The Fogbow has links to a couple of new items relevant to the Lakin case.  First, there’s this post on the Puckett & Faraj website by LTC Lakin’s civilian defense counsel, Neal Puckett, further discussing the case.  Then there’s this letter from LTC Lakin discussing the conditions of his confinement at the  Midwest Joint Regional Correctional Facility, Fort Leavenworth.  The letter was posted on the  Terry Lakin Action Fund website, which also indicates that later today, LTC Lakin’s wife will be posting a report about her visit with her husband.

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.

WorldNetDaily has posted this report about LTC Lakin’s supporters’ campaign to obtain clemency for him.  The article provides a mailing address for supporters to send letters, cards, and money orders to him.  That address is 830 Sabalu Road, Fort Leavenworth.

The USDB is on Warehouse Road.  The new Midwest Joint Regional Correctional Facility, which opened in September and started receiving inmates in October, is at 830 Sabalu Road.  It replaces and consolidates confinement facilities at Fort Sill, Fort Knox, and Lackland Air Force Base.  So LTC Lakin will apparently serve his sentence not at the USDB, but at the Midwest Joint Regional Correctional Facility.  That new facility is just a few hundred yards away from the USDB.

The road on which the new confinement facility sits is named for Master Sergeant Wilberto Sabalu Jr., an MP and corrections specialist who was killed alongside COL James Harrison while they served as detention mentors for the Afghan National Army in 2007.

BadFiction links to this press release from Neal Puckett’s law firm, which explains some of the tactical thinking behind the defense’s sentencing case.

It includes the interesting revelation that the client didn’t know that his counsel would aggressively challenge him during the unsworn statement:

Puckett raised his voice and proceeded to point out through questions and answers from Lakin how he had let down his family, the Army, his Soldiers, and those who need his medical services on the battlefield. This defense tactic totally surprised the client, but enabled the jury to see the depth and agony of the moral issues that led Lakin to make those choices.

The press release also confirms that, consistent with standard practice, LTC Lakin entered confinement yesterday.

The members’ sentencing deliberations lasted a surprisingly long time.  Deliberations started at 1057 and the sentence was announced at 1545.  Removing times when the court was in recess, the members deliberated for four-and-a-half hours. 

At the start of the trial, the courtroom was almost full.  By its end, the courtroom was almost empty.  Just six birthers and a smattering of other observers remained. 

An NCO came into the gallery before the final session commenced to ask everyone to exit the back of the courtroom once the court adjourned so LTC Lakin could have some time with his family.  (His parents and two brothers sat in the front row behind the defense table.)  The members then came out, Judge Lind inspected the sentence worksheet and the President read the sentence of total forfeitures, confinement for six months and a dismissal.  There was no reaction in the courtroom.  Judge Lind thanked the members, who quickly exited the courtroom.  Judge Lind asked each side if there was anything else to take up. Both sides’ counsel said no.  Judge Lind adjourned the court and it was over.

In light of military good-time regulations, LTC Lakin will probably be released from confinement five months from today.

No doubt we’ll have cause to revisit the Lakin case from time-to-time.  It will, after all, qualify for an automatic appeal to ACCA if the CA approves the dismissal.  But this post will end our obsessive constant coverage of the strange and sad case of United States v. LTC Terrence Lakin — a case that he and his supporters viewed as LTC Terrence Lakin v. Barack Obama but that was actually LTC Terrence Lakin v. United States Army.

Neal Puckett’s sentencing argument lasted about 25 minutes.  The argument painted LTC Lakin as naive and obsessed.  It centered on a metaphor in which Mr. Jensen was a quack doctor who convinced Lakin he had cancer and needed experimental treatment with dangerous side-effects.  But LTC Lakin now understands he doesn’t have cancer and should be given another chance with this new-found understanding.

Mr. Puckett began with a joke I couldn’t quite hear.  Then, nodding toward CPT O’Beirne, he said, “That was a really good speech.  I enjoyed it.”  But he said it must have been written before LTC Lakin gave his unsworn statement because its characterization of what he said was inaccurate.

He asked the members, “Have you ever anyone quite like Dr. Lakin?”  Mr. Puckett described LTC Lakin was “kind, compassionate, duty-bound, simple, and extremely patriotic.”  He asked how there could be a greater display of patriotism than a willingness to sacrifice a military career to what he believed at the time was the higher cause of the Constitution. 

Mr. Puckett also called LTC Lakin “simple” and “facile” before labelling him as “one of the most naive gentlemen you ever met.”  He never believed someone would lead him astray because he trusts people.  “He loves Soldiers.  He is not the average Army lieutenant colonel.  He is not the average Army doctor.”  “His motives were never to shirk hazardous duty.  He’d been on three prior deployments.  He’d been to war.  It wasn’t about that.”

“Dr. Lakin innocently and naively thought” that disobeying orders “was the only choice he had.”  Mr. Puckett told the members that “the Army didn’t fail him.  The Chief of Staff didn’t fail him.  He had questions and concerns.  And it became an obsession with him.”  He compared LTC Lakin to someone with obsessive-compulsive disorder.  Mr. Puckett then explained that he obsesses over people who don’t board airplanes and “get their butts in the seat” quickly enough.  But Dr. Lakin’s obsession was the President’s eligibility.  “And it ate away at him.”

