God bless and protect Ltc. Lakin and his legal team.
Posted on 05/13/2010 2:50:49 PM PDT by STARWISE
Court-Martial Military Defense Under UCMJ
LTC LAKIN
(A work in progress)
Note, there are some areas of Article 32, UCMJ, practice where I am rooting for LTC Lakin.
a. Production of evidence in accordance with R.C.M. 405(f)(10). Recently I had an interesting experience of both the IO and GR cheerfully IMHO admitting that they’d done nothing in response to my request for information from NCIS basing that on the fact it couldn’t be done. Although they cheerfully IMHO admitted that they’d not asked. The NCIS agent testified it would have taken a “couple of days” to provide the information. And the request was made weeks before the hearing.
b. The use of depositions, and how R.C.M. 703, improperly restricts Article 49, UCMJ.
LTC Lakin is now pending an Article 32, UCMJ, hearing. I thought it might be interesting to follow this case from a cynical defense counsel perspective addressing the various rights and procedures applicable to this case.
I hope to update this page regularly as events or news happens and as time permits. I hope that in the process it will serve as a useful guide to military defense counsel who have an Article 32, UCMJ, case, regardless of the client or the charges. Send me an email if you have something to contribute or think there is a point I need to add.
In principal the Article 32 is intended to serve two broad purposes: a discovery proceeding for the accused and a bulwark against baseless charges.
See e.g. Diaz v. United States, 54 M.J. 880, 883 n.2 (N-M Ct. Crim. App. 2000) citing to United States v. Samuels, 10 C.M.A. 206, 212, 27 C.M.R. 280, 286 (1959)
(It is apparent that the Article [32 investigation] serves a twofold purpose. It operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges.)
See also United States v. Roberts, 10 M.J. 308, 311 (C.M.A. 1981) (There is no doubt that a military accused has important pretrial discovery rights at an Article 32 investigation);
United States v. Payne, 3 M.J. 354, 357 n.14 (C.M.A. 1977) (One of Congress’ intentions in creating the Article 32 investigation was to establish a method of discovery);
United States v. Tomaszewski, 8 U.S.C.M.A. 266, 24 C.M.R. 76 (1957) (The Article 32 investigation “operates as a discovery proceeding.”). R.C.M. 405(g)(1) requires production of “reasonably available evidence.“ In reality it is often a mere road-bump on the way to trial, especially in political cases such as sexual assaults, child abuse, drugs.
References.
The various rules and regulations are available on the internet. But I am posting them here in one place.
The charging process.
The Army has begun the initial steps toward a general court-martial. No charges can be referred to trial by general court-martial until there has been an Article 32, UCMJ, pretrial investigation.
Remember, a commissioned officer cannot be tried at summary court-martial (oddly I’ve had two cases in which charges against an officer were referred to SCM, and we so wanted to accept), and a commissioned officer cannot be dismissed at special court-martial.
See Article 20, UCMJ and [cite for dismissal].
There are preferred charges (Article 30, UCMJ) and an Article 32, UCMJ,
investigating officer has apparently been appointed [confirmation?].
I would assume usual practice that a Government Representative has been appointed in accordance with R.C.M. 405(d)(3)(A).
(Note: Lawyers are assigned in trial counsel billets. That’s a personnel assignment and billet structure decision. There is no trial counsel until charges are referred, just as there is no military judge.)
Investigating Officer.
The IO is a commissioned officer. Army practice is to use line officers except in some unusual cases. The Major Hasan Article 32 comes to mind where Military Judge Pohl is the IO.
It’s quite possible that COL Henley, CJ, Army Trial Judiciary, has been asked to make a military judge available. The Navy-Marine Corps and Air Force use lawyers as IO’s. Keep in mind that:
An “Article 32 investigation is a judicial proceeding.” United States v. Bell, 44 M.J. 403, 406 (C.A.A.F. 1996).
Ex-parte communications between an Article 32 investigating officer and a member of the prosecution are improper. United States v. Payne, 3 M.J. 354 (C.M.A 1977); United States v. Argo, 46 M.J. 454 (1997).
