[I'm still on the road and because of the way my e-mail is forwarded, I can't tell who sent the amendments to me.  But whoever you are, thanks!]

I hear very good things about LTC Lakin’s detailed defense counsel, MAJ Kemkes.  While obviously I have no way of knowing for sure, we can very safely assume that he advised LTC Lakin that there is no way his request for discovery would be successful and that he should explore available avenues to protect himself from the consequences of his deliberate decision to disobey orders on a basis that the law will not recognize as a defense.

Given that we can be almost certain that MAJ Kemkes gave LTC Lakin that advice (the same advice that all of those of us who are judge advocates would no doubt have given LTC Lakin), what advice did Mr. Jensen give?  Mr. Jensen obviously recommended a course of action different than that proposed by MAJ Kemkes.  To what extent, if at all, will today’s events lead LTC Lakin to lose confidence in Mr. Jensen’s advice?

That depends on what Mr. Jensen’s advice was. It seems to me that there are three principal possibilities:

(1)  Mr. Jensen reasonably told LTC Lakin that there is virtually no prospect that the military judge would order discovery and an almost certainty that the military judge will find that the orders given to LTC Lakin were lawful and so instruct the members.  Mr. Jensen might have further advised LTC Lakin that the consequence of moving forward is likely a dismissal from the Army and the loss of any pension, with a real possibility of jail time as well.  He might have futher advised him that while only LTC Lakin can choose whether to face those consequences, if they are imposed, then that opens the avenues for appeals and collateral challenges to the likely denial of discovery.  If that’s the advice Mr. Jensen gave, then today’s events probably won’t cause LTC Lakin to lose any confidence in Mr. Jensen.  Now the only question is whether, as he draws closer to the noose, LTC Jensen might lose his resolve and attempt to cut a deal.

(2)  Mr. Jensen gave guano crazy advice to LTC Lakin that either the Army would back down out of fear of being compelled to produce the requested discovery or the military judge would likely order the requested discovery.  If that was the advice given, then presumably LTC Lakin lost a great deal of confidence in Mr. Jensen today and may now see MAJ Kemkes’ legal advice as being superior to that of Mr. Jensen.

(3)  Mr. Jensen said something along the lines that the question of whether the discovery will be ordered is an open question upon which reasonable minds might disagree.  Some military judges might order the discovery while some might not.  The appellate courts will have to ultimately resolve the issue.  If he’s unlucky enough to draw one of those military judges who believes that he’s not entitled to the discovery, then LTC Lakin will probably face appellate leave and/or confinement while that issue is hashed out on appeal.  While I believe that such advice would be almost as guano crazy as #2 above, today’s ruling wouldn’t necessarily lead LTC Lakin to see that such advice was incorrect.  On the other hand, obviously LTC Lakin is an intelligent man and Phil Cave’s eyewitness assessment of today’s ruling is that Judge Lind demolished Mr. Jensen’s legal arguments.  Might that lead LTC Lakin to conclude that MAJ Kemkes’ legal advice was more sound than that of Mr. Jensen?  Probably not.  I’m not trying to be flippant when I say that if LTC Lakin yielded to an objectively reasonable assessment of the situation, he wouldn’t have embarked on the particular path toward Leavenworth, Kansas on which he’s currently hiking.  LTC Lakin is acting under the dictionary definition of a delusion:  “an erroneous belief that is held in the face of evidence to the contrary.”  It seems doubtful that listening to Judge Lind’s ruling today would cause LTC Lakin to slap his forehead like in those old V-8 commercials and exclaim, “NOW I understand why the requested documents have no legal relevance to the charges against me.”

So, interestingly, probably the only real prospect for LTC Lakin now taking actions that are in his objective best interest (trying to cut a deal to limit the negative consequences of his previous actions) is if Mr. Jensen provided him with guano crazy assurances of success.  If Mr. Jensen provided any other advice, it seems likely that LTC Lakin will continue his hike on the Leavenworth trail.

