Trial in the Lakin court-martial is scheduled to begin on 14 December 2010 at 0900. Colonel Sullivan will be in attendance at Fort Meade and will provide information as events warrant. His dispatches will be posted here and updated periodically throughout the day.
Background: LTC Terrrence L. Lakin is charged with one specification of missing movement, in violation of UCMJ Article 87 (10 USC 887); three specifications of failing to obey a lawful order, and one specification of dereliction of duty, all in violation of Article 92, UCMJ (10 USC 892).
0745: Colonel Sullivan is at the site of the trial. It’s cold and snowing; no word on any protestors.
He reports “the word on the street” is that the accused will plead guilty to at least some of the Article 92 specifications and may litigate the Article 87 specification. Possible avenues of defense on that specification were previously discussed on CAAFlog here and here.
A guilty plea to any of the Article 92 specifications would essentially abandon the cherished birther claim that no military orders are lawful under President Obama. Specifications 1-3 of Charge II explicitly allege that the orders were lawful; Specification 4, the dereliction of duty specification, is predicated on the accused’s obligation to report to Fort Campbell in accordance with temporary change of station orders issued in support of Operation Enduring Freedom by Colonel Peter McHugh. If those orders were unlawful, there could be no duty and hence, no dereliction.
0755: Further word from Col Sullivan – the defense team will argue that the Article 92 specifications are multiplicious. On their face, Specifications 1 and 2 of Charge II allege failure to obey orders to report to the brigade commander’s office (issued by two different officers), while Specifications 3 and 4 allege a failure to report to Fort Campbell pursuant to an order issued by the same person. Spec 3 alleges the failure to report as a failure to obey a lawful order; Spec 4 alleges it as a dereliction of duty.
1015: The Lakinista site, safeguardourconstitution.com, has a post on its front page indicating the court-martial “is proceeding on Jan 14-15,” and another next to it saying that the trial is scheduled for December 14-16. There’s probably a valuable lesson in those conflicting bits of information, but at the moment, I can’t quite put my finger on it.
1215: Associated Press reports Lakin entered a guilty plea on at least one specification under Charge II. If this is correct, it means the accused has abandoned the birther claim that no military orders issued while President Obama is commander-in-chief are lawful. AP confirms Colonel Sullivan’s earlier reporting that the defense will litigate the missing movement charge.
For those unfamiliar with the court-martial process: to plead guilty, a military accused must enter into a colloquy with the military judge in which the judge explains the elements of each offense and the legal definitions that accompany it. See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969). The accused has an opportunity to discuss the elements and the definitions with the judge, who must be satisfied that the accused understands them before accepting his plea. The accused must also describe under oath the acts he committed that give rise to his plea, so that the judge is satisfied that he is, in fact, guilty. If the accused makes statements or offers evidence inconsistent with his plea, it cannot be accepted, and the military judge must reopen the discussion with the accused (formally referred to as a “providency inquiry” or more often and informally known as a ”Care inquiry”) to resolve the inconsistency; or, if it cannot be resolved, reject the plea and enter a not guilty plea on his behalf. UCMJ Article 45(a).
Per press reports, it appears LTC Lakin entered guilty pleas to three of the specifications of Charge II. For those pleas to be accepted, he would have to explicitly admit that the orders he received were lawful orders which he had a duty to obey.
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