RECORD OF TRIAL

LAKIN, Terrence L. Lieutenant Colonel (0-5)
Headquarters Company,
Medical Center Brigade U.S. Army WRAMC, DC 20307
By
GENERAL COURT-MARTIAL
Convened by Commanding General
Headquarters, US Army Military District ofWashington
Tried at
6 August, 2 and 28 September,
Fort Belvoir, VA; Fort McNair, DC; 13 October and
Fort George G. Meade, MD 20755 on 14-15 December 2010
INDEX RECORD
Article 39(a) Sessions:
On 6 August 2010 R­ 1
. On 2 September 2010 R -12
i On 28 September 2010 R- 67
i On 13 October 2010 R­ 105
On 14 December 2010 R­ 110,222,244,280
• On 15 December 2010 R- 286,318,321,330,335,432
On 16 December 2010 R- 434,478,488
i Introduction of counsel R- 2,4, 12, 106
Challenges R- 5,223
Arraignment R- 8
Motions R­ 14-110, 164,440
Pleas R­ 113
I Prosecution evidence R- 234
• Defense evidence R­ -­
Instructions on findings R- 296
Findings R­ 163,343
Prosecution evidence R- 344
Defense evidence R- 369
Sentence R- 489
I
Appellate rights advisement R- 445
Proceedings in Revision R­
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TESTIMONY
Name of Witness (Last, First, Middle Initial)
Prosecution
MAJ IVENER, Dominick J.
BEHAN, Sarah
LTC mDD, William D.
COL ROBERTS, Gordon
LTC EDWARDS, Christine
ST ARNES, Kevin
MAJ DOBSON, Crai
MAJ DOBSON, Nicole
Defense
Direct and
Redirect
234,242
248,253
255
264,271
344,354
273,278
281,283
355
363
282
360
COL WILLOUGHBY, Monte 369 375
MAYHAK, Timoth P. 379,394 387
LTC LAKIN, Terrence L. (unsworn) 398
PROSECUTION EXHIBITS ADMITTED IN EVIDENCE
NUMBER OR
LETTER
DESCRIPTION PAGE WHERE­
PE 1 OEF 10 Task#10033.01C) re: LAKIN, Terrence L.
PE2 Orders 054-03, LAKIN, Terrence L.
PE3 Orders 099-17, LAKIN, Terrence L.
PE4 Develo mental Counselin Form, dated 31 Mar 10
PE5 Develo mental Counselin Form, dated 31 Mar 10
PE6
PE 7
PE 8
PE9
PE 10
PE 11
PE 12
PE 13 Extract from "Safe uard our Constitution" website
PE21 DA Form 31 LAKIN, Terrence L., 1-9 ArlO
PE22 " CD statement of LTC Lakin
PE23
PE24
PE25
PE26/27
OFFERED ADMITTED
168
168
168
344
368
368
368
449
168
168
168
168
335
344
368
368
368
449
PE 14 Re uest for Medical Co s MSP, LAKIN, Terrence L.
PE 15 OMPF, re: LTC LAKIN, Terrence L.
PE 16 Email from LTC Lakin to MAJ Ivener
PE 17 Email from LTC Lakin to Ms. Behan, dated 31 Mar 10
PE 18 Email from LTC Lakin to Ms. Behan, dated 5 A riO
PE19 Email from LTC Lakin to Ms. Behan, dated 8 ArlO
PE20 Email from MAJ Ivener to LTC Lakin, dated 9 ArlO
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DEFENSE EXHIBITS ADMITTED IN EVIDENCE
PAGE WHERE
LETTER DESCRIPTION OFFERED ADMITTED
DEA Officer record brief 328 328
DEB-C Photographs 328 328
DED Letters (six letters totaling 8 pages) 328 328
DEE Officer Evaluation Reports 328 328
COPIES OF RECORD
__copy of record furnished the accused or defense counsel as per attached certificate or
receipt.
__copy(ies) of record forwarded herewith.
RECEIPT FOR COPY OF RECORD
I hereby acknowledge receipt of a copy of the record of trial in the case of United States v. LTC
LAKIN, Terrence L. delivered to me at this __ day of____,
(Signature of accused)
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--
EXHIBITS NOT ADMITTED IN EVIDENCEI APPELLATE EXHIBITS
PAGE WHERE­
LETTER
NUMBER OR DESCRlPTlON
OFFERED ADMITTED
AEI Unconditional Waiver of Article 32(b) Investigation 5
AEU Judicial order 13
AEIII 14
AEIV-VI
Gov't request for judicial notice
Defense witness listJDefense motion to compel 14
witnesses/gov't response
AEVIVVIII Defense request for judicial notice/gov't response 24
AEIXlX Request for Deposition and Subpoena/gov't response 29
AEXIIXII Motion to compel w/affidavitlgov't response 31
AE XIII Gov't Request for Interlocutory Ruling 45
AEXIV Motion in limine 62
AEXV Military Judge's Ruling on motions 45
AEXVI Defense response to Gov't Motion in Limine/gov't reply 5
AEXVIII Motion for Continuance 70
AEXIXlXX Request for Redress/Complaint of Wrongs 83
AEXXI Ruling Gov't request for Interlocutory Ruling 95
AEXXII ACCA Denial of Extraordinary Petition for Review 106
AEXXIII Notice of Appearance Mr. Puckett 107
AEXXIV Gov't response unreasonable multiplication 111
AEXXV 111 Defense email response re: unreasonable multiplication
AEXXVI Developmental Counseling Statement 31 Mar 10 (PE 4) 138
AEXXVII Letter from LTC Lakin to President Obama, dated 30 Mar 10 148
AE XXVIIIIXXIX Flyer - Finding Required 166
AEXXX Member question of Ms. Behan by COL Mellon 254
AEXXXI Member question of LTC Judd by COL Deaner 263
AEXXXII Prosecution brief re: missing movement 292
AEXXXIII Findings worksheet 294
AE XXXIV I ov't ;owerpoint slides - closing
AEXXXV 296
AE XXXVI/XXXVII TC-drafted curative instructionlMJ tailored instruction 319
AEXXXVIII Member question of the court 329
AEXXXIX Providence inquiry 435
AEXL Sentence worksheet 443
AEXLI Post-trial/appellate rights 445
AEXLII Sentence instructions 448
AEXLIII Supplementary instruction - use of computer to view evidence 478
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1 PROCEEDINGS OF A GENERAL COURT-MARTIAL
2
3 The military judge called the Article 39(a) session to order at 1121,6 August 2010, at Fort Belvoir,
4 Virginia, pursuant to the following orders:
5
6 Court-Martial Convening Order Number 4, Headquarters, US Army Military District of Washington,
7 dated 4 March 2009.
8 [END OF PAGE]
9
1
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DEPARTMENT OF THE ARMY
U.S. Army Military District of Washington
Fort Lesley J. McNair, DC 20319-5058
COURT-MARTIAL CONVENING ORDER 10 December 2010
NUMBER 8
The following members are excused from the General Court-Martial convened by Court-Martial
Convening Order Number 4, this headquarters, dated 4 March 2009, for the trial of United States v. LTC
Terrapce L. Lakin, HQ CO, MCB, WRAMC:
COL RICHARDSON, Laura, A V, OCLL
LTC FORTE, Robert, IN, TOG
LTC BARTLETT, Michael W., Jr., FA, NDU
COL LASTER, Billy J., IN, DCS
LTC WOOSLEY, Carol K., TC, NGB
LTC BURBANK, John J., OD, D1A
COL BEOUGHER, Guy C., LG, OCSA
LTC MCCORMICK, Kendrick, MP, USAG
LTC ESCH, Andrew J., AG, TUSAB
MAJ CHERRY, Joe L., Jr., IN, NGB
The following members are detailed to the General Court-Martial convened by Court-Martial Convening
Order Number 4, this headquarters, dated 4 March 2009, for the trial of United States v. LTC Terrance L.