A military judge in Maryland has refused to order the release of school records that could include a copy of President Barack Obama’s birth certificate. . . .

The judge ruled Thursday that those records and any other evidence or witnesses pertaining to Obama’s birth are not relevant to the case and will not be admitted. Prosecutors have argued that Obama’s birth certificate shouldn’t be part of the case, especially since the order for Lakin to deploy to Afghanistan didn’t come directly from the president.

More later if/when it surfaces.

But the petition intake during the second half of CAAF’s just-completed term exceeded that of the first half.  According to the court’s official end o’ term stats, here (scroll down just a tiny bit), CAAF received 721 petitions for grant of review during the term.  That’s more than the FY 2003 term’s total of 694 petitions.  The September 2008 term’s total was 843.

The number of cases that CAAF carried over on its master docket (30) is identical to the number it carried over from the previous term.  That’s the latest indication that the number of cases CAAF decides during its brand new term will likely be similar to the number it decided during its just-completed term.

This article argues for an amendment to R.C.M. 912(d) guaranteeing a right to counsel-conducted voir dire.  MAJ Ann B. Ching, Who Questions the Questioners?  Reforming the Voir Dire Process in Courts-Martial, 204 Mil. L. Rev. 182 (2010).    

Here’s a link to an article arguing that the MCM should be amended to provide a party seeking a military judge’s disqualification with the right to have a denial of such a motion reconsidered by a different military judge.  MAJ Steve D. Berlin, Clearing the High Hurdle of Judicial Recusal:  Reforming RCM 902(a), 204 Mil. L. Rev. 223 (2010).

Here’s a link to a wonderful article about the importance of reading for military lawyers, including many recommendations of books we should read.  LTC Jeff Bovarnick, Read Any Good (Professional) Books Lately?:  A Suggested Professional Reading Program for Judge Advocates, 204 Mil. L. Rev. 260 (2010).

Here’s a link to the Clausen Lecture on handling high-profile cases.  Thomas W. Taylor, The Fifteenth Hugh J. Clausen Lecture in Leadership:  Leadership in High Profile Cases, 204 Mil. L. Rev.  343 (2010).

h/t Phil Cave’s Court-Martial Trial Practice blog.

Thanks to Anon, again, here is a link to the Panel’s “homepage.”  Ifit asks you for search criteria, enter 73653 in the Committee Number field.   To see the documents the committee is reviewing, click on Meeting and then the link for documents. 

From my review of the Marine Corps’ presentation (slides 48-51 in particular), and Navy JAG, it would appear that the Marine Corps is making a big push for equality in this process.  In particular they are looking for parity of consideration of Marine Corps JAs for all AJAG slots and for consideration of Marine Corps JAs as the DoN JAG (as they phrase it). 

Considering this push, the now unavailable 1995/6 memo on the ability of Marine Corps JAs to be considered for Navy JAG was quite topical.   If anyone associated with the panel is reading, four documents that are no longer available on fido.gov appeared, on a quick scan, to be very interesting and relevant to this push by the Marine Corps.  I would personally appreciate if they could again be made available to the public.  The documents are (numbers correspond to the Aug. 30, 2010 index):

10. Commandant of the Marine Corps Memorandum for the Secretary of the Navy dtd 25 Apr 1994, Marine Nominees for Appointments to be the Judge Advocate General and the Deputy Judge Advocate General

11. Navy Judge Advocate General Memorandum for the General Counsel of the Navy dtd 22 May 1995, Marine Nominees for Appointment to be the Judge Advocate General and Deputy Judge Advocate General of the Navy

12. Navy Judge Advocate General Memorandum for the Principal Deputy General Counsel of the Navy dtd 4 Mar 1996, Proposed Legislation to Modify Statutes to Select the Judge Advocate General of the Navy and the Staff Judge Advocate to the Commandant of the Marine Corps

13. General Counsel of the Navy Memorandum for Secretary of the Navy, Under Secretary of the Navy dtd 9 May 1996, Marine Corps Nominees for Appointment as the Judge Advocate General and Deputy Judge Advocate General of the Navy

Gracias.

