Judge Michael Malihi found that the witnesses and other evidence produced by the plaintiffs concerning the President’s place of birth had “little, if any, probative value.”  The judge further concluded that even though the President’s father was not a U.S. citizen, the President himself is a natural born citizen within the meaning of Article II. 

The full opinion can be viewed here.

Our prior coverage of this unusual appeal can be found here.  In summary:  1st Lt Patrick T. Burke was tried by a military judge sitting as a general court-martial, and was found not guilty only by reason of lack of mental responsibility.  The government thereupon filed an Article 62 notice of appeal, indicating that it had consulted with appellate government counsel and the convening authority’s SJA and stating, in pertinent part, “The Government intends to appeal the order or ruling of the Military Judge that terminated the proceedings.”  Precisely how the government planned to appeal an acquittal was not made clear; but as one of my colleagues here in Las Vegas (a former AF trial defense counsel) speculated, “Maybe the government thinks insanity acquittals should be best two out of three.”

Alas, we will never know.  Today, the government sent notice to the Air Force Court of Criminal Appeals that it would not, in fact, file an Article 62 appeal in Burke.

In United States v. Hathorne, Misc. Dkt No. 2001-02 (AFCCA 4 Oct 2011) , the Air Force Court of Criminal Appeals granted yet another government appeal, holding that a convening authority’s order to speak subject to a grant of immunity does not mandate suppression of the immunee’s otherwise-admissible confession, if the confession was given without knowledge of the grant and order.

Airman First Class (A1C) Hathorne was identified as a potential witness in the court-martial of another airman, A1C JF, scheduled to be tried on drug charges at Holloman AFB, New Mexico.  During the course of preparing for trial, base officials learned that A1C Hathorne himself apparently used illegal drugs, and — fearing he would not cooperate in A1C JF’s prosecution — decided to ask the convening authority to grant him immunity.  On 3 Feb 2011, the convening authority sent the base legal office a memorandum containing a grant of immunity for A1C Hathorne and an order to answer questions from counsel.

The next day, trial counsel interviewed A1C Hathorne without informing him of the convening authority’s correspondence.  A1C Hathorne was advised of his rights, waived them, and confessed to a single use of cocaine in 2010.  A1C Hathorne did not learn of the grant of immunity until four days later, when A1C JF’s counsel provided him a copy during their interview with him.  A1C JF pled guilty pursuant to a PTA, and a month later, the government preferred a single charge and specification of wrongful use of cocaine against A1C Hathorne.

At trial, the military judge found that the trial counsel’s actions, while “technically … correct under the Constitution and Article 31,” were inconsistent with “the law and fundamental notions of fairness.”  The grant of immunity was effective by its plain language when it was issued, the military judge ruled, and the government had not met its burden under Kastigar v. United States,  406 U.S. 441 (1972), of showing that its evidence against the accused was derived from a source wholly independent of the immunized statement.   Accordingly, the judge ordered dismissal of the charge and its specification with prejudice.

The service court framed the trial judge’s order thusly: 

The military judge found that from the moment the GCMCA signed the grant of testimonial immunity on 3 February 2011, the appellee’s statements were cloaked with immunity despite the fact that the appellee was unaware of the immunity and order, did not rely upon it, and after being read his Article 31 rights, waived his right against self-incrimination and confessed his use of cocaine to the trial counsel. 

Against that backdrop, the CCA’s decision reversing the trial judge is not surprising.  Because the accused had never asserted his right against self-incrimination prior to questioning by the trial counsel, the CCA held, there was no refusal for the grant and order to overcome, and because the accused did not rely on the grant and was unaware of the order, his confession was voluntary.  The service court also concluded that the trial counsel’s decision to pocket the grant and order and to use them only if the accused refused to speak was within the trial counsel’s authority and not inconsistent with the convening authority’s intent — i.e., to overcome refusal and compel answers from the accused.

