Despite the political rhetoric LTC Lakin’s case has given us a number of teaching moments or opportunity to refresh on some basic practice principles.
1. Can LTC Lakin change lawyers at this stage. The answer in this case is probably yes. Although technically Mr. Jensen should submit a motion to be released and the new counsel file a notice of appearance.
2. Can LTC Lakin’s get a delay in the trial. Trial is currently set to begin 3 November 2010. The current docket is dated 6 October 2010. There is some question whether or not Neal Puckett or his other counsel are available because of the Wuterich trial ongoing. Also, there would be an issue of giving them an opportunity to prepare for trial. The answer to a continuance request in this case is probably yes, unless the prosecution can show an extraordinary adverse effect on their case by a delay.
These are not new issues. I’ve taken over from other civilian lawyers three times in the last two years, and like my colleagues have needed to ask for a delay when coming into the case after it is already underway. Usually that’s not been a problem.
I think United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) would be a useful starting point.
In United States v. Weisbeck the court set forth several factors: "surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witness or evidence requested, length of continuance, prejudice to opponent, moving party received prior continuances, good faith of moving party, use of reasonable diligence by moving party, possible impact on verdict, and prior notice." See United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997).
The question would be a military judge displaying an inelastic attitude in rescheduling a trial. There certainly have been cases where a judge has denied a delay because of a change in counsel or change in civilian counsel. And most of those decisions have been affirmed on appeal. However, see United States v. Wiest, 59 M.J. 276 (C.A.A.F. 2004), in which the court found error in denying a continuance.
My sense though is that Judge Lind will give the new defense counsel a onefer. But for a potential resolution involving another hi-vis civilian attorney (John Galligan, MAJ Hasan’s counsel) see United States v. Lucero, ARMY 20020869, 2007 CCA LEXIS 616 (A. Ct. Crim. App. September 17, 2007), aff’d 67 M.J. 8 (C.A.A.F. 2008), cert. denied __ U.S. ___ , 129 S. Ct. 749 (2008).