The court-martial of convicted Army doctor LTC Terry Lakin resumes today.
First off is a session held outside the presence of the members between the judge and counsel for both sides, with the accused in attendance. This proceeding, held pursuant to UCMJ Article 39(a), will likely focus on administrative matters such as the prosecution’s intent to put on evidence in rebuttal and the expected length of the rebuttal case, objections by the defense to the rebuttal case, if any, and so on. If there are any additional motions to find offenses multiplicious for sentencing purposes — thus reducing the maximum sentence in the case — they will be likely be resolved in this session. The instructions to be given the members before they retire to deliberate on a sentence may also be discussed during the Article 39(a) session.
Rebuttal may consist of any evidence which directly contradicts evidence offered by the defense, or evidence which tends to explain the defense evidence, including statements of fact contained in the accused’s unsworn statement. The prosecution is also entitled to rebut any inference which may be fairly drawn from the defense case, which expands the scope of permissible rebuttal evidence. During my time as a circuit prosecutor, I referred to rebuttal as “the trial counsel’s best friend.” In addition to the substantive information it conveys, a good rebuttal case carries with it the subtext that the defense has attempted to pull a fast one and cannot be trusted.
Colonel Sullivan is of the opinion that there may be several fruitful avenues for rebuttal in this case. We will have to wait and see what the prosecution plans. If the prosecution offers rebuttal, the defense can offer evidence in surrebutal; otherwise, the case goes directly on to argument by counsel and instructions to the members by the military judge. Either side may propose a specific sentence; often the defense will decline to do so, arguing instead in general terms for leniency or simply arguing that the sentence proposed by the prosecution is too high.
During sentencing deliberations, the members may each propose a sentence. Sentences represent a single punishment for all the offenses, rather than for each specification; members are not told what maximum penalty each specification carries, only the maximum for the whole as an aggregate. The sentences are then voted on in ascending order – i.e., from the most lenient to the most severe. Once a proposed sentence receives at least a 2/3-rds vote, that becomes the sentence of the court. Because there are eight members of the court-martial, it requires the vote of six members to reach the two-thirds threshold. Put another way, any three members can scuttle a proposed sentence, requiring consideration of the next most severe option. Prosecutors often urge the members, during argument, to “just say no” to any sentence that seems too lenient or insufficiently weighty to address the crimes of the accused.
Updates will be posted here as events warrant.
If you missed last night’s interview with Colonel Sullivan, retired CDR Phil Cave, and Fogbow blogger Mata Mari, you can still find it online here: blogtalkradio.
1057: The members are now deliberating on sentence.
The prosecution presented excerpts from LTC Lakin’s Care inquiry in which he admitted under oath that his former attorney, Paul Jensen, expressly told the accused that the orders he’d received were lawful, and that as an attorney, Mr. Jensen said he could not ethically advise the accused to disobey them. There was no surrebuttal.
The defense asked the military judge to find Specifications 1 and 2 of Charge II, which address LTC Lakin’s violation of two separate orders to report to the brigade commander on 31 March, multiplicious for sentencing purposes. She granted the motion, and in so doing reduced the maximum sentence to confinement from 42 months to three years.
The prosecution asked for dismissal, confinement for 24 months, and forfeiture of all pay and allowances. The trial counsel who argued noted that in LTC Lakin’s unsworn statement, his focus was always on himself: how he was concerned about the President’s eligibility, how he felt his concerns needed to be addressed, and so on, until the moment came to accept responsibility — at which point the accused focused on other people and how they let him down or supposedly misled him. The prosecutor also noted that at no point during LTC Lakin’s tearful discussion of his family or during his apologia to the commander did LTC Lakin see fit to mention MAJ Dobson or the hardships endured by anyone else as a result of LTC Lakin’s actions. Trial counsel tied the request for 24 months to the period of time the accused should have been in theatre: 2 days for every day he was not with the 1-32 Cav overseas.
The defense asked for a reprimand, “some” forfeiture of pay, and restriction to geographical limits (generally, such limits are to the limits of the base, or of some other geographical area, in the discretion of the convening authority). He argued for no dismissal and no confinement. The defense’s parting words to the members: “Merry Christmas.”
We will post the sentence when the members return.
It’s 22 degrees at Fort Meade and snowing heavily (for those who find the weather reports fascinating). According to Colonel Sullivan, the birther faithful have thinned out somewhat, as has the media contingent.
1335: The members have sent for lunch to be brought in and will resume their deliberations shortly.
One update on courtroom personnel: Mr. Puckett has another case he has to attend to, in Italy, and has — with the consent of the accused — been excused from the remainder of the trial. The military counsel assigned to the defense team, MAJ Kemkes, will handle any further matters at trial and post-trial. Depending on the sentence, LTC Lakin may also be assigned military appellate counsel.
1545: Sentence announced. Dismissal, confinement for 6 months, total forfeitures.
SPECIAL NOTE: For folks joining us from Army Times blog, please feel free to look through our site. Coverage of the Lakin court-martial, starting with the most recent entries, can be found here.