20 August 2010 was the day to submit motions. They would have had up to the close of business.
Nothing on APF in terms of documents filed.
Frankly I’m not expecting anything to be released, certainly not by the government. You will recollect that LTC Lakin and APF has been selective in what documents they publish on the website: no copy of the request to the Article 32, UCMJ, IO, no copy of the OER at issue, but other documents yes. Maybe they’ll post the responses from the government to the discovery and motions so they can argue their points in a vacuum?
In the meantime I’ve updated the LTC Lakin Trial page – here is a portion.
3. Assuming the two above general allegations to be true do they equal unlawful command influence which is prohibited by Article 37, UCMJ, and case law? Answer: No.
First some general history. It is reliably said that one of the influences and motivating factors leading to the Uniform Code of Military Justice (UCMJ) were legitimate widespread complaints about command influence on courts-martials during the Second World War. You can read the legislative history of the UCMJ through the TJAGSA website, or you can read Report of War Department Advisory Committee on Military Justice [Vanderbilt Report], 13 December 1946. In particular the Vanderbilt Report has a summary list of "charges here frequently leveled at commanders, and still leveled.
UCI is often referred to as the "mortal enemy" of military justice. See. e.g., United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2009); United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987); United States v. Weasler, 43 M.J. 15, 16 (C.A.A.F. 1995). I like better the words of Judge John Maksym of the Navy-Marine Corps Court of Criminal Appeals when he was military judge. According to CAAF:
The judge reasoned that the CA improperly "controlled" a prospective defense sentencing witness. This resulted in changing the witness’s anticipated testimony that Appellant should be retained into testimony that only supported the command decision to court-martial Appellant. In fashioning a remedy of dismissal with prejudice, the military judge stated that "the evil here spreads far beyond the four corners of this case . . . ."
In announcing his findings, the military judge stated:
The mandate of United States [v.] Biagase, 50 M[.]J[.] 143 [C.A.A.F. 1999] could not be more clear. Undue and unlawful command influence is the carcinoma of the military justice system, and when found, must be surgically eradicated. And this is going to be what we are about to see, the eradication of something that has shocked the conscience of this court.
United States v. Gore, 60 M.J. 178, 184 (C.A.A.F. 2004).
With that context let’s get back to LTC Lakin’s predicament. Article 37(a), UCMJ, 10 U. S. Code §837(a) states the following:
(a) No authority convening a general . . . court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means,influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. (Emphasis added.)
Based on the plain language of Article 37(a), UCMJ, we can develop several thoughts.
1. LTC Brodsky is a commissioned officer on active duty. Therefore he is like LTC Lakin subject to the Code. See Article 2(a)(1), UCMJ, 10 U. S. Code §802(a)(1).
2. He is not the convening authority or commanding officer. Therefore there needs to be some other basis for him to be included within the concept of a person prohibited from exercising UCI.
3. Finally, he has not sought to reprimand, censure, admonish, influence or coerce the members or the tribunal or a member of the tribunal: note (oddly now I look at this closer) that the accused is not listed in the article. But don’t worry, we’ll get to that in a tanker-minute (this is an allusion – test for MJWonks).
So, where can this or these issues go. Could the UCI issue get any legs. Well, that depends. Here is where I think it’s important to look at the trial counsel (TC) and staff judge advocate (SJA) role in this process. Let me leave you with this thought.
In United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993) the court noted that the SJA generally acts with the mantle of command authority. In essence the SJA is speaking or perceived to speak for the commander in many ways within the MJ process. See also, United States v. McClain, 22 M.J. 124 (C.M.A. 1986). Is a member of the SJA Office arguably exercising command influence. Cf. United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997)(actions of the SJA as UCI).
“In light of the unitary function of a staff judge advocate’s office, action by the trial counsel will be imputed to the staff judge advocate absent evidence indicating that the staff judge advocate did not place his blessing thereon.” See United States v. Johnson, 4 M.J. 8, 9 (C.M.A. 1977).
So, let’s get back to the tanker-minute allusion.
During one or more briefings conducted among officers and noncommissioned officers within his command, General Anderson addressed the subject of testifying at an accused’s court-martial. He stated that he found it paradoxical for a unit commander, who had recommended that an accused by tried by a court-martial authorized to adjudge a punitive discharge, to later appear as a defense character witness at the sentencing stage of the trial, testify as to the accused’s good character, and recommend that the convicted soldier be retained in the service. Some of General Anderson’s remarks were elaborated upon and possibly distorted by his subordinates. Be that as it may, his comments were later interpreted, or misinterpreted, to reflect an intent that a commander, first sergeant, or other person from an accused’s unit, should not give favorable presentencing testimony on behalf of an accused. This interpretation may have also extended to findings. . . .
The exercise of command influence tends to deprive servicemembers of their constitutional rights. If directed against prospective defense witnesses, it transgresses the accused’s right to have access to favorable evidence. U.S. Const. amend. VI; cf. Art. 46, U.C.M.J., 10 U.S.C. § 846. If directed against defense counsel, it affects adversely an accused’s right to effective assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); U.S. Const. amend. VI; cf. Art. 27, UCMJ, 10 U.S.C. § 827, and Art. 37. If the target is a court member or the military judge, then the tendency is to deprive the accused of his right to a forum where impartiality is not impaired because the court personnel have a personal interest in not incurring reprisals by the convening authority due to a failure to reach his intended result. Cf. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927); United States v. Accordino, 20 M.J. 102 (C.M.A.1985).
Thomas, 22 M.J. at 392. (The Tanker Case.)