L-akin , HQ CO, MCB, WRAMC:
COL BURKE, Roderick, AD, ATEC
LTC SCHMOYER, Timothy R., FA, DISA
COL DEANER, Loretta A., EN. ACSIM
COL THOMPSON, Stevan H., DC, WRAMC
COL AHN, Michael c., EN, ACSIM
COL GERDING, Gail 1.., AG, AFRBA
COL STRONG, Mark c., FA, NGB
COL VANWILLTENBURG, Philip, FA, DIA
COL MELLON, Stuart A., EN, NGB
COL TORRISI, Annette L., MI, D1A
BY COMMAND OF MAJOR GENERAL HORST:
~ " ' ~ ~
DISTRIBUTION: ANGEL M. OVERGAARD
Each Indiv Indicated (1) CPT, JA
Record of Trial (t ) Acting Chief, Military Justice
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2D CORRECTED COpy
DEPARTMENT OF THE ARMY
United States Army Military District of Washington
Washington, DC 20319-5058
COURT-MARTiAl, CONVENiNG ORDER 4 March 2009
NUMBER 4
Pursuant to authority contained in paragraph 1, Oeneral Order Number 3, Headquarters, Department ofthe Anny,
dated 19 January 1981, a general court-martial is hereby convened, It may try such persons as may properly be
brought before it and shall meet at Fort Lesley J. McNair, Washington, DC 20319, unless otherwise directed. The
court-martial will be constituted as follows:
COL RICHARDSON, Laura, AV, DCLL
LTC FORTE, Robert, IN, TOG
LTC BARTLETT, Michael W., Jr., FA, NDU
COL LASTER, Billy J., IN, DCS
eTC WOOSLEY, Carol K., TC, NOB
LTC BURBANK, John J., OD, DrA
COL BEOUGHER, Guy C., LO, OCSA
LTC MCCORMICK, Kendrick, MP, USAO
LTC ESCH, Andrew 1, AG, ruSAB
MAl CHERRY, Joe L., Jr., IN, NGB
In the event that the accused submits a request pursuant to Article 25( c), UCMJ, that the court be composed ofat
least one-third enlisted members, the court will be composed ofthe following officer and enlisted members:
LTC BARTLETT, Michael W., Jr., FA,
COL LASTER, Billy J., IN, DCS
LTC WOOSLEY, Carol K., TC, NGB
LTC BURBANK, John J., 00, DIA
COL BEOUGHER, Guy C., LO,OCSA
MAJ CHERRY, Joe L., Jr., IN, NOB
CSM MARKS, Andrea, HQ CMD BN
CSM JACKSON, Maurice, TOO, HHC
MSG DEVAUGHN, Donnie A., HRC
SFC ALVAREZPAGAN, Carlos J., HRC
All cases referred to the general court-martial convened by order number 1 this Headquarters, dated 13 March 2008,
in which the proceedings have not begun, will be brought to trial before the court-martial hereby convened,
BY COMMAND OF MAJOR GENERAL ROWE:
'),
'\
! \.
I: J' \ ' ' ' ' ~ / ' / ~ '
DISTRIBUTION: <J,\SADEN FEIN
I·Each Individual Concerned CPT,JA
l-Each copy Record ofTrial Chief, Military Justice
l-Record Set
l-Reference Set
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MJ: This Article 39(a) session is called to order.
We are ready to proceed with the arraignment in United States v. Lakin. Trial counsel?
TC: This court-martial is convened by Court-Martial Convening Order Number 4,
Headquarters, US Army Military District of Washington, dated 4 March 2009, copies of which have
been furnished the military judge, counsel and the accused, and which will be inserted at this point in the
record.
The charges have been properly referred to this court for trial, and were served on the
accused on 21 July 20lO [sic-22 July 20lO].
The prosecution is ready to proceed in the case of United States v. Lakin.
The accused and the following persons detailed to this court are present:
COLONEL DENISE LIND, MILITARY JUDGE;
CAPTAIN JONATHAN KOBRINSKI, TRIAL COUNSEL;
LIEUTENANT COLONEL STEVEN BRODSKY, ASSISTANT TRIAL
COUNSEL;
MAJOR MATTHEW KEMKES, DEFENSE COUNSEL; AND
MR. PAUL ROLF JENSEN, CIVILIAN DEFENSE COUNSEL.
The members are absent.
Mr. Leo Bulavko has been detailed reporter for this court, and has been previously sworn.
All members of the prosecution have been detailed to this court-martial by Colonel Corey
L. Bradley, Staff Judge Advocate, US Army Military District of Washington. All members ofthe
prosecution are qualified and certified under Article 27(b) and sworn under Article 42(a), Uniform Code
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of Military Justice. No member of the prosecution has acted in any manner, which might tend to
disqualify us in this court-martial.
MJ: Thank you.
When did you say Lieutenant Colonel Lakin was served?
TC: Your Honor, he was served on 22 July 2010.
MJ: Thank you.
Lieutenant Colonel Lakin, I'm going to talk to you now about your rights to counsel.
You have the right to be represented by Major Kemkes, who is your detailed military
defense counsel. He is a lawyer, certified by the Army Judge Advocate General as qualified to act as
your defense counsel; he is also a member of the United States Army Trial Defense Service. His
services are provided at no expense to you.
You also have the right to be represented by military counsel of your own selection,
provided the counsel you request is reasonably available. If you're represented by military counsel of
your own selection, then your detailed defense counsel would normally be excused. You could request
to have your detailed military defense counsel remain on the case, but that request would not have to be
granted.
In addition to your military counsel, you have the right to be represented by a civilian
counsel at no expense to the government. Civilian counsel may represent you along with your military
defense counsel, or you could excuse your military defense counsel and be represented solely by your
civilian counsel.
Do you understand your rights to counsel?
ACC: Yes, Your Honor.
3
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MJ: Do you have any questions about them?
ACC: No, ma'am.
MJ: By whom do you wish to be represented?
ACC: By Major Kemkes and Paul Rolf Jensen.
MJ: By them alone?
ACC: Yes, ma'am.
MJ: Major Kemkes, please announce your detail and qualifications for the record.
DC: I've detailed myself to this court-martial [Senior Defense Counsel, National Capital
Region]. I'm qualified and certified under Article 27(b) and sworn under Article 42(a), Uniform Code
of Military Justice. I have not acted in any manner, which might tend to disqualify me in this court-
martial.
MJ: Thank you.
Mr. Jensen, please state for the record your full name, legal qualifications and business
address.
CDC: Thank you, Your Honor, good morning. I'm Paul Rolf Jensen; I'm an attorney, and I'm
licensed to practice law in the State of California. I'm a member in good standing of the bars of the
United States Supreme Court, United States Court of Appeals for the Armed Forces, the United States
Court of Appeals for the Ninth Circuit, the United States District Courts for the Central District of
California and the Northern District of Florida.
My address is 650 Town Center Drive, 12th Floor, Costa Mesa, California 92626.
I have not acted in any manner which might tend to disqualify me in this court-martial.
[The civilian defense counsel was sworn.]
