrid black Mooslem/Commie/Nazi/Socialist out of THEIR White House.

    (Not made up, phrases all used on Birfoon sites on a regular basis)

  28. Rob A says:

    Several groups, all currently undergoing a thorazine shortage… somebody better get the net…

  29. soonergrunt says:

    RILT–
    Relief In Lieu of Trial?

  30. SueDB says:

    I mentioned something about LTC Lakin “behaving himself”. I don’t think his new counsel is going happy with all of this…
    Then again, IF and IF they DON’T officially represent Lakin anymore, then I would suppose they can say anything they want – they do so anyway. None of them have any conscience about taking that 44 pax bus and running over Lakin’s ass several times.

    All the latest stuff does is continue to nail the coffin shut on the doc. There is a time when “silence is golden” – especially after your new counsel should tell you to STFU and STFD.

  31. Interested onlooker says:

    Retirement in Lieu of Termination…

  32. Dew_Process says:

    Resignation in Lieu of Trial — I don’t think he’s retirement “eligible,” unless he’s got some other time credits.

  33. Anonymous says:

    Just wondering…why does this Lakin case bother you guys so much?

  34. Rob A says:

    Just wondering…why does this Lakin case bother you guys so much?

    Because he is a traitor and mutineer.

  35. Brian le chien says:

    In terms of whether Jensen’s performance created any issues, I believe we can analyze this issue as follows:

    PRE-CRIME: What was Jensen’s advice to LTC Lakin before he committed the crime (ie did the attorney advise him to committ the crime, or that missing movement was not criminal). The issue here is whether it is a recognized defense (on the merits) that you were following the advice of your attorney. I think not for two reasons: first, I am unaware of any previous case where this was a recognized defense. Second, in his video before missing movement, LTC Lakin stated that he “invited” his court-martial, which indicates he was clearly aware that his conduct was at least questionable in the eyes of the law. I do not think there are any IAC issues relating to this advice (which was probably not given). It will be a defense on the merits or not (likely not). It could be introduced in sentencing. But it is not IAC.

    POST CRIME: I also don’t see any IAC issues from Jensen after the crime was committed, because the new team will be able to remedy any error. Motions not filed, or filed poorly, can be fixed. Luckilly (for LTC Lakin), the switch in time might save his behind.

    True, Jensen probably encouraged LTC Lakin to make numerous pre-trial statements that were inculpatory (e.g. video posts, media interviews etc). It is unclear whether the Government would use any of those statements. Even if they did, however, LTC Lakin’s was a clearly willing participant, and his repeated desire to “invite” his court-martial, indicates he knew of the risk he was taking. (Not to mention, even absent the ill-advised intervires, evidence of his guilt is overwhelming).

    With new counsel, this case is a far cry from Lonetree (and that case, decided in a more paternalistic time, may be dated). Lonetree would have been a better comparison with Jensen still around through trial.

    At this point, I would assume to preserve any of these issues, the defense will need to produce evidence of the bad advice (if any). That should be interesting…

  36. Interested onlooker says:

    I recall that Lakin was told to discuss his proposed crime with military counsel prior to missing movement. What I don’t recall is whether or not he did so. Presumably if it happened, the prosecution can get said counsel to testify to advising Lakin that his proposed course of action was indefensible. Would that wipe out any possibility to claim he was led astray by Jensen prior to committing the crime?

  37. Trevor says:

    Re Anonymous 15:04

    The reason is quite simple.

    The case, facially and at its simplest is one of an office defiantly refusing to follow legal orders and refusing to deploy as per said orders.

    Normally pretty open and shut and the only interest would be that it’s a Lt Col.

    In this case however we have a deliberate attempt to subvert the legitimate political process and place military questions above that of the civilian authority.

    In addition we have a chorus line of the unhinged who are loudly demanding a military coup in support of this cowardly buddy fucker.

    Lakin’s actions cut to the core of the supremacy of civilian authority over the military, the rule of law as promulgated through the UCMJ and the simple issue of “Soldier, you have your orders…soldier on.”

    I trust this explains some of the interest for you, pease feel free to read up on the background at this site and others to get a full flavor.

  38. Trevor says:

    If Lakin wants to save any semblance of his ass he should be following two golden rules

    KISS, Keep It Simple Stupid

    Stand Up, Speak Up, Shut Up, Sit Down

    Alas this seems to be anathemae to our friens in B’Stan

  39. Phil Cave says:

    The Army calle this a Chapter 10, (AR 600-x-xx or something); Navy OTHIL, USMC SILT, AF Chapter 4 (?). All the same. He resigns in lieu of trial by court-martial, or as the Navy says “to escape trial by court-martial.” He doesn’t make 20, ergo, no retirement, but also no conviction.

