Lots of political rhetoric, name calling, and pithy evaluations continue about this court-martial case. But putting the chaff aside there have been and can be a number of teachable moments.
It is unclear what role if any APF will continue to have in this case. The website and a recent email indicate a role limited to publicity for LTC Lakin, his case, and the birther issue. See APF still ‘in the fight’ and apparently LTC Lakin intending to stay the course, and compare with the current site. The United States Patriots Union is now apparently in the game with their four ‘White Papers’. I am labelling them the nativists. While APF has a focus on the birth certificate, the USPU argues the APF position is too narrow and has a focus on the natural born aspect of presidential eligibility as well. Neither theory is helpful to LTC Lakin. Neither theory was helpful before he disobeyed orders and neither is relevant now. Neither theory will ever be relevant to a defense against the current charges. LTC Lakin is in a bind.
I would suspect that the new defense team will bilge the birther/nativist theory. So the question becomes what might be their strategy or approach. I would imagine efforts to avoid or remove this case from trial might be one. Thinking outside the box (or outside the schoolroom solution) is vital. But despite the thinking, can it be done, can a viable defense be fashioned for LTC Lakin.
Let’s assume for the moment that the government feels they must proceed to trial regardless of any attempts to negotiate a diversion or other damage control. This is not a bad decision on the government’s part as the case currently sits. LTC Lakin is condemned by his own words before and after his decision to disobey orders and miss movement. The main hurdles were disposed of at the motions sessions. The difficulties in getting to trial now would be largely administrative to include making sure there are enough members available to form a panel. It is unlikely MDW would use lieutenant colonel’s because of LTC Lakin’s seniority by date of rank, although who knows. Besides, LTC Lakin might decide to go judge alone – with COL Lind (currently). Or the parties might come to a pretrial agreement.
Let’s further assume no pretrial agreement and a contested case. Are there any potential defenses from a defense counsel perspective?
Throw the lawyer under the bus (TMLUB) seems to be a current favorite. Whether that will get relief will be a different question. By that defense I mean a “my lawyer (Mr. Jensen) told me the orders were unlawful and that I could disobey them. I reasonably relied on his advice and I must be found not guilty. Dew Process over at CAAFLog raises the question of “acting on the advice of counsel,” citing to some federal court cases as being a defense to some or all of the charges and also use of a Maynulet approach.
Let’s start with R.C.M. 916(l)(1).
(1) Ignorance or mistake of law. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.
The Discussion to the rule then talks about some situations that could arise. The Discussion states two items of potential interest.
[M]istake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency.
On the other hand, reliance on the advice of counsel that a certain course of conduct is legal is not, of itself, a defense.
Note that the courts have held that the Discussion portion to the rules for courts-martial is not binding. See e.g. United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001); United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008)
It is well settled in civil and military law that mistake of law is generally not a defense to criminal conduct. R.C.M. 916(l)(1) states the following: “Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.” See also Lambert v. California, 355 U.S. 225, 228 (1957).
United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010),
DewProcess points to Maynulet.
WHETHER THE MILITARY JUDGE ERRED WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF MISTAKE OF LAW.
68 M.J. at 375.
The appellant was convicted of assault with the intent to commit voluntary manslaughter as a ‘mercy’ killing. The appellant based part of his argument on the ROE training given in a session “presided over by operational law attorneys, brigade trial counsel, and other judge advocates.” Appellant’s defense then hinged on convincing the members that he believed the legal training he was given allowed for his conduct and that he was acting consistent with that training. In arguing for an instruction this was the part of the Discussion alluded to:
During a colloquy with the military judge, he explained that “mistake of law may be a defense when the mistake results in the reliance on the decision or announcement of authorized public official or agency.” Later during the same colloquy he stated:
[W]hen Captain Maynulet was told that this guy was
going to die and there was nothing that could be done,
right, he was guided not by care of the wounded, not
to shoot somebody who was out of the battle due to
sickness or wounds, but he’s guided by preventing
unnecessary suffering, and that’s what was taught at
the briefings, and that’s what’s in the law.
In civilian practice, this defense is more generally stated as a “reasonable[e] rely[ance] upon an erroneous official statement of the law.”
68 M.J. at 3756-376 (emphasis added).
Ultimately CAAF held that there is was no evidence that a mercy killing is considered lawful, that even if it was lawful that the appellant received no such an instruction, and there was no evidence upon which a reasonable person could consider the training authorized or counseled mercy killing.
Just as in Maynulet there is no evidence for LTC Lakin that anyone in an official position gave him anything but a clear understanding of what the law and his obligations were.