We learn from the opinion that Airman First Class Scott M. Dease, Jr., consented to the search and seizure of his urine for testing.  Five days after the specimen was collected, while it was awaiting shipment to the Air Force Drug Testing Laboratory (AFDTL), A1C Dease revoked his consent to search or perform “any other procedure.”   The Air Force tested his urine specimen anyway and AFDTL reported a positive test for cocaine.  A1C Dease then confessed, presumably (although the opinion doesn’t make this clear) on being confronted with the positive test result.

At trial, the military judge granted the accused’s motion to supress the test results and the confession.  Rejecting the government’s analogy to California v. Greenwood, 486 U.S. 35 (1988), in which the Supreme Court held that a person loses his reasonable expectation of privacy in his rubbbish when it is placed on the curb for collection, the trial judge instead relied on United States v. Pond, 36 M.J. 1050 (recon) (AFCMR 1993), to conclude that an accused “maintains a significant privacy interest in the urine sample.”  The governmment appealed pursuant to Article 62, UCMJ, and the service court reversed.

AFCCA held that once a sample is validly obtained, either by consent, by a warrant, or under exigent circumstances supported by probable cause, the reasonable expectation of privacy no longer exists.  Unlike other property which an accused might reasonably expect to be returned, “urine is by definition a waste product which will ultimately be destroyed and in which no continuing reasonable expectation of privacy exists.”  Human experience, the court wrote, is to abandon such excreta, not to preserve it.  The accused thus abandoned his expectation of privacy in his urine specimen when he delivered it to the government for testing.  A1C Dease had no Fourth Amendment protection to be reclaimed by revoking his consent.

NOTE:  The Dease decision appears to be one of the first participated in by AFCCA reserve Judge Melissa Saragosa.  In civilian life, Judge Saragosa is … well, still Judge Saragosa, presiding in Justice Court in Clark County, Nevada.  A welcome to the bench would be a trifle redundant under the circumstances, but we’ll do it anyway:  welcome aboard!

SrA Datavs was tried in 2009 by a panel of officer and enlisted members on one specification of making a false official statement, in violation of UCMJ Article 107 , and two specifications of forcible sodomy, in violation of Article 125.  He pled not guilty to all three specifications but was convicted despite his pleas.  The members sentenced him to a dishonorable discharge, reduction to E-1, and total forfeitures.  The convening authority approved the sentence as adjudged. 

On appeal, SrA Datavs made four assignments of error: ineffective assistance of counsel, error by the military judge in limiting argument concerning sex offender registration, violation of RCM 1107 by imposition of total forfeitures with no confinement, and inappropriate sentence severity.  The government conceded the RCM 1107 violation, but otherwise urged the court to reject the appellant’s claims.  The court granted oral argument on the first assignment of error, concerning the performance of the trial defense team. 

The primary focus of the argument was on whether the trial defense counsel violated Strickland and Polk by failing to pursue appointment of a defense expert consultant in the field of sexual assault exams.  The government had an expert who testified that the victim sustained injuries consistent with forcible anal sodomy.  The defense requested an expert prior to trial, but the convening authority rejected their request.  The defense then moved to compel appointment of an expert consultant, but withdrew the request pursuant to an agreement limiting the scope of the government expert’s testimony.

On appeal, SrA Datavs argued that his counsel should not have given up on obtaining their own expert.  His appellate defense counsel, Major Michael Kerr, noted that such requests are routinely granted and cited post-trial submissions by the requested expert that contradicted the government witness’ testimony as evidence that the trial team should have persisted.  Without a defense expert, the cross-examination of the government witness was largely unsuccessful, and only one side of the case was presented to the members.

Government counsel, Captain Michael Rakowski, argued that the trial defense team adequately explained their strategy in the post-trial affidavits filed with the court.  In essence, the trial team believed they could successfully counter the testimony of the government expert, who they thought would be equivocal when crossed on the issue of consent .  They were concerned that persisting in their request for an expert would lead to a delay they did not want, because they knew of two witnesses who the prosecution team had not identified and whose testimony would be damaging.  They feared the government would find those witnesses during a delay and on balance concluded foregoing an expert was the better option.  Capt Rakowski argued that even if the defense strategy was deemed deficient, there was no prejudice, because the victim’s testimony alone would have been enough to secure a conviction.  He also noted that the trial defense team achieved an excellent result on sentencing — no confinement, despite a conviction on two specifications of forcible sodomy, is by almost any measure a defense win. 

