There was disagreement at the CAAFlog confab as to whether the case of United States v. Lakin should make the top-10 list.  After all, it is a dog-bites-man story.  The military justice system proceeded in a way that was not merely predictable but predicted.  The case makes our top-10 list largely because the dog was barking-mad and there was a three-ring flea circus performing on its back.

One of the striking things about the Lakin case is how well the military officers involved in the system functioned amidst all the barking madness.  The first military justice practitioner to touch the case was MAJ Kemkes, who would ultimately be the detailed defense counsel.  During the court-martial, we learned that he repeatedly advised LTC Lakin that his orders were legal and he was obligated to follow them.

Those responsible for making the charging decisions followed the KISS principle.  They didn’t get exotic, though they easily could have.  Nor did they pile on.  Rather, they charged common, easy-to-prove offenses in five specifications, two of which were pled in the alternative.

While one trial counsel was relieved early in the case after it was alleged that he made some inflammatory remarks, the three young trial counsel who litigated the case did a superb job.  CPT O’Beirne’s sentencing argument was particularly impressive. 

But the biggest kudos go to Judge Lind.  She went to great lengths to promote openness at the trial, including authorizing a closed circuit video feed of the proceedings into a media center to ensure that those interested in watching the case wouldn’t be turned away if the courtroom’s 60-seat capacity had been exceeded.  Throughout the trial, she took the time to explain to those watching what was happening, such as when she went into detail about what an R.C.M. 802 conference is and why they are held.  And she was remarkably restrained during the occasional birther outbursts that punctuated the proceedings.  Any rational observer saw a model of careful justice during which the accused engaged in a 90-minute dialog explaining under oath why he was guilty of four of the five charged offenses and a panel of eight colonels concluded that the evidence established beyond a reasonable doubt that he was guilty of the fifth.  And while the amount of confinement adjudged was less than some (including me) predicted, the military justice system’s sentencing voting rules encourage the members to adjudge the lightest acceptable sentence.  It appears that the system worked as designed in the Lakin case.

Any military justice practitioner watching the trial would have been very proud of the way our system functioned. Some of the birthers present derided the court-martial as a “kangaroo court.”  It wasn’t.  The trial demonstrated once again the beauty of the Care inquiry.  How could anyone reasonably believe that the result was unfair when the accused himself admitted that his conduct was criminal and repeatedly stated under oath not only that the orders he received were lawful, but that he knew at the time he violated them that they were lawful?

Of course, the entire case was an effort to misuse the military justice system for a political purpose.  Such an effort was doomed to fail.  LTC Lakin’s immolation of his career was also unnecessary.  His decision to willfully disobey orders was made in an attempt to acquire the Holy Grail of birtherism:  a copy of President Obama’s long-form birth certificate.  The New York Times reported yesterday that Hawaii’s new governor — Neil Abercrombie, who had been friends with President Obama’s parents while the President’s father was studying at the University of Hawaii —  announced that he is seeking legal authority to “release more explicit documentation of Mr. Obama’s birth on Aug. 4, 1961, at Kapiolani Maternity and Gynecological Hospital.”

LTC Lakin will likely be released from confinement — and no doubt placed on appellate leave — sometime around mid-May.  At some point after that, ACCA will almost certainly affirm the findings and sentence in his case.  Any petition to CAAF will likely be denied.  The Secretary of the Army or his designee will then approve the dismissal. And the case of United States v. Lakin will come to its inevitable conclusion.

27 Responses to “Top 10 military justice stories of 2010–#9: United States v. Lakin”

  1. el cravat loco says:

    We practitioners are at times critical of the court-martial system. But compared to other criminal trial systems it holds up quite well. I think dmlhs is right to include this ‘show trial’ on this list — for it was a show-trial but for the right reasons. Having practiced in front of Judge Lind I would suggest this was how she normally conducts a trial. But, as dmlhs notes, the occassional explanation to the audience was a suitable deference to the public trial. Sadly, I don’t think those who had something to learn took anything from the teaching moment. Standing by for the anticipated objections.

  2. sg says:

    What makes US v. Lakin important, though not overly so, is that it provided what my sister calls a Teaching Moment. What for you guys was a relatively straight forward Disobeying Orders and Missing Movement case was something entirely new to the rest of us, and we got to see the military justice system in action in real time. Like any court case, there were people on both sides who were surprised and/or disappointed with the outcome, but (unless you’re a full-on rabid birther) the overall impression one is left with is an efficient, fair system of justice that (hopefully) disabused* a number of people of their cherished beliefs for the truth.