4
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1 MJ: I have been properly certified and sworn, and detailed myself to this court-martiaL
2 I'm not aware of any ground which might be a matter for challenge against me. Does
3 either side desire to question or challenge me?
4 TC: No, Your Honor.
5 CDC: No, Your Honor.
6 MJ: Counsel for both sides appear to have the requisite qualifications, and all personnel
7 required to be sworn have been sworn.
8 Trial counsel, please announce the general nature of the charges.
9 TC: The general nature of the charges in this case is
10 Missing movement, in violation of Article 87 of the Uniform Code of Military Justice;
11 Failure to obey a lawful order from a superior commissioned officer, in violation of
12 Article 92 of the Uniform Code of Military Justice; and
13 Dereliction of duty, in violation of Article 92 of the Uniform Code of Military Justice.
14 The charges were preferred by Captain Lance Jelks, and forwarded with
15 recommendations as to disposition by the same Captain Jelks, and by Major General Carla Hawley­
16 Boland. Colonel Roberts, the Summary Court-Martial Convening Authority, forwarded the charges
17 without recommendation. The Article 32 investigation was waived.
18 MJ: Is there a written waiver of the Article 32 investigation?
19 CDC: There is, Your Honor.
20 MJ: Apparently so.
21 I have before me what's been marked as Appellate Exhibit I, which is an unconditional
22 waiver of Article 32 investigation, dated 4 June 2010.
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Lieutenant Colonel Lakin, do you have a copy of what I have marked as Appellate
Exhibit I before you?
ACC: Yes, Your Honor.
MJ: Is that your signature there on the second page?
ACC: Yes, Your Honor.
MJ: Counsel, is that both your signatures there as wel1?
CDC: Yes, it is, Your Honor.
DC: Yes, ma'am.
MJ: Lieutenant Colonel Lakin, did your counsel advise you of what an Article 32
investigation is before you agreed to waive yours?
ACC: Yes, Your Honor.
MJ: Do you understand that no charge against you may be tried at a general court-martial
without first having had an Article 32 investigation concerning that charge, unless you agree otherwise?
ACC: Yes, Your Honor.
MJ: Do you understand that the primary purpose of an Article 32 investigation is to have a
fair and impartial hearing officer inquire as to the truth of the matters set forth in the charges, and to
obtain information upon which to recommend what disposition should be made of your case?
ACC: Yes, Your Honor.
MJ: Do you also understand that you have the right to be present at the Article 32
investigation, and to be represented by counsel at that Article 32 investigation?
ACC: Yes, Your Honor.
6
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MJ: Do you understand that you could call witnesses, cross-examine government witnesses,
and present documents for the investigating officer to consider in arriving at his or her recommendation?
ACC: Yes, Your Honor.
MJ: Do you understand that you could've provided sworn or unsworn testimony at the Article
32 investigation?
ACC: Y es, Your Honor.
MJ: Do you also understand that one possible strategy for you and your counsel at the Article
32 investigation could have been to attempt to have the Article 32 investigating officer recommend a
disposition of the charges in some fashion other than trial by general court-martial?
ACC: Yes, Your Honor.
MJ: Did you know about all of these rights that you would have at the Article 32 investigation
when you agreed to give up your right to have one?
ACC: Y es, Your Honor.
MJ: Do you freely and willingly agree to proceed to trial by general court-martial without an
Article 32 investigation in your case?
ACC: Yes, Your Honor.
MJ: Mr. Jensen, the title of Appellate Exhibit I is "Unconditional Waiver of the Article 32
Investigation." Is it the defense's understanding that this is an unconditional waiver?
CDC: It is.
MJ: Lieutenant Colonel Lakin, is that your understanding?
ACC: Yes, ma'am.
MJ: Government, is that your understanding?
7
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1 TC: Y es, Your Honor.
2 MJ: Lieutenant Colonel Lakin, I'm going to talk to you now about your forum rights.
3 You have the right to be tried by a court consisting of at least five officer members. If
4 you're tried by court members, the members will vote by secret, written ballot, and two-thirds of the
5 members must agree before you could be found guilty of any offense. If you were found guilty, then
6 two-thirds must also agree in voting on a sentence, and if the sentence includes confinement for more
7 than 10 years, then three-fourths of the members would have to agree.
8 You may also request to be tried by military judge alone. If your request is approved,
9 there would be no court members, and the military judge alone would decide whether you are guilty, and
10 if you were found guilty, the military judge alone would determine your sentence.
11 Do you understand the difference between trial with members and trial by military judge
12 alone?
13 ACC: Yes, Your Honor.
14 MJ: Do you have a forum selection at this time?
15 CDC: Your Honor, at this time, the defense requests to defer motions, plea and forum.
16 MJ: That request is granted.
17 Lieutenant Colonel Lakin will now be arraigned.
18 TC: All parties to the trial have been furnished with a copy of the charges. Does the accused
19 want them read?
20 CDC: We waive the reading, Your Honor.
21 MJ: The reading may be omitted.
22 [THE CHARGE SHEET FOLLOWS AND IS NOT A NUMBERED PAGE.l
8
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CHARGE SHEET
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..
CHARGE SHEET
I. PERSONAL DATA
1. NAME OF ACCUSED (Last, First, MI) 2. SSN 3. GRADE OR RANK 14. PAY GRADE
LAKIN, Terrence L. LTC 0-5
5. UNIT OR ORGANIZATION 6. CURRENT SERVICE
Headquarters Company, Medical Center Brigade,
a. INITIAL DATE
I b. TERM
Walter Reed Army Medical Center, Washington, DC 20307 18 June 1993 INDEF
7. PAYPERMONTH 8. NATCRE OF RESTRAlNT OF ACCUSED 9. DATE(S) IMPOSED
a. BASIC b. SEA/FOREIGN DUTY c. TOTAL
None.
7'S" ?t?' Q «' c> ,""=\ QfC., \ 0


N/A
$ 71959.99 None '1?t!
II. CHARGES AND SPECIHCATIONS
10. CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 87
The Specification: Tn that Lieutenant Colonel Terrence L. Lakin, US Army, did, at or near Arlington, Virginia, on or
about 12 April 201 0, through design, miss the movement of US Airways Flight Number 1123, departing from
Baltimore/Washington International Airport arriving in Charlotte, North Carolina, in order to dJijlloy for a Temporary
Change of Station in support of Operation Enduring Freedom with the 32nd € 101st Airborne
Division (Air Assault), Fort Campbell, Kentucky, with which he was required in the course of duty to move.
CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 92
Specification 1: In that Lieutenant Colonel Terrence L. Lakin, US Army, having knowledge of a lawful order issued
by Lieutenant Colonel William Judd, to report to the office of his Brigade Commander, Colonel Gordon R. Roberts, at
1345 hours, or words to that effect, an order which it was his duty to obey, did, at or near Arlington, Virginia, on or
about 31 March 2010, fail to obey the same by wrongfully not reporting as directed.
Specification 2: In that Lieutenant Colonel Terrence L. Lakin, US Army, having knowledge of a lawful order issued
by Colonel Gordon R. Roberts, to wit: a memorandum signed by the said Colonel Gordon R. Roberts, dated 31 March
e1OSan order which it was his duty to obey, did, at or near Arlington, Virginia, on or about 31 March 2010, fail to
obey the same by wrongfully not reporting as directed.