Maj Kerr argued that the light sentence did not absolve the trial defense team of any shortcomings in the findings phase of the case.  If anything, he argued, the sentence could be construed as evidence that the members considered the government’s case to be weak.  He also took issue with the notion that the trial defense counsel had enough information to formulate a strategy, pointing to language in the original consultant request stating that the defense team had neither the training nor the experience to defend the case without expert assistance.  Whatever strategies they may have settled on thereafter could not be defended, he argued:  “Uneducated counsel cannot make strategic decisions.”  Moreover, because the military judge ultimately granted a delay despite the trial defense team’s wishes, they should have realized that the advantage they sought to gain by foregoing an expert was lost and renewed their request. 

The judges seemed troubled by the deal between the government and the defense.  Given the nature of the defense concerns (i.e., that the government was unaware of certain evidence), it would have been virtually impossible for the defense to fully explain why they were agreeing to what one judge called a sub-rosa agreement.  In my experience, when faced with withdrawal of a motion for an expert, the trial judge would ordinarily ask the accused whether his counsel advised him of their reasons for withdrawing the request and whether he believed their decision was in his best interest; but neither counsel suggested that such a colloquy occurred in this case.

The judges were also concerned about the trial defense counsel’s assertion that they lacked sufficient expertise to try the case without a consultant.  It’s easy to envision a distinction between the expertise needed to choose between several possible trial strategies and the expertise needed to pursue one or more of those possible paths: for instance, a counsel might not need the assistance of a DNA expert to determine that mistaken identity will not be a viable defense, even though such an expert would be required if identity was going to be the issue.  In some cases, however, the assistance of the expert might be needed to choose between strategies.  Neither side explored this issue in depth during argument.  It will be interesting to see how the court addresses it when the decision is released.

* Disclosure note: the senior trial defense counsel worked for me indirectly prior to my retirement.

There are a number of disturbing aspects to the events related in the story, including claims that some of the brigade’s officers and NCOs were aware that the team was killing civilians with little or no justification, but did nothing to rein them in.  One passage describes how members of the team, including SPC Jeremy Morlock, who recently pled guilty to three specifications of murder at a general court-martial for his actions as a member of the team, ambushed and shot an unarmed Afghan civilian and then told their officers that he had attacked them.  Even though their story seemed questionable to the senior officer on the scene, it was not challenged: and the officer, Captain Patrick Mitchell, ”did not order his men to render aid to [the wounded civilian], whom he believed might still be alive, and possibly a threat. Instead, he ordered Staff Sgt. Kris Sprague to ‘make sure’ the boy was dead. Sprague raised his rifle and fired twice.”

CNN reports that State Department spokesman P.J. Crowley, who last week went on record calling the treatment of detainee PFC Bradley Manning “ridiculous and counterproductive and stupid,” has resigned. White House officials were reportedly “furious” over Crowley’s comments, and President Obama repudiated the remarks, calling the conditions of Manning’s confinement “appropriate.”

Responding to questions from his audience at M.I.T., however, Crowley lambasted Manning’s treatment as “ridiculous and counterproductive and stupid.” Asked if his remarks were on the record, Crowley replied “sure.”

It will be interesting to see whether DoD has any comment about the remarks.

At least six people are reported dead, along with many others wounded. According to the press, an unnamed federal judge was among the wounded and has died.  

Early reports indicated that Rep. Giffords had also died but those reports were apparently in error; she is now reported to be alive but in critical condition.   The gunman is reportedly in custody.

Rep. Giffords is a member of the House Armed Services Committee and the only member of Congress married to an active-duty servicemember: her husband, Navy Captain Mark Kelly, has piloted space shuttles Endeavor and Discovery.