Mr. Puckett then launched into his metaphor.  Imagine an American named Lakin who is fit, eats well, and exercises every day.  He wakes up one day and doesn’t feel well.  This continues.  Something’s wrong with his constitution.  He decides to see a doctor, and someone refers him to a doctor in California.  The doctor says he’s not a specialist, but believes that Lakin has a rare form of cancer that’s upsetting his constitution.  He says, “I’m not an oncologist, but there’s this treatment.  It might have adverse side effects.  But it might be your only hope.”  That doctor is Dr. Jensen.  Lakin then sees a specialist — Dr. Kemkes.  Dr. Kemkes says, “You don’t have cancer.  There’s nothing wrong with you.  Go back to work.  Get more sleep.  Don’t take the experimental treatment.”  But Lakin is upset, because he thinks he has cancer.  He wants to kill the cancer; he doesn’t want to die.  He has a specialist saying he doesn’t have cancer.  But if the specialist is wrong and he doesn’t take the experimental treatment, he might die.  So he decides to take the experimental treatment to keep from dying.  Mr. Puckett told the members, “You might say, ‘I’m going with the specialist.  I’m not going to risk those adverse side effects.”  But Lakin was so obsessed with the threat to his constitution.  Not only did Dr. Jensen talk to him, but lots of other people did, too, and they took the experimental treatment.  He went along because he was so obsessed and so naive.

Mr. Puckett then asked what LTC Lakin really meant when he said he wished he had been advice.  That meant, Mr. Puckett argued, that “he wished  he’d never met Dr. Jensen — Mr. Jensen.”

He then asked, “What’s different between now and March?  He got a new doctor.  That doctor educated him about cancer from the molecular level up.  He’s convinced now he doesn’t have cancer.  He realizes he was wrong — wrong to follow the advice of Dr. Jensen.  He would never say to you, ‘If I had it to do over again, I’d do it again.’  He said that when he thought he had cancer.”

Mr. Puckett then asked, “Why would be punish the Army by dismissing him?”  He also asked how the actions of “one day” could brand his other 17 years of service as dishonorable.  Mr. Puckett proposed an alternative to dismissal or confinement:  “Why don’t we send him to deploy, and then deploy again after that?  Why not send him to the worst duty assignments?”  Mr. Puckett said there were “other options,” the “most obvious” of which was to send Dr. Lakin to jail.  He said there was no need to protect either the Army or society by locking LTC Lakin away in jail.  Such protection is needed from drug dealers and violent criminals, not from LTC Lakin.

Talking about LTC Lakin’s actions, Mr. Puckett said, “This was crazy.  I’ll say it, crazy.  He gets it.  He understands.”  Mr. Puckett then argued that “this gentleman who cares about the Constitution has voted in his last election.”  The trial counsel objected.  Mr. Puckett continued, “He won’t be able to own a firearm.”  Judge Lind then said, “Sustained.”  Mr. Puckett then said, “He’ll have a general court-martial conviction on his record for the rest of his life.  That’s punishment.  Will he ever be a colonel? No.”  He urged the members to let the Army decide whether to administratively separate LTC Lakin, perhaps through a BOI or some other way.  The trial counsel objected again, but this time the objection was overruled.  Mr. Puckett then urged the members to let HRC and the Secretary of the Army decide whether to separate LTC Lakin.

Mr. Puckett continued, “Consider what was going through his wrong-headed mind at the time.  He’s back from that place.  He saw a mirage.  That’s all it was, just a mirage.”

Mr. Puckett then asked the members to “consider his family at Christmas.”  He argued that there’s “no need to warehouse him at society’s expense.  Don’t send him to jail.  That little 3-year-old cherub shouldn’t have to see his father in jail.”  Mr. Puckett proposed that the members instead adjudge a written reprimand, “some forfeitures,” and restriction to place of duty.  “Make him stay at work.  He has a federal conviction.”

Mr. Puckett told the members, “We’re constantly reminded that when you leave the Army, someone else will take your place.  When you can’t make a deployment, someone else will take your place.”  He then acknowledged that it was “not right” that MAJ Dobson had to move up his deployment, but he said we’ve all known people who had to deploy on short notice — sometimes even shorter than that which MAJ Dobson received.

Mr. Puckett then turned to the looming “You had your chance” comment.  “Did he personally disrespect COL Roberts?  No. Mr. Jensen did that.  He didn’t direct that or authorize that.  That was Mr. Jensen.”  In light of the government’s failure to rebut that allegation from LTC Lakin’s unsworn statement when the government had the relevant witness available, I assume that’s true, though the way Mr. Puckett argued it seemed to introduce some facts from outside the record. (I don’t believe that LTC Lakin stated that he neither directed nor authorized Mr.Jensen to make that remark, though I have no reason to believe that statement was untrue.)

Mr. Puckett then argued that general deterrence is unnecessary.  “This isn’t about sending a message.  There’s no need for harsh punishment so others won’t do what he did.  Dr. Lakin is unique in his personality, background, approach to this issue, and in his obsession.  There are no other Dr. Lakins out there for you to make an example of him for.”

Mr. Puckett then argued that LTC Lakin was really guilty of only one offense.  “Missing movement is simply the natural and probable consequence of the real offense.  There is only one real offense — he didn’t report to his unit to deploy.  That’s what this is really about.  He didn’t go to Fort Campbell.  Understand it was a misguided obsession that caused him to make this strange, odd, inexplicable to us, decision.”

Mr. Puckett continued to argue against a dismissal and against confinement:  “He’s ready to be used as the Army would use him.  A good use would not be to warehouse him in a jail.  All the time during all this hoopla, he went to work every day.”  At that point the trial counsel made a facts-not-in-evidence objection, which the military judge overruled.  Mr. Puckett continued, “He could be back at duty at 0730 tomorrow treating patients.  Make him work harder.  He does have a debt to the Army.  Make him work it off.  Someone else, the Secretary of the Army, can consider whether he can retire.  Make him work it off.”