If [Pres. Obama] is ineligible under the Constitution to serve in that office that creates a break in the chain of command of such magnitude that its significance can scarcely be imagined.
 
As a practical example from my background I recall commanding forces
that were equipped with nuclear weapons. In my command capacity I was responsible that personnel with access to these weapons had an unwavering and absolute confidence in the unified chain of command, because such confidence was absolutely essential–vital– in the event the use of those weapons was authorized. I cannot overstate how imperative it is to train such personnel to have confidence in the unified chain of command.

I couldn’t agree more. As to relevance . . .

Judge Ham’s dissent is well written, but rather strongly worded compared to your run-of-the-mill CCA dissent–so strong that ACCA Chief Judge Tozzi joins the dissent but writes separately to note disagreement with some of the stronger language by Judge Ham.  Here is possibly the best portion of the dissent, and the portion with which Chief Judge Tozzi did not agree:

The case is now before us and I believe we should decide it.  Applying the law as set forth in the UCMJ and the Rules for Courts-Martial, I would affirm only so much of the sentence as provides for confinement for six months, forfeiture of $884 per month for six months, and reduction to E-1. I cannot agree that applying the law Congress promulgated and the President implemented is an “extreme remedy.” Congress determined the appropriate remedy for an incomplete record and we are bound by it. Whether we agree with the result is not the question; it is the appropriate result under the law.

The majority has instead decided to launch an appellate “rescue mission” to allow the government yet another opportunity to carry its burden and complete the record in this case. See United States v. Burris, 21 M.J. 140, 145 (C.M.A. 1985). Dubay hearings are not meant as a vehicle to administer appellate “CPR” to the government’s case. Nor should this court, in ordering a Dubay hearing, be in the business of instructing the government how it should best attempt to carry its burden. See United States v. Gaskins, ARMY 20080132 (Army Ct. Crim. App. 27 Aug. 2010) (order) (unpub.) (Appendix). Specifically, this court should not direct the government to search for specific documents in order to reconstruct the missing exhibit. Additionally, this court should not choose the questions it directs the Dubay judge to answer with an eye toward finding the facts it needs to affirm the sentence in the case, rather than simply finding the facts the majority asserts are necessary to decide the legal issue presented.

I wonder if the majority judges want their hail and farewell (or whatever the Army calls it) gifts back?

Update:  There are also some interesting historical materials in Section E. of the outline, such as this memo on the policy and legal considerations of appointing a Marine Corps judge advocate as the Navy JAG.

Update 2:  Somehow or someone the links are all becomming inaccessible.  I am slowly collecting all the documents and publishing them on a separate page.

This week at the Supremes:  There are no expected military justice developments at the Supremes on my radar screen for this week.

This week at CAAF:  CAAF’s new term starts on Wednesday.  Happy New Term!

This week at the CCAs:  NMCCA will be hearing three oral arguments this week and ACCA will be hearing one. 

[UPDATE:  Courtesy of Phil "My Liege" Cave, here are the issues being argued Monday at NMCCA in United States v. Collins:

I. WHETHER THE JUDGE ERRED IN ALLOWING EVIDENCE OF UNCHARGED CONDUCT UNDER MIL. R. EVID. 413 WHERE THERE WAS INSUFFICIENT STRENGTH OF PROOF THAT THE UNCHARGED CONDUCT HAD ACTUALLY OCCURRED AS WELL AS INSUFFICIENT EVIDENCE THAT THE UNCHARGED CONDUCT QUALIFIED AS SEXUAL CONTACT.

II. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT WHERE HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND CALL WINTESSES WHO WERE EITHER PRESENT AT THE TIME THE ALLEGED UNCHARGED CONDUCT OCCURRED OR WHO HAD PERSONAL KNOWLEDGE OF THE COMPLAINING WITNESS’ HISTORY OF FALSE REPORTING OF ALLEGED SEXUAL ASSAULTS.