UPDATE:  An NBC affiliate has identified Chief Judge John M. Roll as the assassinated federal judge. Chief Judge Roll was appointed to the federal bench in 1991 by former President George H.W. Bush.  Roll received death threats last year when he allowed a civil rights lawsuit filed by illegal immigrants to proceed against an Arizona rancher.

UPDATE: Further press reports have identified the shooter as Jared Laughner, who is reportedly in his early 20s and an Afghan war vet.  Other reports have spelled the shooter’s name as “Loughner.”

UPDATE: According to CNN, Rep. Giffords’ doctor says she remains in critical condition following surgery, but he is “very optimistic” about her eventual recovery.

UPDATE: Local media reports say Rep. Giffords was shot “through and through” with a 9mm Glock pistol. She apparently regained consciousness following surgery and was able to recognize her husband, Navy CAPT Mark Kelly, and to speak to people in her hospital room. Former U.S. Surgeon General Richard Carmona, now a professor at the University of Arizona in Tucson, described her head wound as “devastating,” but would not elaborate.

In addition to Chief Judge Roll, five other people were killed: 9-year-old Christina Taylor Green, who was born on 11 Sept 2001; Gabe Zimmerman, 30; Dorothy Murray, 76; Dorwin Stoddard, 76; and Phyllis Schneck, 79.

LTC Lakin, of course, pled guilty, acknowledging that regardless of his personal beliefs, the orders which he chose to disobey were lawful orders.  In sentencing, lead counsel Neal Puckett chose to portray his client as a well-meaning but fundamentally naive man who got bad advice from his former counsel.  This decision probably helped limit his client’s sentence, but it did not sit well with the band of birthers who had for months been cheering LTC Lakin on from the sidelines.  One in particular, Theresa Cao, took personal offense, according to this article from Baltimore Sun reporter Andrea Siegel:

Others were upset with the way Lakin’s civilian defense attorney, Neal A. Puckett, a retired Marine Corps lawyer and lieutenant colonel, spoke about them when he depicted Lakin as a naive man who now realizes that he followed the wrong advice by pressing his questions about Obama with the Army.

“He essentially called us crazy. The audacity of him to call us crazy,” said Theresa Cao … 

Today, according to Slate’s David Weigel, Ms. Cao disrupted the reading of the Constitution on the floor of the House of Representatives, shouting out during the reading of Article II, Section 1′s “natural born citizen” clause, “Except Obama!  Except Obama!  Help us, Jesus!”

Senators invoked cloture on DADT repeal by a 63-33 vote.  The House previously approved the repeal, and with the final Senate vote likely next week, the bill will go to the President for signature. 

Retired USMCR O-5 Albert Diaz, nominated for a seat on the Fourth Circuit Court of Appeals more than a year ago, was unanimously confirmed for that position.  We previously discussed the lengthy delay on the Diaz nomination here and here.

Update: Senators Reid and McConnell have agreed to move the final Senate vote on DADT repeal to 1500 EST today.

Further update:  DADT repeal passes 65-31.  Next stop, the White House.

The sentence is a dismissal, confinement for six months, and forfeiture of all pay and allowances.  The dismissal — the only form of punitive discharge authorized for an officer — is generally regarded as equivalent to a dishonorable discharge and cuts off substantially all benefits incident to military service.  If approved by the convening authority, it will entitle LTC Lakin to automatic review of his case by the Army Court of Criminal Appeals.  He can waive that review, but such waivers are relatively rare.  Unless the convening authority grants a deferment of confinement, LTC Lakin will start his sentence today.

Colonel Sullivan reports that there was no reaction from LTC Lakin or from the half-dozen or so birthers remaining in the spectators’ gallery.  The military judge thanked the members for their service, and excused them.  The courtroom was then cleared to allow LTC Lakin privacy.

Thanks to all who participated in the discussions here the past few days.  With very few exceptions, the questions and comments were excellent. 

Colonel Sullivan will likely be on later to post his observations first-hand; if there are any further radio interviews, we will link them here.   UPDATE: There will be another discussion of the case tonight at blogtalkradio.  CDR Cave will be a guest; Colonel Sullivan plans to participate as well, although he may be a little late calling in.