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(SEE CONTINUATION SHEET)
III. PREFERRAL
Il a. NAME OF ACCUSER (Last, First, MI) b. GRADE Ic. ORGANIZATION OF ACCUSER
JELKS, LANCE L. 0-3 HQ COMPANY, MCB, WRAMC
d. SIGNATURE OF ACCUSER e. DATE
Afi(
<"J
AFFIDA VIT: Before me, the undersigned, authorized by law to administer oaths in cases of this character, personally
appeared the above named accuser this l2- AfVJ '- ,2010, and signed the foregoing charges and specifications under oath
that he/she is a person subject to the Uniform Code ofMilitary Justice and that he/she either has personal knowledge of or
has investigated the matters set forth therein and that the same are true to the best of hislher knowledge and belief.
HEIDI R, STOLTZFUS OCJA, WRAMC
Typed Name ofOfficer Organi=ation ofOfficer
0-3
{) Article 136, UCMJ

'/ Official Capacity to Administer Oath

(See R.C.M 307(b) must be a commissioned officer)
V /J 1/
DD FORM 458, MAY 2000 PREVIOUS EDITION IS OBSOLETE.
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12.
On J..d-, A. £1'\ \ ,_2010, the accused was informed ofthe charges against himlher and of the name(s) of The
accuser(s) known to me (See R.C.M 308 (a}). (See R.C.M 308 ifnotification cannot be made.)
LANCE L. JELKS HQ COMPANY, MCB, WRAMC
Organi:::ation ofImmediale Commander
0-3
Grade

IV. RECEIPT BY SUMMARY COURT-MARTIAL CONVENING AUTHORITY
13.
The sworn charges were received at l \ If 5 hours, a eyc: I ,2010at Headquarters, Medical Center Brigade,
Designalion ofCommand or
Walter Reed Army Medical Center
Officer Exercising Summary Court-Martial Jurisdiclion (See R.CM. 403)
FOR THE-+
TSEHAI CROCKETT -LYNN ACTING COMMANDER
Typed Name ofOfficer Official Capacity ofOfficer Signing
0-5
V. REHRRAL; SERVICE Of CHARGES
14a. DESIGNATION OF COMMAND OF CONVENING AUTHORITY b. PLACE
c. DATE (yYrYMMDD)
Headquarters, United States Army
Military District of Washington Fort McNair, DC
20100721
Referred for trial to the Gen era1
court-martial convened by Cour t -Mar t i a 1 Con yen i ng
Order Number 4, this headquarters, dated
4 March 2009 , subject to the following instructions:
none.
By Command
of MAJOR GENERAL KARL R. HORST
Command or Order
ASHDEN FEIN
Chief. Military Justice
Typed Name ofOfficer
Official capacily '11QJfiQ;.r§!EIIL'13..
7"tc::':'I1="::"',, -1"'-(JppIIC(iMe jfordl ,poe \'!ri( kl'll
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DIJ FORM -ISH (BACK), MA Y 2000
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CONTINUATION SHEET 1, DD FORM 458, PERTAINING TO LTC TERRENCE L. LAKIN,
HEADQUARTERS COMPANY, MEDICAL CENTER BRIGADE, WALTER REED ARMY
MEDICAL CENTER, WASHINGTON, DC 20307
Item 10, continued:
CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 92
Specification 3: In that Lieutenant Colonel Terrence L. Lakin, US Army, having knowledge of a lawful
order issued by Colonel Peter M. McHugh, to wit: Temporary Change of Station orders 099-17, dated 9
April 201 0, issued by Colonel Peter McHugh, requiring the said Lieutenant Colonel Terrence L. Lakin to
report to Fort Campbell, Kentucky not later than 1500 hours on 12 April 2010, an order which it was his
duty to obey, did at or near Washington, District of Columbia, on or about 12 Apri12010, fail to obey the
same by wrongfully failing to report to 32nd Calvary Regiment, 101st Airborne Division (Air Assault), Fort
Campbell, Kentucky. ,0
po 1"I'Q':C:Jd
Specification 4: In that Lieutenant Colonel Terrence L. Lakin, US Army, who knewoQr Ilhgnld ,have kAgwli
of his duties at or near Washington, District of Columbia, on or about 12 April 2010, was derelict in the
performance of those duties in that he willfully failed to report to Fort Campbell, Kentucky in accordance
with Temporary Change of Station orders 099-17, dated 9 April 20 1 0, issued by Colonel Peter McHugh, in
support of Operation Enduring Freedom, as it was his duty to do.
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DEPARTMENT OF THE ARMY
WAL TER REED ARMY MEDICAL CENTER
6900 GEORGIA AVENUE, N.W.
WASHINGTON DC 20307-5001
FlEPlYTO
ATTEN110N OF:
MCHL-MCB 16 April 2010
MEMORANDUM FOR SEE DlSTR1BUTJON
SUBJECT: Assumption of Command by Authority of Para 2-3. AR 600-20
The undersigned assumes Command of Headquarters, Medical Center Brigade, Walter Reed
Army Medical Ct:nter, Washington, DC 20307-5001. effective 0001, 16 April 2010 through
2400,25 April 2010.
~ O C K E
LTC,MS
Acting Commander
DISTRIBUTION:
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TC: The charges are signed by Captain Lance Jelks, a person subject to the Code as accuser;
are properly sworn to before a commissioned officer of the armed forces authorized to administer oaths;
and are properly referred to this court for trial by Major General Karl R. Horst, the Convening
Authority.
MJ: I understand that you've already requested to defer plea, but I'm going to ask that you
stand and we'll go through the plea colloquy.
[The accused and his counsel did as directed.]
Lieutenant Colonel Lakin, how do you plead? Before receiving your plea, I advise you
that any motion to dismiss, or grant other appropriate relief, should be made at this time. Your defense
counsel will speak for you.
CDC: Your Honor, we request to defer plea and motions, and as I said, forum, at this time.
MJ: Please be seated. That request, as I said before, is granted.
[The accused and his counsel did as directed.]
Lieutenant Colonel Lakin, what has just happened is called an arraignment. An
arraignment has certain legal consequences, and I'd like to talk to you about one of those now.
Under ordinary circumstances, you have the right to be present at every stage of your
trial. However, if you were voluntarily absent on the date this trial is scheduled, or any other
proceeding in this case is scheduled, you may forfeit the right to be present. For example, if you were
absent without leave, the trial could go forward on the scheduled date, even though you were not here.
I'm not suggesting you're going to go AWOL or anything like that; this is standard advice that I give in
every arraignment that I do.
Do you have any questions about that?
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ACC: No, Your Honor.
MJ: I'd like to synopsize my meeting with counsel prior to the trial to discuss scheduling and
other logistics issues in the case.
Per the parties' agreement, the court has set the following suspenses and dates
Motions, witness and evidence production and discovery are due by the parties on the
20
th
of August; any responses to motions filed, and government objections to production of witnesses
and evidence for the defense, are due on the 27th of August.
We have set an Article 39(a) hearing date on the 2
nd
of September 2010 at 11 o'clock to
litigate any witness and evidentiary issues. We have further set an Article 39(a) session on the 14th of
September 2010 at 11 o'clock to litigate other motions and issues that arise in the case.
We have set this case for trial on the 13
th
through the 15
th
of October 2010 at 0900.
Does either side have anything further to add to the court's synopsis of what was
discussed?
CDC: Not from the defense, thank you.
TC: No, Your Honor.
MJ: Are those suspenses and dates that I just set forth on the record agreeable to both sides?
CDC: Yes, they are.
TC: Yes, ma'am.
