This is the 9th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,” “Judge to Rules (sic) . . ..”
The Greeley Gazette, hometown newspaper for LTC Lakin has the piece, “Retired JAG Officer Says Judge’s Ruling Against Discovery for Lakin Could Derail Case Based on Legal Precedent.” I posted earlier two quick disagreements with the piece, or what was said in the piece.
First this item:
In issuing the decision, Lind said Lakin would not be permitted to call witnesses because it has the “potential for embarrassment” of the President. Margaret Hemenway, spokeswoman for Col. Lakin, said the judge appeared to imply Lakin could be a racist by asking if this would be happening if Bush were the commander-in-chief.
You can now read the full text of Judge Lind’s findings and conclusions. Even a superficial read of the document will show that the comments attributed to Ms. Hemenway are unfounded. There is nothing specific to embarrassing the president in the findings and conclusions. And there is nothing remotely to find any implication that the military judge thought LTC Lakin to be racist. This is fiction.
It was the defense that introduced the idea that people might think LTC Lakin to be a racist! During the discussion on witness production MAJ Kemkes was giving, as is typical, a summary and rationale for certain witnesses. I have commented on this part before. MAJ Kemkes indicated that they wanted quite a few Soldiers from LTC Lakin’s most recent unit “to rebut any inference that he is a racist or doesn’t like women in the military,” or words to that effect. MAJ Kemkes made reference to some media speculation about LTC Lakin being a racist and so they wanted several character witnesses who were themselves African-American and/or female to show LTC Lakin is not a racist. I think it most unfortunate that a commentator seek to ascribe to the military judge or some other party to the case something the defense said, apparently in a way calculated to ire some about the military judge’s rulings.
Second this item:
The issue of the president’s birthplace is outweighed by “the danger of confusing the issues” according to prosecutors. Eidsmoe said these statements could possibly cause problems for the government’s case based on precedent set in another recent high profile case involving Lt. Col. Michael Murphy.
This is how LtCol Eidsmore apparently summarizes United States v. Murphy., Misc. Dkt. No. 2007-03, 2008 CCA LEXIS 511 (A.F. Ct. Crim. App. December 22, 2008).
Murphy was a high ranking official who served as general counsel to the White House Military office under President George W. Bush. In 2006 the Air Force discovered he had been disbarred for over 20 years in Texas and Louisiana, however, Murphy had told the Air Force he was never subject to any disciplinary issues. The military charged him with nine counts of conduct unbecoming an officer and one count of failure to obey a general regulation. At the arraignment his lawyers requested records from his time with the WHMO arguing the records were needed in order to provide a defense. The WHMO refused to release the documents requested and the judge agreed, ruling that the information was not harming the lawyer’s ability to mount a defense to the charges which did not directly relate to his time at WHMO.
The Air Force Times reported that, “The information would not relate to the facts of the case but could have been useful in presenting what is known as the "good airman” defense, a doctrine in military law that allows the defense to present information about the defendant’s character and job performance.” The judge also ruled that a lack of access to the records would affect the defense’s ability to demonstrate Murphy’s good conduct and performance during the sentencing phase of the trial, calling the ability to present mitigating evidence about conduct “a substantial right of a military accused.” The judge also ruled that even if found Murphy he could not be punished and the Air Force of Criminal Courts agreed.
Eidsmoe said the circumstances in the Murphy case are very similar to Lakin’s case with the refusal to allow documents and witnesses related to the President’s eligibility.
1. Because of Colonel Murphy’s seniority Colonel Henley, Chief Judge, Army Trial Judiciary, sat as the military judge. Colonel Henley is Colonel Lind’s supervisor.
2. The basic issue in Murphy was access to detailed information about Colonel Murphy’s work at the White House that was classified and which, the defense argued, was relevant to Colonel Murphy’s good military character as a defense and for sentencing in the event of conviction.