Finally, for the weather mavens, we have this post-trial photo of the courthouse: 

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.

The prosecution finished its case by playing an interview with LTC Lakin on the Barry Farber show, in which the accused discussed his rationale for violating orders and refusing to deploy.  The money quote from the interview came when Farber asked Lakin whether, if he had it all to do over again, would he still refuse to deploy.  Lakin’s answer was that yes, he would.

The defense presented two witnesses: an O-6 who deployed with LTC Lakin previously, and a CW3 who had also served with the accused, both of whom testified to his professional qualities and character.  Lakin then gave an unsworn statement in question-and-answer format, taking more than an hour to explain his conduct.  He said he understands the Army is not the place to get answers to his questions, and admitted that he made the wrong call in thinking it was.  He was in tears during parts of his unsworn, and said  he would prefer jail time to dismissal from the service.

Colonel Sullivan reports that Lakin’s attorney, Neal Puckett, asked tough questions: you asked for this court-martial, didn’t you?  Are you proud of what you’ve done?  LTC Lakin said he was not proud, and that if he had it all to do over again, he would not actually refuse to deploy — in fact, he would deploy tomorrow, if he could.  He denied having ever said ”you had your chance” — that statement, he said, came from his former counsel, Paul Jensen. 

The court is in recess until tomorrow.  The prosecution will have an opportunity to put on a rebuttal case, if it chooses, and the defense can surrebut.  The military judge will discuss sentencing instructions with counsel out of the presence of the members and then both sides will give argument.  Judge Lind will instruct the members and they will retire to deliberate on a sentence.  Barring the unexpected, the trial will end tomorrow.

Note: Colonel Sullivan will be on blogtalkradio again at 2100 hours tonight with retired commander Phil Cave and Fogbow blogger Mata Mari to discuss today’s events. As with yesterday’s program, there should be plenty of additional insights and analysis — tune in if you can.

Sentencing proceedings are underway.

Update:  Colonel Sullivan reports that after receiving the answers to their inquiries (reported in the previous liveblogging entry), the members deliberated for twelve more minutes before returning their verdict.  The court-martial moved immediately to sentencing.

The prosecution played in its entirety LTC Lakin’s YouTube video announcing his plans to refuse to deploy.  At the conclusion of the tape, the birthers in the audience stood and gave sustained applause.  The military judge did not gavel the court to order; she simply let them finish.  I am reasonably certain that their outburst will not count against the accused; but in no way could it have helped.

The prosecution called Colonel Roberts, the brigade commander and MOH recipient, to the stand as their first live witness.  He testified that the accused’s behavior was unprofessional and had a negative impact on the unit.  Cross examination was limited and, according to Colonel Sullivan, “didn’t really go anywhere.” 

MAJ Dobson, the doctor who had to replace LTC Lakin on short notice, testified next.  He recounted how two days after arriving in theatre, the unit suffered a mass-casualty attack, with sixteen wounded.  He said that he was not, in his opinion, as well-prepared to deal with the attack as he would have been had he had longer to prepare for operations at the FOB.  The defense suggested on cross that the deployment was probably a good career opportunity for the major personally.  Another point which will likely not go over well.

The next witness was MAJ Dobson’s wife, herself a combat veteran, who testified that she and her husband had to forego some coursework they had planned to take together, and that as a result of his short-notice deployment, he missed the award ceremony in which she was awarded the Bronze Star.  She also testified about how hard it was to prepare their young son for his dad’s sudden and unexpected departure.

Sentencing resumed at 1545.  So far, not a good day for the accused.

Note: During sentencing deliberations, the members may each propose a sentence.  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.  There are different rules in capital cases and cases in which the possibility of confinement exceeds ten years, but those rules don’t apply here. 

There are eight members of the court-martial.  To reach the two-thirds threshold requires six votes.