MJ: Is there anything else we need to address today before we recess the court?
CDC: Thank you, no.
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1 TC: No, ma'am.
2 MJ: Court is in recess.
3 [The session recessed at 1134, 6 August 2010.]
4 [END OF PAGE]
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[The session was called to order at 1108,2 September 2010.J
MJ: Court is called to order.
Trial counsel, please announce the status of the parties.
TC: Your Honor, Captain Philip O'Beirne [TC] and Captain Angel Overgaard [ATC] have
been detailed to this court-martial by Colonel Corey L. Bradley, Staff Judge Advocate, Military District
of Washington. We are both qualified and certified under Article 27(b) and sworn under Article 42(a) of
the Uniform Code of Military Justice. Neither of us has acted in any manner, which might tend to
disqualify us.
In addition, Lieutenant Colonel Brodsky is detailed off of this case.
[CPT Kobrinski will be identified as A TC2 for the remainder of the case. J
MJ: Are all of the other parties who were present when the court last recessed again present in
court?
TC: Yes, Your Honor.
MJ: Lieutenant Colonel Lakin, before we begin today, we arraigned this case on the 6
th
of
August 2010. My records indicate that at that time, I advised you of your rights to counsel; you
basically have three your right to detailed military counsel; your right to request military counsel of
your own selection; or your right to choose civilian defense counsel, and either excuse your military
counselor keep your military counsel. At that time, you advised me that you wanted to be represented
by Mr. Jensen and by Major Kemkes, and by them alone.
Is that still your selection?
ACC: Yes, ma'am.
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MJ: Also at the arraignment, my records indicate that I advised you of your right to be tried
before a panel of officer members that is, five officer members; and your right to be tried by military
judge alone. My records indicate that the defense has deferred plea and forum.
Is that still your preference today?
ACC: Yes, ma'am.
MJ : You wish to continue to defer, is that right?
ACC: Yes, ma'am.
MJ: Before we begin today, just a bit of background.
We did arraign this case on the 6
th
of August 2010. At that time, we established follow-
on motion and trial dates, as well as suspense dates. We established the 20
th
of August 2010 for
motions, and for witness lists from both sides, and the 2ih of August for responses to those motions and
any government objections to the defense request for production of witnesses and evidence. We set
today to litigate witness production and evidence production issues; and we set the follow-on proceeding
on the 14th of September to litigate motions that have been filed by the government.
On the 26
th
of August, the court received an email request from the defense for a delay
and change in the briefing schedule to allow them to respond to the government motions after the ruling
of the court today on witness and evidence production issues. I granted that issue, and now, we have a
schedule where the defense responses to government motions will be tiled no later than 7 September
2010, and the government replies thereto will be filed no later than 9 September 2010.
Has a copy of that order been marked for the record?
It has; that's been marked as Appellate Exhibit II. I'd also like the email attachments to
go with Appellate Exhibit II.
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Today, we have a number of issues to address. Before we do that, let me state for the
record I met with counsel in chambers prior to coming into court today; that's what I do to discuss
logistics and scheduling issues that arise in cases. At that time, we discussed the issues that would be at
issue today.
Has the government motion to take judicial notice, dated 20 August 2010, been marked
as an appellate exhibit?
I have before me what's been marked as Appellate Exhibit III, which is a motion to take
judicial notice from the government of Army Regulation 600-8-105, Military Orders, dated 28 October
1994; and two, Department ofthe Army Personnel Policy Guidance (DA PPG) for Overseas
Contingency Operations, Chapter 11, dated 1 July 2009.
Mr. Jensen, does the defense have an objection to my taking judicial notice of these
regulations?
CDC: No, Your Honor.
MJ: I will take judicial notice ofboth of those regulations.
We have the defense witness list, dated 20 August 2010 - the defense witness list is
marked as Appellate Exhibit IV; a defense request for witness production, marked as Appellate Exhibit
V; and the government response to the defense request witnesses has been marked as Appellate Exhibit
VI.
Government, if I understand this, am I correct that you have agreed to produce the
following witnesses for the merits: Colonel William Rice; Colonel Dale Block; Major Dominick Ivener;
Mr. Henry Jung; Ms. Sarah Behan?
TC: Yes, Your Honor.
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MJ: Is there any other witnesses that the government has no objection to?
TC: Your Honor, to the extent that there is a long list of witnesses that we believe are being
offered for a 'good soldier' defense, or a good duty perfonner defense, the government argues that 15
witnesses would be excessive, and would ask that the court come up with a number that is more
reasonable and not cumulative under Rule 403, etcetera. There's no particular witnesses among that
group that the government objects to, but we'd offer that five each from multiple portions of the
accused's career is in excess ofwhat's required.
MJ: The government has, in its response, objected to the witness synopses, saying that they
don't meet the requirements ofRCM 703 and US v. Rockwood, that the synopses must list the subject
to be addressed, and what the witness will say about the subjects.
TC: Yes, Your Honor. That's the case for all the defense witnesses, to the extent that the
government could glean, essentially. Based on the identity of the witness, we were anticipating what the
defense purpose was. We would represent that all the requests fail to state the stipulation of expected
testimony; merely the subject matter that they would testifY to. That goes not only for the character
witnesses, but for the factual witnesses as well.
MJ: I'm looking at Appellate Exhibit V; it has, for example, Mr. Lorin Friedman. Mr.
Friedman will testifY about conversations he had with the accused concerning all sorts of different
things. How does that meet the requirements ofthe rule?
TC: That's the only one, Your Honor, that the government believes satisfies the rule. We
don't believe that that's accurate, based on what the expected testimony to be.
MJ: That's a different issue.
TC: Yes, ma'am.
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MJ: For example, Ms. Betsy Hata; she'll testify that she's the records custodian for Mr.
Obama's high school records that may contain a birth certificate or other documentation that establishes
his place of birth. What's wrong with that synopsis?
TC: Your Honor, we don't believe that that's necessarily the expected testimony, but in
addition, there's also a relevance objection. There were various other details among the requests for
factual witnesses; some of them merely state, for example - the first one would testify about where he
was born - that's different than a stipulation of expected testimony. Regardless, the government also
has an objection ---­
MJ: I understand your objection that the defense has not given an adequate synopsis.
TC: Yes, Your Honor. The government's argument is that under Rockwood, the proffer has
to go to the substance of the testimony, not merely the topic.
MJ: How would you suggest they go in more detail with Ms. Hata?
TC: Your Honor, the issue is what the birth records say, or any ofthe other documents or
evidence that they're requesting; we believe it states the opposite of what the defense uses for a factual
basis.
So, to the extent the defense is seeking factual evidence they believe is relevant to some
fact at issue in this case, not only do we believe think is not relevant, but we also believe that the
expected testimony is going to set a factual predicate that is to the opposite of what the defense's
argument is going to be, which makes it not a proper witness to bring to bear in order to support some
legal theory or argument that they'd need the witness for.
MJ: Let's leave out the birth certificate/natural born citizen witnesses.
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I assume the defense is requesting these witnesses on the merits to mount a 'good soldier'
defense, is that correct?
CDC: Yes, Your Honor.
MJ: If you would, please, let's go through them; the government is not objecting to Colonel
Rice, Mr. Friedman - Mr. Friedman, they are objecting to?
CDC: Your Honor, we will withdraw Mr. Friedman.
MJ: So, Mr. Friedman is no longer at issue.
As I look through then, we have Ms. Hata, Ms. Fukino and Mr. Eggito are with respect to
records about President Obama. Is that correct?