    *The Word-a-Day calendar strikes again.

  3. BigGuy says:

    The regulars at CAAFlog are in a better position to determine where the Lakin case fits in the overall scheme of things. Many of us weren’t even aware the site existed until drawn here by the eye-opening discussions of military law. We remained as we came to appreciate the spirit of professionalism and hospitality that accompanied the high-level expertise.

    Thank you, Dwight, for welcoming us here, and Merry Christmas to all!

  4. John Baker says:

    SG and BigGuy each make a compelling argument for the Lakin case that I hadn’t even considered. I withdraw my objection to the Lakin trial making the the top 10.

  5. Sterngard Friegen says:

    Dog-bite lawyer bites client.

    Another reason the case was significant was that it showed the importance of obtaining as much discovery as you can in an Article 32 hearing. Dog-bite Jensen foolishly waived away this right, as part of a political statement (to show his pique for Judge Lind’s evidentiary rulings). In doing so he hurt his client’s opportunity to learn of all the evidence against him on the remaining charge. Whether it would have changed the outcome or the sentence is speculative. But the fact that Lakin’s civilian defense counsel at trial was surprised by COL Edwards’ testimony speaks volumes.

  6. GeorgetownJD says:

    MAJ Kemkes had a thankless job, and it continues to this day as he is left to craft an appeal and clemency request on behalf of a client who stubbornly refused to heed his advice. Kudos to a real professional who did his job.

  7. aarrgghh says:

    b-b-b-but his father’s a kenyan!


  8. Plutodog says:

    I, too, as an old swabbie really appreciated the professional, intelligent and well written and informative posts by the good folk at CAAFlog and most of the forum responses. I’ll be keeping an eye on this site in the future too because it is one excellent website. Thanks, Dwight and all!

    Best wishes of the season as well!

  9. Norbrook says:

    I’ll echo what sg, bg and Plutodog have said. While this was at its core a simple case, it was a great learning experience for those of us who aren’t military lawyers. I greatly appreciate the patient explanations of what the procedures were, and what to expect – even potential lines of defense were laid out.

    I’m looking forward to getting educated similarly during the Manning and Hasan cases.

  10. SueDB says:

    The insight has been superb. I felt that I got an education that money can’t buy (and will continue to do so).

    On to the Manning Case. I am hoping that the government applies KISS to this one too.

  11. Joey says:

    Count me in among those who learned so much from being here. Thank you again Dwight, et. al.

    It is gratifying that the naysayers were proven wrong on every single point and that they have all disappeared like the intellectual cowards that rational people knew that they were.

  12. John Harwood says:

    Since someone brought up Manning, I’ll bite on it. I have no inside info on either Manning or Lakin — I haven’t been involved in either, obviously — I’m just enjoying the view of both trials from my year in the ivory tower. However, I’m pretty sure of the following: despite what the Taitz/Jensen/Lakin crowd would think, there was very little political interference in the Lakin case. I’m sure folks up the chain wanted to be kept abreast of the case, but I’m pretty sure there wasn’t any meddling. Manning, however, will be different. Because of how that case touches national security, an ill-perceived notion of free speech, Wiki[shhh], Monsieur Assange and the crazy lefties that form part of the administration’s party base, this case will have high-level attention, and even perhaps interference. If I were defending Manning, I’d be working up my discovery motion and UCI motion as early as possible.

  13. Dew_Process says:

    JH – just playing devil’s advocate here, what’s the evidence that Manning is the sole culprit, if THE culprit?

    But, not only is a large discovery motion and UCI motion no doubt in the works, but the cover-up/”damage control” issues might very well prompt this case to slide into federal court to avoid questions about how a demoted SPC, who is facing an Administrative Separation Action, does not have his TS/SCI “access” suspended on the SIPRNET, and how he got access to the “diplomatic” portion of it. That’s where the UCI is coming from – keep the political commentary to facts.

  14. SueDB says:

    I’d be working up my discovery motion and UCI motion as early as possible.

    You can work up quite a number of things, but it still won’t get anyone President Obama’s BC/COLB/Whatever goal-post this week…[snicker]

  15. Christopher Mathews says:

    Was there some evidence of unlawful command influence in the Manning case, or are we just assuming it exists and then building from there?