  40. Phil Cave says:

    They would have to show actual bias. And they can’t do that based on the records I’ve seen so far. Ruling against a person based on an evaluation of the facts and the applicable law is not evidence of bias.

  41. Ama Goste says:

    I have to wonder whether Lakin has changed more than just his civilian defense counsel. If he’s intent on following this goose chase to its conclusion, then it seems he wouldn’t be inclined to accept any deal, if the government was willing to offer him one. Anything designed to save Lakin’s skin (which is what most defense counsel would be interested in pursuing) wouldn’t get him any closer to that elusive birth certificate.

  42. Ama Goste says:

    It’s a Chapter 4 in the USAF for enlisted personnel (after the part of the enlisted discharge AFI that speaks to this process); it’s a RILO (resignation in lieu of…) for officers.

  43. soonergrunt says:

    Anon 1504,
    In addition to what Trevor said at 1546,
    This guy got up on Youtube in front everybody and their brother and proclaimed his knowing intention to violate the law. This is something that LTC Lakin could’ve avoided completely, had he listened to a member of the military bar, and the Army provides a lawyer, free of charge to anyone who asks.
    Also, obeying orders that one finds distasteful is a simple fact of military life. Sooner or later, a Soldier is going to be told to do something he doesn’t want to do by somebody he doesn’t want to listen to. That Soldier has a choice–he can obey his order to the best of his ability, or he can disobey that order, but either way he must deal with the consequences.
    When a Soldier refuses this order, he gets stomped down, because the next guy might refuse the order to attack the hilltop, or he might attack the hilltop against orders. The Army simply can’t work like that.

  44. mikeyes says:

    I lived the life of a medical officer in the military for almost three decades in both active and Reserve status. LTC Lakin’s action are personally and philisophically abhorrent to me.

    He placed his personal political beliefs ahead of his duty to his country and his fellow soldiers. As a result another physician is being put in harm’s way and soldiers may suffer if there is a delay in this happeneing. “Duty, Honor, Country” is the motto of West Point and by extension every other officer in service.

    The proper thing for him to have done is to resign his office if he is not able to follow the UCMJ due to personal belief. Instead he followed a path whose only logical end is mutiny and chaos in the service. He encouraged others to follow his example thereby destroying any honor he might have.

    When you put the uniform on, you enter an alternative rights world. You are not allowed to do things that in the civilian world would only get you fired or demoted. Instead he decided that he was above the Constitutionally mandated rules and regulations. His actions are against all the customs of the service and he is clearly acting in an unbecoming manner.

    My personal experience is with involved CAPT Yolanda Huet-Vaughn who tried to get her unit members to desert along with her during Desert Storm. Her political/philosophical reasons were the direct opposite of LTC Lakin’s but the result was the same, advocating mutiny and chaos. This is a shameful act in my opinion.

    Of course there is also the soap opera aspect of this whole thing. You can’t stop watching as you might miss the next outrageous plot line.

  45. BigGuy says:

    Bravo, Mike.

  46. Anonymous says:

    I’m curious: if LTC Lakin were to plead guilty, how far do you think he’d have to go in terms of the providency inquiry to satisfy the judge?

    Based on motions filed so far, do you think he’d be required to admit the President was born in Hawaii and is a natural born citizen, or at least that the President’s purported ineligibility has no effect whatsoever on the validity of the charged orders?

    If he won’t admit at least the latter, could he really offer provident pleas? Even if they were technically provident, do you think the judge in the exercise of her discretion would accept the pleas without some sort of similar concession?

  47. Rob M says:

    It’s called a Chapter 10 for enlisted personnel only (AR 635-200), “discharge in lieu of trial by court-martial.” It’s usually characterized as OTH). It can ordinarily be approved at the GCMCA level. For officers, it’s “resignation for the good of the service in lieu of general court-martial,” detailed in AR 600-8-24 (chapter 3, incidentally, but I’ve never heard it called that). It is also usually qualified as OTH. An officer who wants to resign ILO GCM must have his request approved at DA level. Just my opinion, but I’m not sure he gets off that easily.

  48. Greg says:

    Just wondering…why does this Lakin case bother you guys so much?

    To understand why Lakin’s actions are so contemptible, read this post (and the posts which follow) as well as this post and its replies (in particular, Dwight Sullivan’s answers in both threads).