Mr. Puckett finished with:  “Please do not characterize his career as dishonorable.  Please do not send him to jail unnecessarily.  Merry Christmas.”

CPT O’Beirne’s sentencing argument for the government was masterful.  The argument lasted 20 minutes and was delivered in a low-key, earnest manner.  My hasty notes won’t do it full justice.  Perhaps we’ll be able to post the whole thing when the trial transcript becomes available.

He began with words to the effect of:  “The accused refused to deploy as a tool to score political points for a political cause. . . .  He made a spectacle of those crimes.  And he’s not sorry.  . . .  The accused in his unsworn statement showed no remorse.  He said the Army and chain of command didn’t properly answer his questions.  That’s not what happened.  He wasn’t given unlawful orders.  He wasn’t told to execute prisoners.  He was told to do his job.  . . .  The accused asked what else he could do.  He said he didn’t get an answer.  ‘No’ is an answer.  He just didn’t like the answer.”

CPT O’Beirne told the members they would receive LTC Lakin’s Article 138 complain.  He then read parts of it and summarized its concluding paragraph–which alleged that the Army breached its contract with LTC Lakin–as saying, “If General Casey didn’t tell him what he wanted, he would sue the Army.”

CPT O’Beirne argued, “He could have resigned.  He could have gone to his command quietly in February and said, ‘Please don’t make me do this.’  That wouldn’t create a spectacle.  He said twice that he wanted to draw more attention to the issue.”

He continued, “You heard COL Roberts testify. He did everything he could to avoid these crimes.  . . .  COL Roberts practically begged him not to do this.  The accused heard all of it.  And he ignored it and did it anyway.”

CPT O’Beirne then recited a lengthy excerpt from General MacArthur’s “duty, honor, country” speech:

It is to win our wars.  Everything else in your professional career is but corollary to this vital dedication.  All other public purpose, all other public projects, all other public needs, great or small, will find others for their accomplishments; but you are the ones who are trained to fight.

Yours is the profession of arms, the will to win, the sure knowledge that in war there is no substitute for victory, that if you lose, the Nation will be destroyed, that the very obsession of your public service must be Duty, Honor, Country.

Others will debate the controversial issues, national and international, which divide men’s minds.  But serene, calm, aloof, you stand as the Nation’s war guardians, as its lifeguards from the raging tides of international conflict, as its gladiators in the arena of battle.  For a century and a half you have defended, guarded and protected its hallowed traditions of liberty and freedom, of right and justice.

Let civilian voices argue the merits or demerits of our processes of government. Whether our strength is being sapped by deficit financing indulged in too long, by federal paternalism grown too mighty, by power groups grown too arrogant, by politics grown too corrupt, by crime grown too rampant, by morals grown too low, by taxes grown too high, by extremists grown too violent; whether our personal liberties are as firm and complete as they should be.

These great national problems are not for your professional participation or military solution.  Your guidepost stands out like a tenfold beacon in the night: Duty, Honor, Country.

CPT O’Beirne continued, “Because the accused would not fight where he was told, someone else had to go in his place.”  He contrasted MAJ Dobson’s willingness to deploy without question with LTC Lakin’s actions.  And he argued to the members, “Because the accused would not do his duty, 1-32 suffered.”  CPT O’Beirne also observed that in LTC Lakin’s hour-long unsworn statement, he never mentioned the Dobsons.

CPT O’Beirne said of LTC Lakin:  “He’s supposed to be a doctor helping soldiers, not trying to get the President’s birth certificate.”  He continued, “He has shown no real remorse.  When asked why the panel should not dismiss you, he said, ‘I don’t want it to end this way.’  He said, ‘I was cheated out of a deployment.’  I, I, I, I.  Until it came time for the blame, then it was Aberdeen Proving Ground’s legal office, General Casey for not bringing him in and advising him, and Mr. Jensen.”  CPT O’Beirne then discussed Mr. Jensen at length, reading from the providence inquiry where LTC Lakin said that before he disobeyed LTC Judd’s order to report to COL Roberts’ office, Mr. Jensen and MAJ Kemkes had both advised him that the order was lawful and he had a duty to obey it and that he made his own decision to disobey it.  CPT O’Beirne gestured toward MAJ Kemkes at the defense table as he said, “The accused was receiving sound legal advice from a field grade Army trial defense counsel.”

CPT O’Beirne then discussed the offenses’ notoriety, observing that LTC Lakin “went to great lengths so everyone would know what he’s doing.”  He referred to safeguardourconstitution.com, noting that LTC Lakin’s video had been viewed more than 200,000 times.  CPT O’Beirne urged the panel to send a message that this behavior wouldn’t be tolerated.  He asked the members what “headline” they wanted to write — disobedient LTC receives no punishment and retires with lifetime benefits or that he was dismissed from the service and sent to jail.

CPT O’Beirne then contrasted LTC Lakin’s unsworn statement with his 3 September interview on the Barry Farber radio show.  On that show, when asked if he would do it again, he replied:  “without a doubt.”

CPT O’Beirne than offered the government’s sentence suggestion:  “He should serve 24 months in jail — two days for every day his unit spent in Afghanistan on the Pakistan border without him.”  CPT O’Beirne proposed “no less than 24 months of confinement and dismissal from the service.”