Although the Article 32 officer does not preside over an adversarial proceeding leading to an adjudication of guilt or innocence, the requirement for impartiality means that the investigative and advisory functions of the Article 32 officer must be performed, insofar as practicable, by a person possessing the impartiality similar to that required of a MJ.
United States v. Reynolds, 24 M.J. 261, 263 (C.M.A. 1987).
Defense Counsel.
In accordance with R.C.M. 405, a military defense counsel qualified and certified in accordance with Article 27(b)
and Article 42(a),
UCMJ, must be assigned to represent LTC Lakin.
And as we know from the news LTC Lakin has exercised his right to retain civilian counsel at no expense to the government. News reports indicate a senior military lawyer has been appointed as co-counsel to civilian counsel Paul Rolf Jensen.
Here (from WND) is a shot of the preferred charges:
Rules applicable to an Article 32, UCMJ, investigation.
The current Manual for Courts-Martial (M.C.M.) and its Rules for Court-Martial (R.C.M.) and Military Rules of Evidence (Mil. R. Evid.) are proscribed through Executive Order of the president. See Article 36, UCMJ,
which gives the president such power. There’s an obvious “Ah ha, we’ve got you,” for LTC Lakin’s case. However, all of these rules have been prescribed by presidents prior to President Obama, most recently by President Bush for example. Thus the portions of the Manual and its Rules applicable to LTC Lakin at his Article 32, UCMJ, hearing aren’t subject to challenge because they are issued by a President Obama.
R.C.M. 405
has a self contained set of rules of evidence and practice and procedure for the conduct of an Article 32, UCMJ, hearing. The Army has an excellent guide in AR 27-17
that it provides the IO on how best to do an Article 32, UCMJ, investigation. In addition, the Army formally appoints a legal advisor to the IO. The purpose of the LA is to try and avoid conflicts on interest. The GR is not allowed to give legal advice to the IO.
(Personally I’m not convinced this works because the GR and LA are typically assigned to work in the same SJA shop and have the same ultimate supervisor in the SJA. And of course it is the SJA who then advises the convening authority under Article 34, UCMJ, andR.C.M. 406.)
Rules of Evidence.
The Military Rules of Evidence—other than Mil. R. Evid. 301, 302, 303, 305, 412 and Section V—shall not apply in pretrial investigations under this rule. See R.C.M. 405(i).
This means that hearsay, except under some limited situations, is not admissible.
Hearsay is admissible if the defense does not object.
Hearsay is admissible if the defense objects, but the testimony to be admitted is in writing and under oath, and the IO has made a determination that the witness is not “reasonably available” testify in person or by telephone. See R.C.M. 405(g)(2), (4).
The production of witnesses at an Article 32, UCMJ, hearing is regulated by R.C.M. 405 in several ways. Note, there is no subpoena power at an Article 32, UCMJ, hearing.
Civilian witnesses who are not federal employees are “invited” to attend. If the witness is considered relevant and necessary the government can be required to pay the witnesses travel.
Witness Availability.
Despite language of MCM, R.C.M. 405(g)(1)(A), there is no per se rule making witnesses located beyond 100 miles from the site of the investigation unavailable.
United States v. Marrie, 43 M.J. 35 (C.M.A. 1995). The IO’s erroneous belief that witnesses located more than 100 miles from the situs of the investigation were unavailable. See also United States v. Burfitt, 43 M.J. 815(A.F. Ct. Crim. App. 1996).
Counsel cannot complain of a wrong and then sit back and do nothing to remedy the situation. United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978) (an accused who was denied the presence of a witness at an Article 32 hearing must move to take that witness’s testimony by deposition);
see also United States v. Roberts, 10 M.J. 308, 311 (C.M.A. 1981); United States v. Marrie, 39 M.J. 993, 998 (A.F.C.M.R. 1994). While these cases focus on the presence of a witness at an Article 32 hearing, we have no problem extending the general principle to depositions.
Counsel must take whatever measures are necessary to preserve the issue or we will view their failure to attend the deposition as waiver.
United States v. Webber, 42 M.J. 675, 678 (A.F.C.C.A. 1995).
The issue of ordering federal employees to appear is interesting.