My past experience with this phrase from the Discussion happened in October 2003 in Iraq. The client was a squad leader accused of personally assaulting civilian detainees, conspiracy, encouraging or letting his Soldier maltreat detainees, and wilful dereliction of duty. The military judge allowed defense testimony that during the pre-deployment ROE briefs the battalion commander appeared to encourage and approve assaultive behavior. The platoon leader and another witness testified to being present at the briefing; the that commander held up the ROE card; and that the commander several times stamped his foot and said that the ROE were on the card but that they should kill the b………’s. The judge did not give an instruction. But I was allowed to argue the issue. Ultimately the client was acquitted of everything except negligent dereliction in failing to supervise his Soldiers. (A jury nullification is a likely reason.) That of course was in the very early days of misconduct cases in Iraq. And as a member told me later, “it was a very very difficult decision.” Unlike my client or Maynulet, I do not see a situation where LTC Lakin can take advantage of a “I was told by an official” defense. Because as he himself seems to say in his various documents and chronologies, the advice he was getting from responsible government officials was that the orders were lawful and he should follow them. It seems his unwillingness to accept advice is what got him in trouble. Basically he seemed to be seeking the answer he wanted rather than the right answer. So the Maynulet ‘problem’ for LTC Lakin is who the messenger was. Evidence seems to point to Mr. Jensen as being the messenger, not a government official or even a government lawyer. See e.g. the video’s a Mr. Jensen’s former website. The timing is unclear, but a civilian practitioner very experienced in military law had told LTC Lakin his defense would not work.
The timing could be important. If the advice was given prior to the refusal of orders that would further damn LTC Lakin. If the advice was given after the refusal then it is of insignificant value.
So let’s move on to a TMLUB defense. But before doing so a necessary caution and an experience. Some years ago I had a client who was under investigation for a very serious charge. At the time he had a retirement date. During the course of the investigation and pre-preferral he made multiple visits to the personnel office variously requesting or demanding that he be retired. His thinking was that if he retired he would no longer be subject to jurisdiction, or that the government wouldn’t bother, and that he was doing that on the advice of his military counsel. Ultimately he was charged with several very serious offenses and also trying to avoid trial by demanding his retirement. His defense to the avoiding trial charge was, “my lawyer told me to do it; said it was OK.” Now here’s the caution present in the TMLUB defense not present in the government agent advice defense. For either “defense” you have to put on evidence. Assuming you are using the defense and the issue is “intent,” how do you present evidence as to what the accused was thinking and why he took those actions? Well, the accused has to testify does he not? And once the accused decides to testify does he not waive the attorney-client privilege, albeit it in a limited fashion, as to what was said. See e.g. Pritchard v. County of Erie, 546 F.3d (2d. Cir. 2008). So, if LTC Lakin wants to use a TMLUB defense must he testify and thereby waive the privilege? Of course counsel can object, but I suspect the issue would be waived (as it happened in my case). So too, that means that Mr. Jensen could be subject to testimony or deposition? Or he might even decide to appear voluntarily on behalf of LTC Lakin. Now wouldn’t that add some interesting issues and perspectives. Would this be enough to get some bargaining leverage? Right now LTC Lakin seems to need bargaining leverage?
LTC Lakin appears sufficiently informed about the law. He himself admits that he complained in writing, was denied, and was knowingly disobeying. There appears to have been ample opportunity for him to know the law. In fact some of his own supporters agree that what LTC Lakin did was knowing and deliberate. See e.g.,
These are not the words of an ill informed man, or someone who did not know where his actions might lead. No, these are the words of someone who with full knowledge and composure embarked on a course of action so few would dare to contemplate.
It is with reference to white collar crimes, tax crimes, and union cases that Dew Process raises an interesting point about specific intent crimes (such as missing movement by design), and the TMLUB defense.
It seems to me that a challenge would have to be made to R.C.M. 916(l)(1) as unconstitutionally depriving LTC Lakin of the right to present a defense. But I’ll leave that aspect to someone else. Let’s assume for the moment that the courts comment in Maynulet does leave open a possible partial defense. In federal district court there is a defense to a specific intent offense
Because “good faith reliance upon advice of counsel … establishes a defense” to specific intent crimes, United States v. Hansen, 249 U.S. App. D.C. 22, 772 F.2d 940, 947 (D.C. Cir. 1985), such as § 501(c), appellants assert that the jury should have been given an instruction that good-faith reliance on advice of counsel was a defense to embezzlement.
A defendant is entitled to an advice-of-counsel instruction if he introduces evidence showing: (1) he made full disclosure of all material facts to his attorney before receiving the advice at issue; and (2) he relied in good faith on the counsel’s advice that his course of conduct was legal. United States v. Lindo, 18 F.3d 353, 356 (6th Cir. 1994). The district court is required to give this instruction “if there is ‘any foundation in the evidence’ sufficient to bring the issue into the case, even if that evidence is ‘weak, insufficient, inconsistent, or of doubtful credibility.’ ” United States v. Duncan, 850 F.2d 1104, 1117 (6th Cir. 1988) (quoting United States v. Phillips, 217 F.2d 435, 443 (7th Cir. 1954)).