Today’s proceedings began with an Article 39(a) session, during which the prosecution offered a transcript of portions of the providence inquiry for its case in rebuttal.  The excerpts concerned LTC Lakin’s statements about the legal advice he received before violating the first order to report to COL Roberts’ office.  The defense made two objections.  First, it asked for additional material to be included pursuant to the rule of completeness.  Second, the defense argued that what LTC Lakin said during the providence inquiry wasn’t inconsistent with what he said during his unsworn statement, so it wasn’t rebuttal.  Judge Lind ruled for the defense on the rule of completeness issue but against the defense on the improper rebuttal issue.  She allowed the government to use the excerpts in its case in rebuttal with the additional of some additional material leading up to the questions at issue.

Those excerpts from the providence inquiry where the only thing the government introduced in its case in rebuttal.  The government’s failure to bring in LTC Judd to discuss the origins of the now-familiar “You had your chance” comment suggests that LTC Lakin accurately blamed Mr. Jensen for making the statement — a point that Mr. Puckett would make during his sentencing argument.

The military judge then addressed the defense’s unresolved motion to treat the two violations of orders to report to COL Roberts’ office on 31 March as multiplicious for sentencing purposes.  Judge Lind performed a Quiroz analysis and determined that the offenses weren’t an unreasonable multiplication of charges for findings purposes.  She then analyzed the two charges in accordance with the discussion under R.C.M. 1003(c)(1)(C), which provides:  “Even if each offense requires proof of an element not required to prove the other, they may not be separately punishable if the offenses were committed as the result of a single impulse or intent.”  She concluded that the offenses were multiplicious for sentencing purposes under that test, which reduced the maximum possible confinement from 42 months to three years.

Mr. Puckett then mentioned that he had a scheduled flight to Italy to serve as counsel in another case that had been scheduled by a Navy judge.  That would require that he leave Fort Meade by noon.  He said LTC Lakin consented to his departure and that MAJ Kemkes would serve as post-trial counsel.  Judge Lind then obtained LTC Lakin’s consent to proceeding without Mr. Puckett if the case wasn’t done by noon.  The military judge then advised LTC Lakin of his post-trial rights.

The members were then brought in and were told that the government’s case in rebuttal consisted of an additional exhibit.  The stage was now set for sentencing arguments.

LTC Lakin, convicted on all charges and specifications by a general court-martial, has been sentenced.

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: 

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.

The unsworn statement then moved into a discussion of LTC Lakin’s violation of COL Roberts’ orders to report to his office.  LTC Lakin seemed genuinely remorseful concerning those offenses.  He said that Mr. Jensen advised him that refusing to meet with COL Roberts would be consistent with failing to deploy until he received confirmation of the President’s eligibility.

LTC Lakin stated that he didn’t say, “You had your chance,” in refusing to meet with COL Roberts. He said he would never say such a thing to COL Roberts.  He believes that it was Paul Jensen who made that statement to LTC Judd.  He said that he ultimately went to see COL Roberts, but in response to questions from Mr. Puckett, he said that he should have gone the first time he was ordered to and he should have gone the second time he was ordered to.

The questions-and-answers then addressed the advice that LTC Lakin had received from his military defense counsel, MAJ Kemkes.  He originally spoke to MAJ Kemkes before submitting his Article 138 complaint to General Casey.  He said that MAJ Kemkes advised him to see COL Roberts as ordered and not to violate his order to deploy.  He said that when he, MAJ Kemkes, and Paul Jensen spoke together, Mr. Jensen would “give a disclaimer saying, ‘I can’t advise you to violate the law.’”  But in private conversations that didn’t include MAJ Kemkes, Mr. Jensen would say that violating his orders “would be consistent with what I was doing.”

Mr. Puckett asked, “When you failed to go to BWI, did you know you were crossing a line.”  By this point, Mr. Puckett was practically shouting at his client, asking the questions in a harsh tone in an apparent attempt to elicit an emotional response from the normally stoic LTC Lakin.  LTC Lakin agreed he was crossing a line.  Mr. Puckett asked, “Did you know there would be consequences?”  LTC Lakin agreed that he did.

Mr. Puckett then observed that LTC Lakin had been selected for promotion to colonel.  He gave that up, LTC Lakin said, because “I had to weigh what the risks were for our Constitution.”  He referred to the Founding Fathers and said, “Risking my career and confinement is a small order compared to them.”

Mr. Puckett asked, “What would have happened if you’d been invited to General Casey’s office and the process was explained to you, that as long as the President is in office, he carries its full weight and authority?”  LTC Lakin replied, “I would have valued that input.  I was begging for that input.”  But “no one did that.”  Mr. Puckett asked, “You came to your own conclusion” that he had to take “this final, last-ditch effort.”  LTC Lakin says he “found confirmation I was upholding Army values by challenging this in garrison.” He said doing so in garrison was “less disruptive than questioning from the battlefield.”

In response to further probing by Mr. Puckett, LTC Lakin agreed that “Army commanders have their own authority” and that “COL Roberts’ authority exists completely independently of the Commander-in-Chief.”  He said he understands that the Army as an institution is going to be unable to answer his questions.  He said he was not a conscientious objector and “I would deploy tomorrow.”  Mr. Puckett–in a tone that sounded more like a prosecutor cross-examining LTC Lakin than his own lawyer–asked, “What’s different now?”  LTC Lakin responded, “I sought everything I could.  I came up short.  It can’t be answered by the Army.”  Mr. Puckett asked, “Would you do this again?”  LTC Lakin answered, “No.”  Referring to the interview that the government had played during its case in chief in which LTC Lakin said he would take the same actions again, Mr. Puckett asked, “What’s changed?”  LTC Lakin said he now had better information.  He agreed that his answer on the Barry Farber Radio Show saying he would do the same thing again was based on inadequate information.