Mr. Puckett did not tip his hand yesterday regarding his strategy.  There may be a motion for a finding of not guilty, although the odds of success on such a motion seemed to decline with yesterday’s testimony. The defense could rest without presenting evidence or may put the accused on the stand. Rebuttal and surrebuttal, if any, will be determined by the scope of the defense case. Barring the out of the ordinary, presentation of evidence on findings should wrap up this morning.

Next, Judge Lind will discuss instructions with counsel out of the presence of the members. If the contested charge has survived motions, they’ll discuss findings instructions and — because there will be a sentencing phase regardless of how the contested charge is resolved — may cover some sentencing matters as well. If there is still a contested charge, the members will be brought back to the courtroom, counsel will give findings argument, and the members will then retire to deliberate.  Sentencing will follow their verdict; the members will likely hear an unsworn statement from LTC Lakin and there may be witness testimony as well.

We’ll have updates from the colonel as events warrant.

If you missed RealityCheck’s interview last night with Colonel Sullivan, retired CDR Phil Cave (whose rank I inadvertently omitted in previous posts — mea culpa), and Fogbow blogger Mata Mari, you can still find it online here: blogtalkradio.

0945:  Update from the colonel: the defense rested without presenting any evidence.

The defense team has asked that the members be instructed on the lesser-included offense of failure to go under Article 86, and has waived any issue as to whether it is a proper LIO of missing movement.  Judge Lind has not decided whether to give the instruction.  The court-martial will resume at 1030 hours.

One other note: Pastor Manning, one of the birthers attending the trial, left the courtroom escorted by security and has not returned.  No word on what prompted his departure.

1345:  Closing arguments have been completed.  According to Colonel Sullivan, the defense did not argue for a full acquittal on the missing movement charge, but instead contended that LTC Lakin is guilty only of the lesser included offense of failure to go to his appointed place of duty, in violation of Article 86.  The maximum punishment for the LIO is one month versus two years for missing movment by design under Article 87.

The members, after a brief deliberation, returned to the court to make four requests, seeking:  1) evidence concerning the dates of the accused’s pre-deployment leave; 2) the leave form; 3) the date on which the accused’s replacement reported to the unit; and 4) a definition of the term “required”  as used in the Article 87 spec.

The court is on recess and will reconvene at 1400.

1530:  Guilty as charged.

According to LTC Lakin, his former counsel, Paul Rolf Jensen, told him that although disobeying military orders would be consistent with Lakin’s thinking, he specifically said “I can’t ethically advise you to disobey” those orders. This testimony came during the providency inquiry and was not heard by the members; but it is part of the record and can be presented to them in sentencing.

The most damaging evidence of the day came during the testimony of the accused’s brigade commander, Colonel Gordon Roberts. The accused and Mr. Jensen came to visit with Colonel Roberts on March 30, 2010, but the colonel was attending to other matters and couldn’t meet with them then. When Colonel Roberts summoned Lakin to his office the following day, he received this response: “You had your chance.”  This testimony was before the members, and Colonel Sullivan is of the opinion that the accused’s insolence toward his commander — a Medal of Honor recipient — did not go over well at all.

On the contested offense, the defense theory appears to be that no one told the accused to be on the flight alleged on the charge sheet. If true, it would be difficult to see how the prosecution could secure a conviction in light of United States v. Kapple, 40 M.J. 472 (C.M.A. 1994), as we discussed last month here.  According to Colonel Sullivan, the defense appeared to making some headway — no one said they specifically told the accused to be on that specific flight — until the next-to-last witness, LTC Christine Edwards. She testified that the brigade commander told her to tell Lakin ”his place of duty is on that airplane.” She said that’s the order she relayed to the accused.

We will see if he testifies to a contrary version of events tomorrow.

SPECIAL NOTE:  Colonel Sullivan and civilian attorney and military justice maven Phil Cave will be on blogtalkradio tonight at 2100 EST to discuss the day’s events. Should be lots of additional insights and analysis to be had then.

LTC Lakin pled guilty to all four of the Article 92 specifications alleged in Charge II (media reports had suggested mixed pleas to these offenses). The accused pled not guilty to Charge I and its Specification, which allege the offense of missing movement.