  49. mikeyes says:

    Is this Sharon Rondeau article in P&E (http://www.thepostemail.com/2010/10/03/military-officers-have-no-jurisdiction-over-lt-col-terrence-lakin-2/) the “bombshell” that they were talking about and not the change in legal defense teams?

    Is she really a JAG officer?

  50. BigGuy says:

    Her writing is a bit obtuse, but I think if you sort it out it’s a convoluted hypothetical (“the following hypothetical memo”) to try to show that LTC Lakin can’t get a fair trial.

    Since it’s premised on the claim that Walter Fitzpatrick didn’t get a fair trial, I wouldn’t waste a lot of time on it.

  51. Rob A says:

    Is she really a JAG officer?

    Don’t know about that, but she is the harpist with the New Britain Symphony Orchestra. Seriously. And she gives private lessons and plays weddings.

  52. Rob A says:

    Is this Sharon Rondeau article in P&E (http://www.thepostemail.com/2010/10/03/military-officers-have-no-jurisdiction-over-lt-col-terrence-lakin-2/) the “bombshell” that they were talking about and not the change in legal defense teams?

    Is she really a JAG officer?

    She mentions she is role playing as a JAG officer in the article and requests your indulgence. Psycho.

  53. mikeyes says:

    My bad, I read this and only skimmed it. I couldn’t believe that a JAG could write such drek. I guess I was right ;-)

  54. SueDB says:

    …Is she really a JAG officer?

    No, but she plays one on the Intertubes…

  55. John O'Connor says:

    Just wondering…why does this Lakin case bother you guys so much?

    For me it’s simple:

    1. I don’t like skulkers.

    2. I don’t like soldiers who decline to submit to civilian authority.

    That said, this “case” doesn’t bother me at all. I only comment on it because Dwight posts updates every ten minutes to keep the page views up. ;-)

  56. Trevor says:

    Oh, if anyone feels annoyed and pissy about the overblown, fact free diatribe and wishes to comment over at the Pest and Fail, refrain…….

    a. Nothing gets past moderation unless they can spin it to make you look insane, editing original posts is a newer tactic….

    b. They have the same habit as Orly Taitz of “outing Obots” and printing up the miscreants email address entered and IP address and sending flying monkeys after them and/or sending nasty grams to the companies owning the miscreants internet pipe. Example below

    http://www.thepostemail.com/2010/01/26/outing-obamas-internet-brownshirts/.

  57. mikeyes says:

    What are the odds that this case will end up like the Watada case? There are some similarities in that it is a political question case in which his defense was denied and I am sure Sean Penn has an opinion about it ;-)

    Has this case gone the same route as Watada or has LTC Lakin shot too many toes off already?

  58. Rob A says:

    b. They have the same habit as Orly Taitz of “outing Obots” and printing up the miscreants email address entered and IP address and sending flying monkeys after them and/or sending nasty grams to the companies owning the miscreants internet pipe. Example below

    Here is Sharon’s contact info:

    http://www.harpinmotion.com/

  59. jay says:

    Watada “lucked” out because the prosecution requested a mistrial after the trial had started because Watada’s stipulation was thrown out. The prosecution wasn’t prepared to go forward without it. The defense objected and then when they convened a new court martial Watada’s counsel objected on the grounds it was double jeopardy. The court agreed. I think the Obama administratin who was now in power decided it wasn’t worth pursuing Watada on “minor” charges and a deal was brokered for him to leave.

    I doubt they will dumb enough to make the same mistake twice.

  60. Anonymous says:

    No; it’s because he is gaffing off your boy. Pure and simple.

  61. John O'Connor says:

    No; it’s because he is gaffing off your boy. Pure and simple.

    If that comment is directed at me, it’s funny on a whole series of levels.

  62. Rob M says:

    I’ve gotten some flak here for making comparisons between this case and Watada, but I think the comparison is apt. Different ends of the political spectrum, but same general idea (defense based on political ideology on issues which are not the responsibility of professional officers). I noticed how, after Watada got off on that ridiculous mistrial (how hard was it to provide independent evidence that he never got on the plane?), a lot of the “guano crazy” denizens of the leftmost reaches of the internet claimed that it showed how the military/administration secretly knew that the war was illegal all along and knew they couldn’t win in court. The conspiracy rhetoric in the Lakin case is almost identical, only this time from the rightmost reaches of the internet.

  63. soonergrunt says:

    No; it’s because he is gaffing off your boy.Pure and simple.

    What the hell does that even mean?

  64. Trevor says:

    USMC phrase to delay or put off someone or something….don’t know if that’s the intent with this one.