Mr. Puckett then referenced the members panel and asked, “Why should these good people let you keep your job?”  LTC Lakin responded, “I want to serve.  I have skills the Army could use, particularly on the battlefield.”  He talked about his manipulation skills and his ideas about using acupuncture on the battlefield to relieve stress.  He said he doesn’t know of anyone else who has his training combining family medicine, occupational medicine, acupuncture, and being a flight surgeon. 

Mr. Puckett then became harsher still, referring to the “giant image” the members had seen “saying you invited this court-martial.”  He asked, “How do you feel?  Are you proud of that?”  LTC Lakin responded, “No.  It’s crushing.  It’s crushing to my family.”  Still more harshly, Mr. Puckett asked, “That little 3-year-old,” gesturing to the giant family photo still being projected on the wall.  “How would that little 3-year-old feel about visiting you in jail on Christmas Day, if you’re even close enough for your family to see you.”  And with that, the tears came.  LTC Lakin said, “I’ve cried about this so many times.  I’ve cried for a year.  I can’t believe this is happening in this country.”

Mr. Puckett pressed on:  “If these good people send you to jail, those beautiful people will have to live with the image of seeing you through bars or through Plexiglas.”  LTC Lakin answered, “I wish I’d taken another path.  I wish I’d gotten more assistance.  I wish I’d gotten better guidance.”

No doubt realizing that it sounded like his client was trying to blame others for his predicament, Mr. Puckett asked, “It is the Army’s fault?”  LTC Lakin’s answer was so quiet, I couldn’t hear it.  Mr. Puckett practically shouted, “It’s all your fault.”  Again, the answer was inaudible.  Mr. Puckett asked, “If you got orders to go to BWI tomorrow, would you go?”  That answer I would hear:  “Yes.”  Turning confrontational again, Mr. Puckett asked, “But how can you go?  Your questions haven’t been answered.”  LTC Lakin replied, “It’s my duty.”  Mr. Puckett asked if COL Roberts were there, what would LTC Lakin say to him.  LTC Lakin answered, “I’m sorry all this happened.  It’s so difficult for me.  I thought I was choosing the right path and I did not.”

Mr. Puckett asked, “Would you advise a sergeant to follow this path?”  LTC Lakin answered, “Never.  I never did say that to anyone.”  He repeated, “I chose the wrong path.”

Mr. Puckett asked,  ”What are you willing to do to continue to be a flight surgeon in the U.S. Army?”  LTC Lakin answered that he would “deploy any time.”  He also expressed a willingness to serve confinement to remain in the military.

Turning harsh again, Mr. Puckett said, “It’s Judgment Day.  You invited this court-martial, so you invited a sentence.  Are we done disobeying orders, LTC Lakin?”  LTC Lakin replied, “Yes, we are.  Forever.” 

Mr. Puckett then asked LTC Lakin if there was anything else he wanted to say to the members.  He replied:  “I’m extremely sorry for everything that’s become of this.  It’s a unique situation.  This never happened before.  As a military member, I was wrong for pushing this issue.”  Mr. Puckett closed by observing that for the rest of his life, LTC Lakin would have a federal conviction.

And then the defense rested.

By then it was after 1800.  Court recessed for the night, which in essence gives the government all night to compare LTC Lakin’s unsworn statement with his previous YouTube videos and television and radio interviews, looking for quotations to contradict what he said in court.

The trial resumes with an Article 39(a) session at 0830 on Thursday followed by a session with the members at 0900.  It seems likely that the members will begin their sentencing deliberations sometime Thursday morning.

LTC Lakin delivered his unsworn statement in question-and-answer format while sitting on the witness stand.  It would last for more than an hour.  He would ultimately cry, with Neal Puckett repeatedly prodding him in what looked like an effort to get the tears flowing.  During the unsworn, LTC Lakin would also express a willingness and desire to deploy tomorrow.

The unsworn began innocently enough, with LTC Lakin stating he was born in 1965 in Greeley, Colorado, a small town in rural northeast Colorado.  He talked about the school that he attended, going to Colorado College, taking a year off to become an EMT and a 9-1-1 dispatcher, going back to college, and ultimately going to medical school.  He attended medical school on a complete Army scholarship.

He referred to his parents and two brothers who were there, noting that his parents were elderly and had medical issues.  His wife and children remained conspicuous by their absence.

He was commissioned in 1993.  He talked about his internship.  He talked about meeting his wife while they were in medical school and falling in love, though they hardly saw each other when they were interns.

He discussed his practice of family medicine, which he characterized as his “true love.”  He discussed serving as a flight surgeon in Honduras.  He talked about saving two lives with his “quick diagnosis,” which his back-up second guessed. He wanted to leave the Army for civilian practice to be with his wife, but the Army wouldn’t release him, so he went to Germany.  From there he went into Bosnia, where he became a brigade flight surgeon following the relief for misconduct of the previous brigade flight surgeon.  He and one other flight surgeon cared for 1,700 Soldiers on their base.  He then talked about becoming certified in occupational medicine during a one-year program at Bethesda.

He then discussed his wife again.  The defense used an Elmo to display a huge picture of LTC Lakin, his wife, and their three children on the wall across from the members.  That picture would remain up for the remainder of the unsworn statement.  When a photo of LTC Lakin’s wife was first displayed, several of the members turned to the audience and appeared to scan the crowd — looking, I assume, for LTC Lakin’s wife.  He said she was a specialist in internal medicine, but after they had their first child, she gave up practicing to be a stay-at-home mom.  He then spoke lovingly about his 11-year-old daughter, 8-year-old son, and 3-year-old son.