During the hour-and-a-half long Care inquiry, LTC Lakin acknowledged no less than half a dozen times that the orders he received were lawful, and that he in fact had a duty to obey them. Judge Lind found his guilty pleas to be provident and accepted them. The defense then moved to dismiss the dereliction of duty spec as an unreasonable multiplication of charges in light of the accused’s guilty plea to Specification 3. The prosecution did not oppose the motion, and Judge Lind granted it. She then entered guilty findings on Specifications 1-3 of Charge II and on Charge II itself.

LTC Lakin elected to be tried by a panel of officers. The defense asked the judge to advise the members that LTC Lakin had pled guilty to violating lawful orders, and that his pleas were accepted. Neither side attempted to use voir dire to explore their theory of the case.  Of the ten officers named to the court by the convening authority, nine had heard about the case; one expressed an opinion negative to the accused, and the judge granted a challenge for cause for that member.  The prosecution did not exercise any peremptory challenges; the defense challenged one member, leaving eight. All are O-6s. 

The state of play now is as follows: trial will begin at 1500 hours with opening statements on the missing movement offense. Regardless of how the members find on that offense, LTC Lakin will proceed to sentencing. He is, on the evidence and by his own admission under oath, a criminal to be sentenced in accordance with the UCMJ.

Update: Many folks had wondered whether there would be a deal in the case. There was no deal.

Some additional comments from the colonel: there were no signs of protest outside Fort Meade, but many luminaries of the birther movement are present in the courtroom, including Orly Taitz and Charles Kerchner. Decorum in the court has generally been good.

Background: LTC Terrrence L. Lakin is charged with one specification of missing movement, in violation of UCMJ Article 87 (10 USC 887); three specifications of failing to obey a lawful order, and one specification of dereliction of duty, all in violation of Article 92, UCMJ (10 USC 892). 

0745: Colonel Sullivan is at the site of the trial. It’s cold and snowing; no word on any protestors. 

He reports “the word on the street” is that the accused will plead guilty to at least some of the Article 92 specifications and may litigate the Article 87 specification. Possible avenues of defense on that specification were previously discussed on CAAFlog here and here. 

A guilty plea to any of the Article 92 specifications would essentially abandon the cherished birther claim that no military orders are lawful under President Obama. Specifications 1-3 of Charge II explicitly allege that the orders were lawful; Specification 4, the dereliction of duty specification, is predicated on the accused’s obligation to report to Fort Campbell in accordance with temporary change of station orders issued in support of Operation Enduring Freedom by Colonel Peter McHugh.  If those orders were unlawful, there could be no duty and hence, no dereliction. 

0755: Further word from Col Sullivan – the defense team will argue that the Article 92 specifications are multiplicious. On their face, Specifications 1 and 2 of Charge II allege failure to obey orders to report to the brigade commander’s office (issued by two different officers), while Specifications 3 and 4 allege a failure to report to Fort Campbell pursuant to an order issued by the same person. Spec 3 alleges the failure to report as a failure to obey a lawful order; Spec 4 alleges it as a dereliction of duty. 

1015: The Lakinista site, safeguardourconstitution.com, has a post on its front page indicating the court-martial “is proceeding on Jan 14-15,” and another next to it saying that the trial is scheduled for December 14-16. There’s probably a valuable lesson in those conflicting bits of information, but at the moment, I can’t quite put my finger on it. 

1215: Associated Press reports Lakin entered a guilty plea on at least one specification under Charge II. If this is correct, it means the accused has abandoned the birther claim that no military orders issued while President Obama is commander-in-chief are lawful.  AP confirms Colonel Sullivan’s earlier reporting that the defense will litigate the missing movement charge. 