I don’t believe there’s any question as to law enforcement such as NCIS, CID, OSI, CGIS. There is some interesting law on non-law enforcement employees.
In my view civilian employees can be ordered to appear at an Article 32, UCMJ, hearing in the same manner as military personnel. What the prosecution typically fails to do is go to the civilian employees supervisor and request the person be ordered to attend as a witness. If the prosecution fails to do this, then their argument that the witness is not available is flawed. They have not taken sufficient steps to seek the witness’s attendance.
Civilian employees of the Department of Defense may be directed by appropriate authorities to appear as witnesses in courts-martial as an incident of their employment. Appropriate travel orders may be issued for this purpose.
See Discussion, R.C.M. 703(e)(2), M.C.M. (2008).
In connection with civilian DA employees, see, Weston v. Dept. of Housing & Urban Development, 724 F.2d 943 (Fed. Cir. 1983).
Courts have repeatedly held that removal [of a civilian employee] from employment is justified for failure to cooperate with an investigation.
Sher v. U. S. Dept. of Veteran’s Affairs, 488 F.3d 489, 509 (1st Cir. 2007); Shelton V. Department of Homeland Security, Docket Number SF-0752-04-0805-I-1, 2005 MSPB LEXIS 218 (MSPB January 13, 2005).
R.C.M. 405(f),
regulates production at an Article 32, UCMJ, hearing. There is no reciprocal discovery at an Article 32, UCMJ, hearing despite the belief of some government representatives that there is.
R..C.M. 701 regulates discovery and R.C.M. 702 regulates depositions. There is a limited reciprocal discovery requirement at trial. We can defer talking about these rules until the charges are referred to trial.
Let’s see if we can lay out a defense approach to LTC Lakin’s Article 32, UCMJ, hearing.
1. Advice to the Client.
The client should be advised to avoid all public statements about his case, talking to his friends about the case, talking with his co-workers about the case, basically shut the heck up.
The law is quite clear that only statements made to an attorney, spouse, chaplain, are protected from use at trial. Spontaneous statements to the media, friends, or co-workers are admissible as evidence.
Based on the public statements so far the prosecution seems to have sufficient confessions which now only need be corroborated. As defense counsel we know that the amount of corroboration required at court-martial is – IMHO – lower than that required by the United States Supreme Court. See . . . .
2. Rules of Professional Responsibility.
All counsel, including civilian counsel, are required to abide by the service’s Rules of Professional Conduct. The service professional rules are online.
Here is a link to the Army rules found in AR 27-26, Rules of Professional Conduct for Lawyers.
(Links to Navy-Marine Corps
and Air Force.)
a. Army Rule 3.6 addresses Tribunal Publicity — public statements by counsel involved in a case.
Rule 5.2 addresses the responsibilities of a Subordinate Lawyer. When civilian counsel is retained he/she usually becomes lead counsel with the military counsel becoming a “subordinate lawyer.”
3. LTC Lakin’s counsel can and should submit a request for production of evidence, information, and witnesses under R.C.M. 405(f)(9)(10)(11).
That request should emphasize the language of R.C.M. 405(f)(10) and (g).
Have evidence, including documents or physical evidence, within the control of military authorities produced.
See R.C.M. 405(f)(10).
Here is a link to the basic Production & Discovery Request I use.
Note the reference to conversion on referral.
Remember it is the duty of the Investigating Officer to assist the defense.
While IO’s typically defer to the Government Representative appointed under R.C.M. 405(d)(3)(A), it is the duty of the IO to conduct a proper investigation.
There is no “Trial Counsel” at an Article 32, UCMJ, hearing; a counsel only becomes Trial Counsel upon referral. A Government Representative does not have any authority under R.C.M. 405.
Post-Article 32, UCMJ, hearing.
Transcript at Trial.
In my view, “[M]ilitary due process required the Government to provide transcripts of former testimony to be used in effective rebuttal of his testimony in the instant case.
While we rule that the right to this transcript is based on military due process, we note that federal courts have ruled that adequate representation of indigents includes payments for transcripts of testimony given in prior proceedings in the same case.