LTC Lakin continued that he became the chief of primary care at the Pentagon’s clinic in July 2009.  Mr. Puckett then observed that the purpose of the hearing was for the members to determine an appropriate sentence.  He then discussed the origins of LTC Lakin’s offenses.

He testified that he started to have concerns about the Constitution during the primary elections, when he was stationed at Aberdeen Proving Grounds. He learned that there was controversy as to the natural-born-citizen status of both major political parties’ general election candidates.  He said Senator McCain provided everything he could to address his status, including a birth certificate with the doctor’s name and hospital’s name.  He compared that with the lack of scrutiny that Senator Obama received.  He had questions about the image of a certificate of live birth on the Internet and relatives stating they were present at his birth in Kenya.  He said he had an open mind, but he was skeptical.  One candidate went through scrutiny, but there was a lack of information as to the other.

Mr. Puckett pressed, “Why were you so interested in this?”  I think he expected the answer to be because of the oath of office, but LTC Lakin instead gave an answer about reading newspapers.  LTC Lakin testified that after the election, he became “extremely concerned.”  He said the issue wasn’t about politics or anything else (probably an implicit denial of racism) but the Supreme Law of the Land.  He stated that he “wanted a valid Commander-in-Chief.”  He testified that after the election, he was no longer comfortable with being selected for deployment.  He was “concerned that the Constitution wasn’t being followed.”  He believes his “oath as an officer is to protect and defend the Constitution.”  He believed questions about the President’s eligibility “may weaken the Constitution.”  He said he doesn’t know if the President is ineligible and he doesn’t believe that anyone can know. 

Neal Puckett asked, “What did you do as a soldier.”  LTC Lakin said his “sought out advice” from his command and from his friends.  He contacted legal assistance at Aberdeen Proving Grounds, who said they would research the issue and get back to him, but then they would never return his calls.  He talked to his  commander and supervisor who said there was an issue and there were questions, but they did not know what to do to answer them.  He then filed an Article 138 complaint.  He was asking, “Please, someone in my command, tell me there’s not an issue about illegal orders.”  He submitted the Article 138 complaint to his company commander and asked him to forward it.  The reply he received back was that his Article 138 complaint was deficient, so the Army didn’t have to answer it.

LTC Lakin then wrote letters to his two Senators and Congressman.  One Senator didn’t reply.  One said the issue had been raised “and Twittered about and been found not to be an issue.”  His Congressman forwarded his letter to Military Affairs.

He continued to “pursue what else I could do.”  When he was transferred to the Pentagon, he raised the issue with his clinic’s commander.  He “acknowledged concern” but had no guidance as to what to do.  LTC Lakin then submitted another Article 138 complaint, this one routed  through General Casey.  (BTW, it would later come out that he was referred to Paul Rolf Jensen while he was at Aberdeen Providing Ground, so it seems likely that he was working with Mr. Jensen at the time he filed this Article 138 complaint.)  The response he received back was that General Casey wasn’t in his chain of command, so his Article 138 complaint wouldn’t be addressed.

LTC Lakin then became aware he was “on the short-list for deployment.  This greatly concerned me.”  He went to Capitol Hill for face-to-face meetings with one Congressman and high-level staffers.  He was told that the issue was a concern, but the media ridiculed it, so they let it go.

He was advised to go to Afghanistan and then raise the issue while he was on deployment.  He considered this a “worse” option.  He said it would be “extremely wrong to raise this in a combat zone.” 

Mr. Puckett asked, “You thought if the Commander-in-Chief wasn’t eligible, you thought your deployment order might retroactively be considered an illegal order.”  LTC Lakin agreed.

Mr. Puckett asked when LTC Lakin first sought the advice of an attorney.  He answered that it was  two-and-a-half  years ago.  He was the leader of an intermediate level school small group.  There were JAGs in the group.  He discussed his concerns with the JAGs and asked what he should do.  One of the JAGs referred him to Paul Jensen and LTC Lakin called him.  He said he “ultimately hired” Mr. Jensen. 

He then testified about receiving his deployment orders.  At the bottom of the orders, it said he had to bring a copy of his birth certificate.  He said, “I thought, there’s an issue here.”  That was followed first by laughter from the birthers in the audience, and then by applause, bring another sharp, “Members of the gallery!” from Judge Lind.

He said that in March 2010, he turned to Mr. Jensen for legal advice.  When asked about Mr. Jensen’s advice, LTC Lakin replied, “There’s a Kenyan birth certificate.”  He said that on Mr. Jensen’s advice, he decided not to deploy.  Mr. Puckett then asked, “Who made the decision to say to your command, ‘I’ll deploy if the President shows he’s eligible?’”  LTC Lakin said he did.  Mr. Puckett asked, “Whose fault was it?”  LTC Lakin replied, “Mine.”  Mr. Puckett asked, “Whose responsibility was it?”  LTC Lakin answered, “Mine.”  Mr. Puckett elicited LTC Lakin’s response that he didn’t think his orders were illegal, but he “still thought there was a constitutional issue.”

He agreed with Mr. Puckett that he used his deployment orders as a vehicle to increase the level of attention that the issue would receive.  He confirmed that there were “lots of people urging you to stick to your guns.”  In a reply likely to hurt him with the members, he answered:  “Yes, including enlisted members and officer members.”

The defense’s case in extenuation and mitigation began with the testimony of COL Willoughbee, who provided very helpful testimony for the defense that was then turned against LTC Lakin during cross-examination.