CDC: Yes.
M.l: Going further, Major Ivener is not objected to by the government; Mr . .lung is not
objected to and neither is Ms. Behan.
Let's talk about Mr. Berman then. Mr. Berman is another records custodian witness?
CDC: Y es, Your Honor.
MJ: When do we get to the next witness that will be a "good soldier" defense merits witness?
Would that be Lieutenant Colonel Willoughby?
CDC: Your Honor, I'm not sure I heard you, but if I understood, you were asking if the next
witness not related to the natural born citizenfbirth certificate issue one could say that Lieutenant
General McInerney is related to the issue of chain of command, but I think that's a subset of the birth
certificate issue.
MJ: Is he going to be testifying as to Lieutenant Colonel Lakin's good character?
CDC: No, he is not a character witness.
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MJ: What I'm trying to do right now is just keep this subset of witnesses and go through
them.
CDC: Y es, Your Honor, so that would then be Lieutenant Colonel Willoughby.
MJ: We have how many Afghanistan duty performance witnesses?
CDC: Your Honor, at this point, for the good character witnesses, I'll defer to my colleague,
Major Kemkes.
MJ: That's fine.
DC: Your Honor, the defense has requested five character witnesses that knew Colonel Lakin
from his service in Afghanistan.
MJ: When was his service in Afghanistan?
DC: Your Honor, it was from March 2004 to May 2005.
MJ: All of these witnesses are from that same period?
DC: Yes, Your Honor.
MJ: So, that would be Lieutenant Colonel Willoughby, Mr. Mayhak, Command Sergeant
Major (Retired) Taylor, Major Kisch, and Colonel Smyrski.
DC: Yes, Your Honor.
MJ: The government has lodged a cumulativeness objection. What is the defense position
with respect to that?
DC: Your Honor, these different people all knew Lieutenant Colonel Lakin, obviously,
downrange; some ofthem knew him in a different capacity than other ones. Whether they're all
cumulative, just because they served with him together in Afghanistan, doesn't make them cumulative.
I think that whether they worked as his peer or supervisor, or as a subordinate to Lieutenant Colonel
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Lakin, for example, they'll show what we believe are important opinions of people that would be able to
have some type of opinion about Lieutenant Colonel Lakin's good duty performance.
MJ: Where are these witnesses located now?
DC: Your Honor, Lieutenant Colonel Willoughby is at the War College at Carlisle Barracks;
Chief Mayhak is at Fort Wainwright; Sergeant Major (Retired) Taylor is in Mississippi; and Colonel
Smyrski is at Schofield Barracks Major Kisch is also in Hawaii in Honolulu, at TripIer Army Medical
Center.
MJ: There are several witnesses who will testify as to good military character in Hawaii as
well?
DC: Your Honor, the defense has requested only two that worked with Lieutenant Colonel
Lakin while he was in Hawaii.
MJ: Who would those be?
DC: Doctor Jeff Lee and Colonel Fred Chesbro.
MJ: The period in Hawaii was?
DC: Doctor Lee knows Lieutenant Colonel Lakin from 2000 to 2002; and Colonel Chesbro
knows him from 2001 to 2004.
MJ: Knows him or worked with him?
DC: Lieutenant Colonel Lakin was his flight surgeon, Your Honor, so Colonel Chesbro
would've been a patient.
MJ: Who are the other "good soldier" witnesses?
DC: Your Honor, the defense has requested one "good soldier" witness that knew Lieutenant
Colonel Lakin and worked with him when they were students together at the Uniformed Services
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University Masters in Public Health and Occupational Residency, and that is Captain (Retired) David
Johanson; he's a Naval officer.
MJ: Where is he now?
DC: He is in Seattle, Washington, Your Honor.
MJ: When was this period of service?
DC: From 2005-2007, Your Honor.
MJ: Is that it for merits witnesses for a good military character defense?
DC: No, Your Honor.
The defense also requested witnesses that worked with Lieutenant Colonel Lakin while
he was at the DiLorenzo TRICARE Health Clinic, his most recent assignment prior to the charges in this
case.
MJ: Who would those be?
DC: Your Honor, the defense has requested Captain Julie Florentine, who is at Andrews Air
Force Base; Staff Sergeant Lynnel Small-Storm, who is currently still at the Pentagon; Sergeant Jackie
Hess, who is at Fort Lewis; Sergeant King, who is still at the Pentagon; and First Lieutenant Nathaniel
Stone.
All those witnesses know Lieutenant Colonel Lakin from his duty performance at the
Pentagon Health Clinic.
MJ: How are they distinct? Why are they not cumulative?
DC: Your Honor, many of these people these people all worked for Lieutenant Colonel
Lakin, so they'll have a different perspective compared to what some of the other "good soldier"
witnesses will be able to present, as far as being subordinate to him. Also, we have made sure to include
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some females, and we also have several witnesses who are African-American the defense believes that
in this case, some panel members, potentially, because of what we've seen already in the public
discussion about this case some people assume that Lieutenant Colonel Lakin is either one, trying to
avoid duty in Afghanistan; or two, a racist, because he is questioning President Obama's eligibility to
serve.
Some of those witnesses that we'd present from DiLorenzo, we intend to have them say
that Lieutenant Colonel Lakin is a good officer, a good duty performer, and obviously, they're African-
American - that also helps us to hopefully refute any assumptions that Lieutenant Colonel Lakin is a
racist.
MJ: Government, anything?
TC: Your Honor, it is apparent to the government from the proffer that all five ofthe
Afghanistan witnesses knew Lieutenant Colonel Lakin in the same capacity from when he was a flight
surgeon; as you noted, it was the same time period, and their testimony would be cumulative.
Apparently, Colonel Smyrski, I believe, is also offered as a Hawaii witness, and he'd be
someone who could testify both to Afghanistan and Hawaii.
The government is not picking and choosing who might be particularly relevant or
cumulative; we'djust ask that 15 is in excess of what is required to create a full picture of the defendant,
and in light of the long distances that many ofthe witnesses would have to travel, and the travel would
cause a delay ---­
MJ: What delay?
TC: At trial. For judicial economy, we'd ask that you pare the list down to something that's
more manageable, and also addresses all the different periods that the accused is asking for.
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1 MJ: Defense, any further argument on this issue?
2 DC: Your Honor, the defense also asks you just consider that we are trying to put together a
3 picture of Lieutenant Colonel Lakin from different time periods, people that know him from his medical
4 expertise, from his military expertise as far as being a soldier. We want people that knew him
5 downrange; we want people that know him in garrison; we want people that know him in Hawaii.
6 That's what we're trying to do.
7 With nothing further, Your Honor, those are our requested witnesses.
8 MJ: With respect to the witnesses from Afghanistan, the time period was 2004 to 2005,
9 understanding it is a deployment, and also that the timefrarne was 5 years ago, pick your best three.
10 The court will require production ofthe witnesses from Hawaii and from the War
11 College, and from DiLorenzo.
12 Moving on, the defense has requested judicial notice of a variety of documents and a
13 statement.
14 TC: Your Honor, the government has remaining objections to witnesses yet to be addressed
15 by the court, separate from the birth records, etcetera - there's two expert witness requests that we'd like
16 to bring up objections on, if you'd like to do that at this time.
17 MJ: Are you looking now at ---­
18 TC: Lieutenant General (Retired) McInerney and Ambassador Keyes.
19 MJ: Actually, it's good you stopped me; we hadn't gone into the sentencing witnesses yet.
20 The synopsis of expected testimony says that Dr. Keyes would testify as an expert in the
21 history of the United States Constitution for sentencing. Why is that relevant?