III. WHETHER THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR AGGRAVATED SEXUAL ASSAULT, WHERE THE EVIDENCE ADDUCED AT TRIAL DOES NOT SUPPORT A FINDING THAT THE ALLEGED VICTIM WAS SUBSTANTIALLY INCAPACITATED.]

ACCA is hearing oral argument on Wednesday in United States v. Fernandex-Brito, No. ARMY 20080982, on these issues:

I. WHETHER THE MILITARY JUDGE ERRED BY DENYING THE DEFENSE REQUEST FOR AN R.C.M. 706 SANITY BOARD.

II.  WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S GUILTY PLEA WHERE EVIDENCE WAS INTRODUCED DURING THE PROVIDENCE INQUIRY AND PRESENTENCING HEARING THAT APPELLANT WAS NOT MENTALLY RESPONSIBLE DURING THE COMMISSION OF THE OFFENSE AND BY NOT EXPLAINING THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY TO APPELLANT NOR ELICITING FACTS TO NEGATE THE DEFENSE.

[Update:  Courtesy of Phil "My Liege" Cave, here's the issue being argued at NMCCA in United States v. Curry on Wednesday:  "WHETHER THE EVIDENCE WAS FACTUALLY AND LEGALLY SUFFICIENT TO SUSTAIN A FINDING OF GUILT TO THE CHARGE OF LARCENY AS THE GOVERNMENT DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT KNEW THAT HE WAS NOT ENTITLED TO BAH WHEN HE SUBMITTED HIS VALID MARRIAGE LICENSE TO PSD."  And here are the assignments of error in United States v. Vasquez being argued on Thursday at NMCCA:

I. APPELLANT’S CONVICTION IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE THE GOVERNMENT DID NOT INTRODUCE SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS NOT ENTRAPPED INTO THE OFFENSE OF ATTEMPTED POSSESSION WITH THE INTENT TO DISTRIBUTE.

II. THE MILITARY JUDGE ERRED BY DENYING APPELLANT’S MOTION TO DISMISS FOR A VIOLATION OF ARTICLE 10, UCMJ.

III. APPELLANT’S SENTENCE IS INAPPROPRIATELY SEVERE BECAUSE GOVERNMENT CONDUCT ENTICED APPELLANT INTO COMMITTING AN OFFENSE QUALITATIVELY MORE SEVERE THAN HE ORIGINALLY INTENDED. IN ADDITION, HE HAS NOW BEEN SENTENCED BY TWO SOVEREIGNS FOR THE SAME CRIME.]

This week in the Marine Corps judge advocate community:  The Marine Corps’ WESTPAC Regional Defense Counsel, Maj Chris Thielemann, will be promoted to lieutenant colonel this week.  Congratulations to soon-to-be LtCol Thielemann!

Here’s a link to an article by CPT Robert E. Murdough called, “I Won’t Participate in an Illegal War”:  Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders.  The article doesn’t appear to mention LTC Lakin, but I’ll be reading it with his case partially in mind.

And here’s a link to an article by MAJ David Edward Coombs that has me gnashing my teeth.  It’s called,  United States v. Blazier:  So Exactly Who Needs an Invitation to the Dance?  Apparently just a surrogate expert, according to MAJ Coombs.

And here’s a link to an article by MAJ Patrick D. Pflaum (who I believe did it in the Conservatory with a lead pipe) about what he rightly calls CAAF’s “landmark” Jones decision, which I think was the most important decision of this term.

1) Mr. Daniel J. Dell’Orto, Chairman (former DoD General Counsel);

2) Ms. Judith A. Miller (former DoD General Counsel);

3) Mr. William Molzahn (former Principal Deputy General Counsel of
the Navy);

4) Lt. Gen. Henry P. Osman, USMC (Ret.) (former Deputy Commandant of
the Marine Corps for Manpower and Reserve Affairs); and

5) RADM James E. McPherson, JAGC, USN (Ret.) (former Judge Advocate General of the Navy).