He deployed to Afghanistan with LTC Lakin, who was a major at the time.  COL Willoughbee was first the squadron’s XO, then became the CO when the previous CO died.  He testified that LTC Lakin was the squadron’s lead flight surgeon.  He rated LTC Lakin’s duty performance as “exceptional” and testified about LTC Lakin’s accomplishments in Afghanistan.  On cross-examination, the trial counsel elicited testimony that LTC Lakin had joined the squadron several months before it deployed, which contributed to his effectiveness.  LTC Lakin was with the unit in time for its predeployment training.  COL Willoughbee agreed that that training was important.  He also agreed that LTC Lakin performed his duties well because he did what he was told to do.  COL Willoughbee agreed that his opinion of LTC Lakin would have changed if he had said, “No, I’m not oing to do what I’m ordered to do.”  He testified, “It’s critical for leaders of all levels to obey orders unless they are unlawful.”  His “unless they are unlawful” comment–which, of course, is a perfectly accurate statement of the law–was followed by quiet applause from the birthers in the audience.

The second and final witness of the defense’s case was Timothy Mayhack of North Pole, Alaska.  He was a CW3 helicopter pilot during the same deployment that LTC Lakin and COL Willoughbee had be on.  He was a colleague and friend of LTC Lakin.  He seemed like an odd duck during his direct.  His cross would reveal that he is a birther.

He talked about his background in the Navy, working for Harley-Davidson, going to nursing school, working as a civilian med-evac pilot, and finally returning to active duty in the Army as a CW3.  He and LTC Lakin, who were both from northeast Colorado, became good friends during their deployment.  He said LTC Lakin was one of the top flight surgeons he had dealt with.  LTC Lakin was an osteopath and he took a manipulation table to Afghanistan for the deployment.  He would give manipulations and massages to the pilots to ease their stress.  He testified that that made it easier to fly missions.  He worked tirelessly treating both Soldiers and Afghanis.  He talked about LTC Lakin doing everything he could to save a Special Forces Soldier who ultimately died.  On cr0ss-examination, the trial counsel asked, “If he’d blown off his commander, he wouldn’t have performed his duties well.”  Mr. Mayhack responded, “He wouldn’t do that without a good reason,” which elicited an appreciative response from the birthers in the audience.  The trial counsel asked, “Soldiers can’t go around disagreeing with regulations and say, ‘we’re not going to follow that.’”  Mr. Mayhack defended Soldiers doing just that.  The trial counsel asked, “It would have been okay if safety and sanitation regs were broken?”  Mr. Mayhack responded, “Not always.”  The trial counsel then asked about Mr. Mayhack’s feelings about LTC Lakin’s convictions.  The defense objected.  The trial counsel responded that the question went to bias.  The military judge allowed it. The trial counsel asked Mr. Mayhack how he felt about the accused’s offenses.  Mr. Mayhack, whose answers on cross to that point had seemed couched to help LTC Lakin, then decided to fight with the prosecutor.  He replied that since the court had convicted LTC Lakin, he didn’t see where his thoughts had any bearing.  The trial counsel pressed:  “Over the phone, you said you thought his crimes were an act of patriotism.”  Mr. Mayhack conceded that “I may have said that.”  The trial counsel continued, “You think the President’s eligibility to be President is an open question.”  When Mr. Mayhack responded, “Yes, I do,” the birthers in the audience broke into applause.  Judge Lind snapped sharply, “Members of the gallery!”  That restored quiet.  The trial counsel then asked, “Do you believe the President has a duty to prove he’s President before officers have a duty to obey orders?”  Mr. Mayhack responded, “I think those officers on active duty should be compelled to question.”  At one point during the cross, Mr. Mayhack provided an answer.  The trial counsel then asked him whether that answer was inconsistent with what Mr. Mayhack had said over the telephone to the trial counsel, while a couple of other attorneys listened on speakerphone.  Mr. Mayhack conceded that he had previously made the statement as the trial counsel had phrased it.  On redirect, Mr. Mayhack testified he believed there was an unwritten rule that all orders in the military originate from the Commander in Chief.  He testified, “I don’t know if the Commander in Chief is eligible or not.  No one in this room does.” 

After Mr. Mayhack concluded his strange testimony, the defense presented LTC Lakin’s unsworn statement, which would last more than an hour.  The defense then rested.

MAJ Dobson was the government’s second sentencing witness.  While the government elicited testimony from him about how he and his unit were harmed by LTC Lakin’s failure to deploy, his testimony didn’t seem at all whiney or self-pitying.  Rather, he came across as a professional military officer willing to do his duty.  His testimony would  prove quite aggravating.

He testified that he recently returned from a six-month deployment with the 1-32 Cavalry Squadron.  He received a call on 6 April saying he might have to deploy on short notice.  He was then put on hold for a week, told that the doctor who was originally scheduled to deploy might do so after all.  He was then told he was definitely going and left two weeks later.

MAJ Dobson’s wife had returned six months before from a deployment in Afghanistan.  The Army tried to give them some time together and he hadn’t expected to deploy until the end of the year.  He had been scheduled to attend the captains’ career course, which he had to cancel. 

When he arrived at Fort Campbell on 26 April, most of his squadron had already gone to Afghanistan.  He wasn’t able to attend the predeployment course required for deploying doctors.

When he arrived in Afghanistan, his unit was on the Pakistani border in Kunar Province, just north of Jalalabad.  The previous unit had left a physician’s assistant behind to fill the gap when the 1-32 arrived without a doctor.  MAJ Dobson testified, “She was very happy to see me.”

