LTC Lakin update

Thanks to we have the Article 32, UCMJ, IO’s written ruling on several matters in LTC Lakin’s case.

Note, “the Army” did not refuse the defense requests.  The IO did, acting in his role assigned under Article 32, UCMJ, and R.C.M. 405.  This is what I would have expected MAJ Kemkes, the military defense counsel to have told LTC Larkin, and by inference, Mr. Jensen.

The written ruling is as expected.


imageSad, the defense was actually given the opportunity to submit a legal memorandum giving detailed facts and legal arguments to support production of evidence under R.C.M. 405(f)(9), (10).  Inexplicably the defense failed to do that.  I do not see any military judge saying that the IO’s determination was wrong.  Especially as the defense failed to attempt an argument.  I would suggest the issue is waived, at least as to the Article 32, UCMJ, hearing.


image It seems very hard to argue, unfair even, to criticize “the Army” or the “IO” from hiding the ball if, having been given fair notice and an opportunity to argue, the defense waives or fails to exercise the opportunity to state their position with particularity supported by law.

Posted in:

3 responses to “LTC Lakin update”

  1. Tweets that mention LTC Lakin update | Court-Martial Trial Practice -- says:

    […] This post was mentioned on Twitter by CityCountryMe, Phil Cave. Phil Cave said: New blog post: – LTC Lakin update#court-martial lakin […]

  2. Georgetown says:

    One would surmise the Defense now has the opportunity to Appeal the Ruling to the IO”s Superior.

  3. The Law Office of Philip D. Cave Viking says:

    Not exactly.
    1. At the end of the hearing the defense will be given the option to submit written objections to the hearing. R.C.M. 405(j)(4). That includes raising an issue that the IO made erroneous findings or decisions.
    2. The IO can, but is not required to comment on the objections.
    3. When the staff judge advocate (SJA) presents the case to the convening authority the SJA can comment on the objections.
    4. Once charges are referred to trial the defense can make a motion for a new Article 32, UCMJ, investigation or to reopen, based on the errors. In making such a motion the defense will be required to do the same as the IO directed — explain in a reasoned legal brief why there was error, why the error wasn’t waived for failure to comply with the IO’s direction, and whether or not there was prejudice from any error. I doubt a military judge will order a new Article 32, UCMJ, hearing on the issues so far for two reasons: like the IO the MJ will find the requested information irrelevant, and IMHO the defense effectively waived the issue by not briefing the issue. Note that I am not saying that had they briefed the issue they should have won, rather I’m saying that an aggressive, zealous, competent representation of the client on such an issue required the defense to make a good effort to raise and preserve the issue. We have all been in the position of raising an issue we know the IO or MJ will decide against us, but we make the effort to try to lay out the issues. If you or someone else has a copy of what the defense submitted then I’d certainly reconsider my thought if the filing was much detailed and complete than it appears to have been.

Leave a Reply

Your email address will not be published. Required fields are marked *