See generally United States v. Rosales-Lopez, 617 F.2d 1349 (9th Cir. 1980), aff’d, 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981); United States v. Johnson, 584 F.2d 148 (6th Cir. 1978), cert. denied, 440 U.S. 918, 99 S. Ct. 1240, 59 L. Ed. 2d 469 (1979).
United States v. Toledo, 15 M.J. 255, 257 (C.M.A. 1983).
Motion for a new Article 32, UCMJ, hearing.
Motion for depositions.
God bless and protect Ltc. Lakin and his legal team.
~~Ping!
An American Hero
Lakin ping (great one on discovery) for LucyT’s list
ping
If the Colonel's basic argument about eligibility is justified (and I don't know if it is or not) he had better hope his case eventually gets to a civilian appeals court.That,IMO,is his *only* hope at this point.
The military justice system has its own appellate process. It includes an appeals court that is staffed solely with service branch lawyers (JAGS), and it has another that is staffed by prior-service civilians. That court is called the US Court of Appeals for the Armed Forces (CAAF). While they are civilian judges, they are applying military law. And of course, if they agree to hear the case, then the defendant may apply for cert to the Supreme Court, should he lose on appeal at CAAF. Interestingly, if CAAF denies him, that's it. His appellate options are then almost completely foreclosed.
There is another obscure way that a confined service member could petition for Supreme Court review, but even in the worst case scenario, Lakin wouldn't be confined nearly long enough to use that particular avenue.
Yes,I was given a brief tutorial earlier today by "jagusafr",who's an Air Force JAG,on that court.IIRC you,too,are a lawyer...but I don't know if you are/were a military lawyer or not.The basic attitude of *this* amateur lawyer...which is refuted by "jagusafr" (and very possibly by you) is that the military judge presiding at the Court Martial won't dare allow a word to be uttered about eligibility in the courtroom and that no military appeals court would dare overturn a conviction for any reason.Basically,I don't have *nearly* as much confidence in the basic independence of the military's judicial arm (in *this* case,at least) as jagusafr" does.and I suspect that you'll want to chime in on that as well. ;-)
If you do,I'm all ears!
I do. The military justice system is far more insulated, IMHO, from political pressures than its civilian counterpart. In military justice, there is an element called "undo command influence" (UCI), which can be and is from time to time, used as grounds for an appeal. That influence may come not only from military superiors, but civilian commanders as well.
I am confident that there will be no influence in this case, primarily because everyone is watching, and no one wants to be reversed or vacated on appeal.
<Court-Martial Military Defense Under UCMJ - Ltc Lakin (A work in progress)
Thank you, Seizethecarp.
Please let us know how we can help LTC Lakin. Wondering if it would be helpful (or not) for folks who want to show support to show up in DC on June 6th.
Meant to say on June 11th.
you all are ‘pleased’ at the possibility of discovery? (took me 5 minutes to read the above...confounded...)
a link to the donations account, anyone?? they take Paypal, IIRc..
obumpa
Court-Martial Military Defense Under UCMJ - Ltc Lakin (A work in progress)
Thanks, bitt.
Lakin put zero between a rock and hard place. If he didn’t order court martial, he looks guilty. He is taking his chances with lawyers. As they say in Texas Hold Em. Lakin said...I’m all in.
Maybe, he volunteered to fall on the sword to advance this very serious and dangerous issue.
“Wouldn’t it be interesting if he has the quiet backing of many other concerned officers all the way up Pentagon?”
That would fine, but I’m afraid it just isn’t so. There just isn’t that much courage (a special kind required) in the upper ranks.
Amen --
It sure would.But it would have to be *very* quiet support because if it was at all "noisy" it would be a ticket to a dismissal...or *much* worse.
Maybe, he volunteered to fall on the sword to advance this very serious and dangerous issue.
Who knows? But I doubt that he has a prayer in hell of prevailing here or of even having his basic contention...ineligibility...being heard in the courtroom.Hey,there are those in the military who are willing to fall on a grenade (me,sadly,not being one of them) and there are those willing to ruin their lives trying to expose a serious wrong (assuming,of course,that Hussein *is* ineligible).
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