3. The judge in Murphy found the specific classified information not relevant for the merits, ruling that there was other information available that could get across good military character while at the White House. As people know, specific instances of conduct are not admissible as part of a good character defense unless through cross-examination or to rebut something raised on cross-examination. So, I am not seeing the similarity at all between United States v. Murphy and United States v. Lakin, for the merits in regard to a good soldier defense. It appears that LTC Lakin will have ample opportunity through documents and witnesses to present his good military character defense, information prohibited to Colonel Murphy because of the White House refusal to grant access to classified information. So any analogy to Murphy for this basis is – well — frivolous and nonsensical, IMHO. I’m not seeing the similarity between the two cases. I fail to see how the president’s qualifications or the lawfulness of an order are relevant to a good Soldier defense.
4. Now, let’s look to sentencing in United States v. Lakin. It is generally recognized that the ability to present evidence in extenuation and mitigation is broad and that an opportunity for the accused to testify or make an unsworn statement is similarly broad. However, the right to say anything at all has some limits. For example the issue of comparative sentences, the issue of administrative discharges, and some other collateral issues. See e.g., United States v. Barrier, 61 M.J. 482 (C.A.A.F. 2005); United States v. Snelling, 14 M.J. 267 (C.M.A. 1982); United States v. Mamaluy, 10 U.S.C.M.A. 102, 27 C.M.R. 176 (C.M.A. 1959).
We review a military judge’s decision to restrict an accused’s sentencing statement for abuse of discretion. See generally [United States v.] Grill, 48 M.J. at 132. The Manual for Courts-Martial, United States (2002 ed.), provides an accused with the right to "testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution . . . ." Rule for Courts-Martial (R.C.M.) 1001(c)(2)(A). This traditional right has been described as "broadly construed" and "largely unfettered." Grill, 48 M.J. at 133. However, while "the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained." United States v. Tschip, 58 M.J. 275, 276 (C.A.A.F. 2003); United States v. Jeffery, 48 M.J. 229, 230 (C.A.A.F. 1998).
United States v. Sowell, 62 M.J. 150, 152 (C.A.A.F. 2005). In Sowell (a 4-1 decision) the CAAF held that NMCCA was wrong in upholding a limit on Sowell’s unsworn statement, because it was made in rebuttal to information introduced by the prosecution. Assuming LTC Lakin’s prosecutors do not open the door, then, arguably here is the most important part of Sowell for LTC Lakin.
In Grill, while describing the right of allocution as largely unfettered, we also stated that the right, while "generally considered unrestricted," "was not wholly unrestricted." Id. at 132 (emphasis added); see also Tschip, 58 M.J. at 276. In United States v. Teeter, 16 M.J. 68, 72-73 (C.M.A. 1983)(no obligation to provide accused two chances to defend on the merits through unsworn statement), and more recently in United States v. Barrier, 61 M.J. 482  (C.A.A.F. 2005)(information in unsworn statement must be relevant as extenuation, mitigation or rebuttal), we identified specific limitations on the right of allocution. We also recognized that the unsworn statement remains a product of R.C.M. 1001(c) and thus remains defined in scope by the rule’s reference to matters presented in extenuation, mitigation, and rebuttal. And, as early as United States v. Tobita, 3 C.M.A. 267, 271-72, 12 C.M.R. 23, 27-28 (1953), it was held that on sentencing, the accused cannot impeach the findings.
Id., (emphasis added).
5. LTC Lakin will be allowed to say that he disobeyed the orders because . . . I don’t think he can be prohibited from saying that in an unsworn or sworn statement. Whether or not that is in fact mitigating or extenuating and whether or not it is wise to say is a matter for him and his defense counsel to discuss.
6. Finally, LTC Lakin’s case is one of a significant number of cases which make clear, again, the argument for why the military needs to get on PACER or something similar. I have asked for copies of documents in this case, Dwight “ML” Sullivan of CAAFLog has asked for documents, and Gene Fidell on behalf of NIMJ, has asked for documents. So far no luck to official requests under the FOIA. It’s ironic that Walter Fitzpatrick of JAGHUNTER fame can get them. Members of the public have almost immediate access to federal court filings, rulings, court orders, and decisions, albeit for a small fee, through PACER. Not so the military.
7. CAAF is to be commended for a small step for military-justice-wonk-kind in announcing briefs will be posted on the website for cases scheduled for oral argument (effectively then for most cases granted).