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CDC: It addresses Colonel Lakin's motives, and otherwise bears upon why Colonel Lakin acted
as he did; assuming a conviction, that would be relevant in sentencing.
MJ: I'm going to defer ruling on that particular witness at this time.
With respect to the other presentencing witnesses, Ms. Stone, Mr. Rossomondo, and Mr.
Preece, where are these witnesses located, Major Kemkes?
DC: Your Honor, they're all local.
MJ: So the government's objection is that they're cumulative for sentencing?
TC: If that was our objection, Your Honor, the government withdraws objection to those three
at this time.
CDC: Your Honor, just to be clear, it is my fault we did not list Lieutenant General McInerney
also as a presentencing witness, and we will intend to call him as such.
MJ: What is the substance of Lieutenant General McInerney's testimony?
CDC: For presentencing, it would be the same as for the merits; the point is, the testimony is set
forth in his affidavit.
MJ: I'll defer ruling on that witness as welL
TC: Your Honor, for clarification, defer ruling as to his being called as a sentencing witness,
or also as a merits witness?
MJ: All of it.
I'm deferring ruling on Ms. Hata, Dr. Pukino, Mr. Eggito, Lieutenant General
McInerney, Mr. Bennan, Mr. Scott, and Dr. Keyes.
TC: In addition, Your Honor, President Obama is the first witness requested.
MJ: And President Obama.
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Is there anything else we need to address at this point with the defense witness list?
CDC: Nothing from our side, Your Honor.
TC: Nothing from the government, Your Honor.
MJ: Turning now to the defense request for judicial notice, and the government response
thereto, those have been marked as Appellate Exhibits VII and VIII. The defense has requested that the
court take judicial notice of:
One, remarks by the President and "Address to the Nation on the Way Forward in
Afghanistan and Pakistan, December 1,2009, Eisenhower Hall Theater, United States Military
Academy at West Point, New York, available at," it gives a website;
Second, DA Pam 10-1, Preface;
DA Pam 10-1 Chain of Command Chart;
US Department of State 7 FAM 1131.6.-2;
Senate Resolution 511 (11 Olh Congress 2
nd
Session), agreed to 30 April 2008;
10 United States Code 162b;
Article II, Section 1, United States Constitution;
The statement, "Soldiers have a duty to disobey illegal orders;"
Nine, Hawaii Revised Statute 338-17.8.
The government has filed an objection thereto as Appellate Exhibit VIII primarily based
on relevance; and with respect to the statement, "Soldiers have a duty to disobey illegal orders" as
judicial notice of a principle is inappropriate.
I have the filings of the parties. Does either side desire to present oral argument with
respect to the request for judicia] notice?
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CDC: If it please the court?
MJ: Proceed.
CDC: Thank you, Your Honor.
I'd like to begin by talking about the burden of proof. The government, quite naturally,
in its opposition brief, says that the burden of proof for this motion falls upon us, based upon RCM 703.
I'm sorry, Your Honor, are we only talking about judicial notice?
MJ: Yes.
CDC: I beg your pardon; I thought we were talking about the motions I have nothing further
on judicial notice.
MJ: On judicial notice, are all of these items requested for judicial notice going to the issue of
the President's constitutional eligibility to serve?
CDC: No, Your Honor.
MJ: Which ones are not?
CDC: Number one addresses that obliquely, but number one establishes the fact that the basis
for the deployment order given to Colonel Lakin is the President's directive, as articulated in that
address.
Number two, three, four, five ---­
MJ: Which order to Lieutenant Colonel Lakin are we talking about?
CDC: The order that results in the charges ofmissing movement and disobeying the orders.
MJ: Are we looking at Specification 3 of Charge II?
CDC: Yes, Your Honor.
It would be Charge I, and Specifications 3 and 4 of Charge II.
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MJ: What of the others?
CDC: Again, two, three, four, five, they go to the birth certificate issue the eligibility issue.
Number six, 10 USC Section 1 62(b ) addresses the chain of command.
I should say, backing up, that two and three also address the chain of command. To the
extent that that addresses the eligibility issue, there may be some overlap; but two and three, as did one,
address the chain of command issue.
[Title] 10 USC Section 162(b) is the statutory wording of the chain of command.
Turning to the next, number seven, the United States Constitution sets forth the
President's task as Commander in Chief of that section, and the requirement to be a natural born citizen.
Number eight, "Soldiers have a duty to obey illegal orders" ---­
MJ: How is that appropriate for judicial notice?
CDC: It may not be essential for judicial notice, but it is a proposition that is indisputable, that
directly bears upon issues ---­
MJ: That's a legal conclusion, is it not?
CDC: It is a point oflaw that the court could address by instruction to the jury. It is perhaps a
legal conclusion; it is also a fact that is established by testimony, as well as by judicial decision. I think
it is an indisputable fact.
My reading of the government submissions on this, or their objections, is that it is an
incomplete statement. I'm prepared to argue it is a fully complete and accurate statement.
MJ: Please do.
CDC: Department ofthe Army Field Manual 6-22, Army Leadership, Section 12-74, published
12 October 2006, and I quote, "Under normal circumstances, a leader executes a superior leader's
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decision with energy and enthusiasm. The only exception would be illegal orders, which a leader has a
duty to disobey."
The New case, for example - United States v. Michael New, which the government
cites, says as much. If you'll give me a moment, I'll give you the exact wording, but it says that soldiers
have a duty to disobey illegal orders.
MJ: Does it define illegal orders?
CDC: No, it does not, and neither did the section I just gave you. The issue as to whether the
orders are illegal is a different question. But as far as it goes, it is indisputable that a soldier, if an order
is, in fact, illegal, it must be disobeyed.
Lieutenant Calley was convicted for obeying an illegal order, and the court analyzed why
he should've known it to be illegal. But the Calley case stands for the proposition that a soldier must
disobey orders that are, in fact, illegal. Whether he can be convicted ifhe didn't know, or shouldn't
have known it was illegal, is a different question for a different case. With this case, if the order is given
to Colonel Lakin were illegal, it must be disobeyed. That's the proposition that we think can properly be
taken as judicial notice.
MJ: What about number nine?
CDC: That strictly goes to the birth certificate issue.
MJ: Government?
TC: Your Honor, first and foremost, the government did not object to taking judicial notice of
DA Pam 10-1, either ofthe enclosures relevant to DA Pam 10-1, or Article II of the Constitution, and 10
USC 162(b) - Enclosure 6.
MJ: So the government has no objections to 2,3,6 and 7?
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1 TC: Excuse me, no, 2, 3 and 6.
2 MJ: I have your briefs. Does the government desire oral argument with respect to this
3 motion?
4 TC: Briefly, in light of what the defense just raised, Your Honor.
S The defense highlighted exactly the properly mechanism to put principles oflaw that are
6 fairly raised by the facts before the panel that is through instructions. It is not proper to pick what may
7 or may not be raised by the facts; the government believes there's no facts in this case that will raise the
8 defense of illegality of the order, based on the definition in New, as cited in the Calley case - manifestly
9 illegal, requiring somebody to commit a crime that anybody would agree is a crime. There are no facts
10 in support of that in this case.
11 The facts at issue are the three orders that the accused received, his missing movement
12 and his dereliction in failing to comply with his TCS; all of those were legal on their face, and presumed
13 to be lawful.