For those unfamiliar with the court-martial process: to plead guilty, a military accused must enter into a colloquy with the military judge in which the judge explains the elements of each offense and the legal definitions that accompany it.  See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969). The accused has an opportunity to discuss the elements and the definitions with the judge, who must be satisfied that the accused understands them before accepting his plea.  The accused must also describe under oath the acts he committed that give rise to his plea, so that the judge is satisfied that he is, in fact, guilty.  If the accused makes statements or offers evidence inconsistent with his plea, it cannot be accepted, and the military judge must reopen the discussion with the accused  (formally referred to as a “providency inquiry” or more often and informally known as a ”Care inquiry”) to resolve the inconsistency; or, if it cannot be resolved, reject the plea and enter a not guilty plea on his behalf.  UCMJ Article 45(a).

Per press reports, it appears LTC Lakin entered guilty pleas to three of the specifications of Charge II. For those pleas to be accepted, he would have to explicitly admit that the orders he received were lawful orders which he had a duty to obey.

Thanks to commenter Ouch for the heads-up on the interview.

Ms. Taitz, who represented Army CPT Connie Rhodes in her challenge to the President’s eligibility (and who may have exceeded her client’s direction in doing so, according to this letter from CPT Rhodes), was cited last year by Judge Land for violating Fed.R.Civ.P. 11.  In a foreshadowing of United States v. Lakin, Judge Land noted that Ms. Taitz “provided no legal authority to support the proposition that even if the President were found not to be eligible for the office, that this would mean all soldiers in the military would be authorized to disregard their duty as American soldiers and disobey orders from their chain of command.”  Rhodes v. MacDonald, 670 F. Supp. 2d 1363, 1376-77 (M.D. Ga. 2009), aff’d, No. 09-15418 (11th Cir. Mar. 15, 2010).  The judge concluded that the action brought and maintained by Ms. Taitz was an attempt “to use the legal process for an improper purpose” — i.e., the political goal of removing the President. Id., 670 F. Supp. 2d at 1379.

After losing her bid to have the sanctions overturned by the Eleventh Circuit, Ms. Taitz sought a stay from Justice Thomas, who turned her down.  She was undeterred: “It was never seen by Justice Thomas, there’s not evidence it was seen by Justice Thomas.”  With her request now rejected by the full Court, she reportedly questions whether the justices actually decided her request:

Taitz told TPMMuckraker she is convinced that none of the members of the court read her request, and that clerks made the decision for the justices.

Ms. Taitz claims she is in no danger of failing to pay her fine, when and if she accepts its legitimacy: “I have means to pay, the public is collecting funds … Within a month, I will have the $20,000.”

According to the website supporting LTC Terrence Lakin, the convening authority has referred the charges to a general court-martial. The detailed military judge is Army COL Denise R. Lind. Arraignment is set for this Friday.

The press release contains little new, but it does feature a quote from LTC Lakin that sums up his defense more succinctly than before:

If President Obama is a natural born citizen then the American people deserve to see proof, and if he is not, then I believe the orders in this case were illegal.

Regrettably, there is still no explanation regarding why the specific orders issued to LTC Lakin in this case were illegal.  The oft-repeated birther argument that all military orders must be invalid if the President is not a natural-born citizen appears to be the only theory on which the defense relies. 

Thanks to commenter Reality Check for providing a heads-up on this story in the comment threads below.

Lakin says he “invited” a court-martial because he did not see Congress or the courts “stepping up to the plate” to address the question of the President’s eligibility.  The Congress, of course, certified the electoral college vote prior to the President’s inauguration and the courts have repeatedly rejected prior birther suits; but Lakin does not mention these facts in the video or explain why these are not in his view examples of stepping up.  Lakin also does not explain why he believes he was entitled to disobey the orders of his immediate superiors or his deployment orders while at the same time exercising the authority of his own rank and drawing a military paycheck.   Perhaps these issues will be addressed in a future video release, or during his cross-examination.

While mostly a rehash of the accused’s former statements, the video does contain one interesting nugget of information:  Lakin says “If the original birth certificate is released and validated, I would gladly deploy immediately.”  Putting aside the question of what sort of “validation” would be required (the video is silent on that point), it appears that he has for now decided not to pursue any of the various other birther theories of Presidential disqualification.