United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997)(emphasis added).
United States v. Kottwitz, the other case suggested by Dew Process is a reliance on a tax preparer case.
And here’s an interesting case where the accused failed to appear before the grand jury.
Regarding the willfulness element, the court relied on Licavoli v. United States, 111 U.S. App. D.C. 11, 294 F.2d 207, 209 (D.C. Cir. 1961), finding that willfulness under the statute merely requires a deliberate intention to do the act and that advice of counsel does not immunize that simple intention. Id. The court noted that other opinions supported this legal conclusion, citing to United States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992), and United States v. Goldfarb, 167 F.2d 735, 735-36 (2d Cir. 1948).
United States v. Myers, 302 Fed. Appx. 201; 2008 U.S. App. LEXIS 24786 (2d. Cir. December 9, 2008)(unpublished op.).
Based on the above I suspect LTC Lakin and his counsel would be barking up the wrong tree. But, that question might have more resonance than a claim of IAC.
Most if not all of the IAC cases relate to post-preferral effectiveness. DMLHS points to United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992) . In that case the claim was about the civilian counsel misadvising the accused about accepting a pretrial agreement because of personal politics. Ultimately Lonetree cried uncle and negotiated himself a reduction of five years on his sentence. That’s still not close to what might have been on offer of less than 10 even earlier. Other cases of post-preferral and pretrial IAC include United States v. Denedo (immigration impact of guilty plea) and United States v. Miller (sex offender registration).
Is there an element of good faith reliance on the lawyers advice, even if the lawyers advice is wrong. If so, there may be evidence the prosecution can use to rebut a reasonable reliance. Thanks to safeguardourconstitution for being back on line and the availability of some ‘historical’ documents potentially relevant to the defense. Let’s put them in chronological order. Can LTC Lakin have been acting in good faith by accepting and following Mr. Jensen’s advice.
Fall 2008 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Sought information.
11 June 2009: Sought advice through company commander who advised him of the right to submit a Congressional complaint. Note a CG complaint is protected under 10 U. S. Code 1034, from retaliation. Although statements in the complaint can be used as evidence. See United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003).
Winter 2009: (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Sought information, talked with Legal Assistance office at Aberdeen Proving Grounds, MD (no response), began Article 138, UCMJ, complaint process.
Spring /Summer 2009 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Apparently did submit a CG and received a response (contents unknown) from Senator Alexander’s office, talked with Congressman Wamp’s office and a “complaint” was sent to the Army OLA.
Fall 2009 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him):
20 November 2009: Submitted an Article 138, UCMJ, complaint against the Army Chief of Staff. However, it is questionable if Article 138, UCMJ, is the proper method. That article is considered to be for a complaint against the immediate commander. LTC Lakin cites AR 27-10 (the Army version of the JAGMAN, LEGADMINMAN, and AFI 51-201). Chapter 20 deals with Article 138, UCMJ. Under para. 20-4 defines a “commanding officer” as a person in the petitioners chain of command up to the “first officer exercising GCM jurisdiction[.]” See, Response to Article 138, UCMJ, complaint.
11 December 2009: Response to Article 138, UCMJ, complaint.
30 March 2010: Letter to the President.
31 March 2010: Army counseling form DA 4856, in which LTC Lakin is told the facts in what appears to be a clear, accurate, and concise fashion. He is also encouraged to speak with Army Trial Defense Service for guidance.
31 March 2010: Date of first offense. (Note, the argument could be made that LTC Lakin failed to provide sufficient time between his letter to the President and possibly getting a response. Although with other things in this case he left it too late.)
12 April 2010: Date of missing movement “through design” a specific intent offense, in violation of Article 87, UCMJ.
I think there is an opening for LTC Lakin’s counsel to argue some sort of TMLUB. Based on my, rather limited, research in the federal cases that accept and apply this doctrine in specific intent crimes I’m not convinced it would work. I can’t see how a court would view his actions as being “reasonable reliance” on Mr. Jensen’s opinion. There are too many factors arguing the other way. Nor can I see the TMLUB as a part of a “mistake” defense. Because I think the court would see through that argument as just another way to argue the ‘my lawyer told me’ defense.
I thought about jury nullification. That’s certainly a rabbit that Mr. Jensen let loose although not in those terms. But for nullification to work you have to have a sympathetic set of facts and client. I just can’t see that. Even if the members were to view LTC Lakin as sympathetic and a prior good officer, there doesn’t seem to be any sympathy value in his knowingly disobeying orders in the manner the he has. He has put a thumb in the Army eye for a political reason rather than as a mere act of conscience.
I’m open to other ideas — ones which do not relitigate presidential eligibility.