Now for the hearing notice:

DEPARTMENT OF DEFENSE

Department of the Navy
Meeting of the Independent Panel To Review the Judge Advocate Requirements of the Department of the Navy

AGENCY: Department of the Navy, DoD.

ACTION: Notice of open meeting.

———————————————————————–

Federal Register: August 16, 2010 (Volume 75, Number 157)]

SUMMARY: The Independent Panel to Review the Judge Advocate Requirements of the Department of the Navy (DoN) (hereinafter referred to as the Panel) will hold an open meeting. The Panel will meet in order to hear testimony from senior members of the Judge Advocate General’s Corps (JAGC) and the U.S. Marine Corps (USMC) and to conduct deliberations concerning the judge advocate requirements of the DoN.  These sessions will be open to the public, subject to the availability of space. In keeping with the spirit of FACA, the Panel welcomes written comments concerning its work from the public at any time. Interested citizens are encouraged to attend the sessions.

DATES: The meeting will be held on Wednesday, September 1, 2010, from 8 a.m. to 5 p.m.

ADDRESSES: The meeting will be held at the Residence Inn Arlington Pentagon City, 550 Army Navy Drive, Arlington, VA 22202.

FOR FURTHER INFORMATION CONTACT: Any member of the public wishing further information concerning this meeting or wishing to submit written comments may contact: Mr. Frank A. Putzu, Designated Federal Official, Department of the Navy, Office of the General Counsel, Naval Sea Systems Command, Office of Counsel, 1333 Isaac Hull Avenue, SE, Washington Navy Yard, Building 197, Rom 4W-3153, Washington, DC 20376, via Telephone: 202-781-3097; Fax: 202-781-4628; or e-mail: frank.putzu@navy.mil.

SUPPLEMENTARY INFORMATION: Pursuant to the provisions of section 506 of Public Law 111-84, the Federal Advisory Committee Act (FACA) of 1972, (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.50, this is a public meeting and interested citizens are encouraged to attend the sessions.

Interested persons may submit a written statement for consideration by the Panel at any time prior to August 23, 2010.

D. J. Werner,
Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy,
Federal Register Liaison Officer.
[FR Doc. 2010-20153 Filed 8-13-10; 8:45 am]
BILLING CODE 3810-FF-P

There were 10 3-2 opinions.  Here’s the most striking thing about them:  Judge Stucky voted for the government in all 10 cases.  Here’s the next most striking statistic:  Judge Erdmann voted for the government in only 1 of the 10:  Lloyd, in which he was the senior judge in the majority and assigned the opinion to himself.  Judge Baker was the second most likely to support the government in 3-2 opinions, with 7.  Judge Ryan was next with 6.  Chief Judge Effron was fourth with 4.

The most likely line-up in the majority was a tie.  Each of the following combinations produced 3 of the 10 3-2 majorities:  Chief Judge Effron, Judge Baker, and Judge Stucky (Neal, Clayton, Ferguson); and Judge Baker, Judge Stucky, and Judge Ryan (Cowgill, Smith, Ayala).  No other 3-2 line-up occurred more than once.

And here’s the breakdown of how often each judge was on the winning side of a 3-2 split: 

1.  Judge Stucky:  8

2.  Judge Baker:  7

3.  Chief Judge Effron:  6

      Judge Ryan:  6

5.  Judge Erdmann:  3

1.  Judge Stucky:  31

2.  Judge Baker:  27

     Judge Ryan:  27

4.  Chief Judge Effron:  24

5.  Judge Erdmann:  22

The mean was 26.2.  (Obviously both the median and the mode were 27.)

The issue was raised at a motions hearing.  Trial is currently scheduled to start on 13 September.

[Disclosure:  I was one of SSgt Wuterich's appellate counsel on two Article 62 appeals.]

The event will be held entirely off-post.

Here’s a link to the event’s website.