Then came the most powerful testimony of the court-martial.  On MAJ Dobson’s second day in country, his unit “had mass casualties” — a total of 16.  He testified that he felt he didn’t treat them as well as he could have had he had more time to prepare for his deployment. 

He named the lieutenant colonel who replaced him after six months — the lieutenant colonel who is now in Afghanistan filling the second half of what would have been LTC Lakin’s deployment.

On cross-examination, Mr. Puckett established that MAJ Dobson considered his deployment to be professionally rewarding.  He testified that it was “a good experience for me,” but distinguished that from its effect on his family.

Speaking of MAJ Dobson’s family, the next government witness was his wife.  She testified that she returned from deployment in November 2009.  She testified that “we were hoping to expand our family,” a plan that was shelved when her husband received short-notice deployment orders.  The two were both signed up to attend the captain’s career course in May 2009 together.  Her husband couldn’t go because he had to deploy.  She decided not to go either, because her husband’s short-notice deployment was already difficult on their two-year-old son.  She didn’t want to exacerbate that impact by leaving for the career course.  She also testified that she was awarded a bronze star at a ceremony she scheduled for May so both her and her husband’s family could attend.  Her husband had to miss that ceremony due to his unexpected deployment. The defense didn’t cross-examine her.

The government then introduced several exhibits.  One was a printout of safeguardourconstitution.com’s “news section,” demonstrating once again that LTC Lakin’s ostensible supporters were actually assisting the government in building its case against him.  Other exhibits were the YouTube video and an audio CD containing an interview that LTC Lakin did with the Barry Farber radio show, which aired in early September.  The government closed its sentencing case by playing a clip from that interview.  While I couldn’t hear the audio well from my seat, I understand that in the clip, LTC Lakin was asked, “If you had to do it over again, would you?” and responded that he would.

Immediately after findings, without taking a break, the case moved into the government’s sentencing case.

The government began its sentencing case by projecting a giant version of LTC Lakin’s famous “I will disobey all orders” YouTube video on the wall across from the members.  Seven of the eight members watched in rapt attention, while the eighth wasn’t engaged.  (My guess is that he’d seen it before.)  LTC Lakin also looked upwards at the giant image of himself, but unfortunately I couldn’t see his face from where I was sitting.  Surprisingly, none of the members looked at LTC Lakin during the video.  If I were a member, I would have been interested in LTC Lakin’s reaction to watching the video.

When the video ended, birthers in the room (probably 20 to two dozen) broke into sustained applause.  I was surprised that Judge Lind neither gaveled them or admonished them.  This wasn’t the last of the birther outbursts of the day.  Judge Lind would come to direct a few harsh words at the gallery later in the day, but never read a riot act or threatened to have someone excluded from the proceedings.  But as the day wore on, more bailiffs appeared in the courtroom and on two occasions, I saw them quiet demonstrative birthers in the audience.

The government then presented three live sentencing witnesses.  The first was COL Roberts.  The prosecution began by asking him whether, until a few weeks ago, he was the only Medal of Honor recipient on active duty.  He indicated he was.  The trial counsel then had him talk about his professional background.  He repeated the testimony that when he asked LTC Judd whether LTC Lakin was going to report to him as ordered, LTC Judd told him the response was, “You had your chance.”  (During his unsworn statement, LTC Lakin would later say that it was Paul Jensen and not he who uttered that phrase to LTC Judd.)  COL Roberts discussed preparing a counseling statement and said LTC Jensen did not report as ordered either at 1345 or at 1700, as required by a written order he issued after the missed 1345 appointment.  He testified that he had LTC Lakin escorted to his office the following day and spoke to him, emphasizing that his failure to report the previous day was a UCMJ violation.  He explained that officers in the U.S. Army are required to obey orders.  He told LTC Lakin that officers in the Army have a duty to carry out their orders or to resign or request early retirement.  COL Roberts also said he was concerned that LTC Lakin was using his deployment orders as a means of attracting attention — something that LTC Lakin would later verify in his unsworn statement.  At the time of the meeting, COL Roberts was aware that LTC Lakin had posted a YouTube video, but he had not yet seen it.  COL Roberts said that at the meeting, he encouraged LTC Lakin to obey his orders.

COL Roberts testified that a senior leader questioning the Commander in Chief is unacceptable and constitutes a real threat to good order and discipline.  He testified, “Tomorrow, I’ll go back to Kuwait,” where he is now stationed.  He said it’s difficult for him to leave his family.  That difficulty, he posited, would be even greater for a young Soldier.  “If there is a means for getting out of deploying, some mode of not going,” some Soldiers would latch onto it, which is “intolerable.”  He also testified that there is “nothing more fundamental to civil-military relations than that officers follow orders.”

During cross-examination, Mr. Puckett obtained COL Roberts’ agreement that it’s important for Soldiers to use their chain of command when they have problems.  He also elicited COL Roberts’ agreement that LTC Lakin is an unusually well-qualified Army doctor and that a doctor with his credentials is a valuable asset.  COL Roberts testified that LTC Lakin’s duty performance was “exemplary.”  Mr. Puckett asked if, aside from “this deviation,” a doctor with LTC Lakin’s qualifications “would be an asset to any unit.”  COL Roberts replied, “Yes, aside form what he’s done here.”  On redirect, COL Roberts testified, “If I were a commander, before this, I would take him over just about anyone, after . . . .”  Judge Lind cut him off at that point. 

But as effective as this testimony was, MAJ Dobson’s would be even more powerful.