  16. Norbrook says:

    CM – I think there are going to be as many hypotheses and conspiracy theories floating around the Manning case as there are around the birthers. I’m already seeing at least three different groups forming up, and it’s going to be interesting, to put it mildly.

  17. John Harwood says:

    DP, like I said, I haven’t any more info than can be found in the newspapers. I just know PFC Manning has been in PTC since May (I believe), he supposedly was bragging in an on-line chat forum that he’d been the one to leak classified video footage of an Apache lighting up some civilians as well as some diplomatic cables. Besides everyone else saying Manning is behind the leak, I don’t have any more info.

    And I thought it funny you’d chide me to “keep the political commentary to facts” after you write a sentence like: “the cover-up/”damage control” issues might very well prompt this case to slide into federal court to avoid questions about how a demoted SPC, who is facing an Administrative Separation Action, does not have his TS/SCI “access” suspended on the SIPRNET, and how he got access to the “diplomatic” portion of it.”

    Hello Kettle, my name is Pot. You’re black.

  18. sg says:

    Well, as we all know, some military personnel have always believed that all courts-martial are tainted by command influence.
    There’s been a huge upsurge of such claims among liberal groups recently. They apparently never thought about the military justice system at all until this case. For some people on the left (a small but extremely vocal group) Manning is a hero who should be given a medal, and the fact that it is their hero going through the system is probably the first time any of them ever gave the system any thought. But since it involves the military, there must be something evil about it.
    There’s also the group of lefties for whom the Obama administration are nothing more than a bunch of Quislings and “Conservatives (or worse, MODERATES) in disguise!!1!eleven!exclamation point!” who think that this whole thing is intentional torture.
    The Venn diagram of these two groups isn’t two concentric circles, but there’s a LOT of overlap.

  19. John Harwood says:

    Judge Mathews, I’m not assuming there’s UCI, and I certainly haven’t seen any evidence of it. All I’m saying is that if I were representing Manning, I’d have that motion ginned up and ready to go. When POTUS, VPOTUS, SECSTATE, SECDEF, CJCS, et al. have commented on your case, I think you gotta raise UCI. Make TC prove BRD that it doesn’t exist. I was just talking trial strategy, not making an accusation.

  20. mari says:

    el cravat loco!!!! That is just priceless! Moi, j’aime l’ascot.

  21. Christopher Mathews says:

    John, I think you’d be remiss not to have the motion ginned up. That said, I don’t see any evidence of UCI, either.

  22. Cheap Seats says:

    Judge Matthews, don’t forget that APPARENT UCI is just as fatal to the government as ACTUAL UCI. So, obviously one can surmise there is a stink in the air without actually seeing a skunk. Should be a fun trial. Doubt we’ll see quite the Lakin numbers of comments, though.

  23. Tekriter says:

    Is a transcript available (to us outsiders, that is) of the proceedings in the Lakin trial?

  24. Anonymous says:

    Back in September Reality Check asked on this blog, “Is it going to be like the old Mickey Rooney movies where Jensen comes into court and says “I know, let’s do a show!”? Ask and you shall receive, RC… Orly Taitz is suggesting exactly that on her blog — a play about Lakin’s “life and trial,” which could be “a drama or a musical,” with a “working title” of “American POW in America,” and because of her experience volunteering at her kids’ school, “[she knows] how to make it work.” Her preferred venue is “theaters by military bases.” Ought to be fun.

  25. sg says:

    Normally, I would say that you’re kidding, but this IS Orly Taitz we’re talking about. I wonder if she’s thinking of using the admission proceeds to cover the $20,000 fine?

  26. Dew_Process says:

    Tekriter, because the military is still literallly in the Stone Ages when it comes to court transcriptions, it will be months [Lakin will probably be out of prison by then] before a “preliminary” transcript is done. Then it must be “proofread” [another bizarre anachronism that a “certified shorthand reporter” could eliminate] by counsel and the Military Judge who then signs / authenticates it. At that point, you could make a Freedom of Information act request to obtain a copy.

  27. Rickey says:

    I would just like to echo what others have said. While the Lakin case broke no new legal ground, it is what brought many of us outsiders to this site. I have learned more about the military justice system in the past few months than I had known previously. I am a Navy veteran and know a bit about how the military works, and I know my way around civilian criminal and civil courts, but I have picked up a lot of new information here.

    I also appreciate the hospitality shown by the resident legal eagles and regulars to us non-lawyers. I plan to continue checking in from time to time.