14 So, to the extent that to put that principle that it won't be raised by the facts in front of the
lS panel, judicial notice is not appropriate. What would be appropriate, in event that any proper defenses
16 or anything is raised that requires instruction to the panel, based on a specific case precedent, or any
17 other legal document, that that happens at the end, and the government has an opportunity to raise
18 objections and discuss it at that time.
19 MJ: Does either side believe that I need to take judicial notice of any of these nine proffers, if
20 you will, to consider the issues I need to consider today? That if there's any objection to me considering
21 any of these nine for my purposes of considering the witness and evidence production issues today?
22 TC: Y es, Your Honor.
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1 In addition to the lawfulness issue, the government argues that all of the other requests,
2 separate from the ones we already conceded, do not bear to adjudicative facts in the case, and therefore
3 are not 401 relevant, and are not properly the providence of Rule 201.
4 MJ: You're objecting to my considering those, and my determination on whether the
5 witnesses and evidence should be produced in this case?
6 TC: That's the confusion, Your Honor, to be clear. For motions practice, to the extent that
7 there's a question of lawfulness to be addressed by this court, evidence is offered and my
8 understanding, counsel clarified - that there are certain documents attached to their motions. But to take
9 judicial notice going forward that might be relevant to the merits, the government objects: So clearly,
10 not for your consideration in motions practice.
11 MJ: I do not, for the record, need to take judicial notice of any of these nine, to consider them
12 in my motions practice, and I will do that.
13 With respect to judicial notice itself, I'm taking that under advisement, and I will issue
14 my ruling in due course today.
15 Next, we have the defense request for a deposition and subpoena, and the government
16 objection thereto those are Appellate Exhibits IX and X.
17 The defense, in Appellate Exhibit IX, has requested that I order an oral deposition to be
18 taken from the custodian ofrecords of Hawaii Department of Health, and that a subpoena issued for the
19 same, because the witness will not otherwise testify, commanding the deponent produce all records in
20 the Department's possession, custody or control evidencing the birth of President Obama.
21 The government has filed Appellate Exhibit X in opposition to that.
22 Mr. Jensen, I'm a little confused. Do you want a deposition, a subpoena, or both?
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CDC: I think the deposition can only be obtained by means of a subpoena, so both. The records
the witness will not testify absent a subpoena, an order from the court compelling the attendance of the
witness. The records are what we seek.
MJ: Is there any indication from the defense that if properly subpoenaed, this custodian would
not come forward?
CDC: The custodian in Hawaii is, our understanding, unwilling to physically come to court,
yes, but is not unwilling to obey a subpoena directed at simple records production. This is why we
propose a deposition.
MJ: Why do you need a deposition, if you can get a subpoena for records production?
CDC: We may not as a precaution, to insure that the records, and all of the records have, in
fact, been produced. There's some confusion, at least in my mind, as to whether the records were
destroyed, or are, for some reason, are unavailable.
MJ: What evidence do you have supporting that?
CDC: We have reports in the press that original records are no longer, from this timeframe, in
possession of the State of Hawaii, whether they were destroyed or otherwise. We are also told that
they've been microfilmed. In the event that there's nothing produced relating to the document created at
the time - a contemporaneous document - we'd inquire of the witness if they were microfilmed, or if
they've been archived in such a way that it could possibly be retrieved, if there's somebody else that has
the records, something like this. That would be the limit of the questions that I would ask at a
deposition.
MJ: Government?
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1 TC: Your Honor, to the extent that the relevance of this witness at a deposition or trial bears
2 on this, the government offers the same objection to all other witnesses for whom you've deferred
3 ruling. Specific to this case, there is, no 702 exceptional circumstances as offered by the defense, and
4 there's no facts before the court that indicate why this exceptionally - this evidence is institutional, it is
5 clearly available. As you noted, ifthere were some relevance to it we're bringing witnesses from
6 Washington and Hawaii already for the defense; clearly, ifthe court wanted to procure this evidence,
7 this witness is willing, and we don't see any need to depose any witnesses. We don't believe they've
8 met their burden under Rule 702 - not to concede the relevance, but purely as a question of whether it'd
9 be rclevant.
10 MJ: Based on the proffer so far, the evidence before the court that if properly subpoenaed, this
11 custodian would not appear to testify or produce the records - that a request for deposition is denied. I
12 will take under advisement the request for a subpoena.
13 Finally, we have the motion to compel or for other appropriate relief, and the
14 government's opposition thereto, and the affidavit of Licutenant General Thomas G. McInerney, US Air
15 Force (Retired) in support of the defense request for discovery-motion to compel.
16 The motion to compel, or for other appropriate relief, is marked as Appellate Exhibit XI,
17 and the affidavit of Lieutenant General Thomas G. McInerney, US Air Force (Retired) in support is
18 attached to Appellate Exhibit XI; the government opposition to that motion to compel is Appellate
19 Exhibit XII.
20 In the motion to compel, the defense requests that I order production, by subpoena, of all
21 writings of all writings ofPunahou School, not limited to documents on paper, and any information
22 stored on any electronic or photographic medium evidencing or constituting any application for
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1 admission of Barack Hussein Obama II, also known as Barry Soetoro, under either of those or any other
2 name; the same for financial aid applications.
3 The defense has also requested subpoena ofrecords of the Hawaii State Department of
4 Health's Office of Health Status Monitoring pertaining to the birth of Barack Hussein Obama II;
5 All writings of Occidental College evidencing an application for admission or financial
6 aid of Barack Hussein Obama II; and the same records from Columbia University and Harvard
7 University.
8 1 have the brief filed by the defense, and I have the affidavit of Lieutenant General
9 McInerney. Does the defense desire oral argument with respect to this motion to compel?
10 CDC: If it please the court?
11 MJ: Proceed.
12 CDC: Thank you.
13 I apologize for the false start a moment ago.
14 Where I'd like to begin, as I said then, with the burden of proof. The government has,
15 quite understandably, said that the defense bears the burden of proof as the moving party. This is
16 consistent with motions practice, and consistent with the Rule which they've cited, RCM 905(c),
17 "Burden of Proof: (1) Standard-Unless otherwise provided in this Manual, the burden of proof on any
18 factual issue, the resolution of which is necessary to decide a motion will be by a preponderance of the
19 evidence." It doesn't say that the moving party has the burden, but we think that's implied. Certainly,
20 that's what I'm here to argue.
21 At the end of our motion, we discuss this issue in the context ofUCMJ Article 46.
22 UCMJ Article 46 is not being followed by this process. The government, pursuant to regulations issued
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by the President as Commander in Chief, turned the burden on its head. Article 46 says, as we cited in
our motion, that there'll be a level playing field - that the government, the prosecution, and the defense,
have the exact same, identical, from a substantive point of view, access to records, as established by the
practice in the federal criminal courts.
MJ: How does the practice in the federal criminal courts have any bearing on practice in
courts-martial?
CDC: Article 46 makes it.
MJ: How?
CDC: Specifically ---­
MJ: Speaking of which, counsel for the government, I don't see a Manual up here at the
judge's bench. May I have a Manual, please?
CDC: We have an extra one we can share.
ATC2: [Provides a copy of the Manual to the court.]
MJ: Proceed.
CDC: Thank you, Your Honor.
Article 46 - "The trial counsel, the defense counsel and the court-martial shall have equal
opportunity to obtain witnesses and other evidence, in accordance with such regulations as the President
may prescribe. Process issued in court-martial cases to compel witnesses to appear and testify, and to
compel the production of other evidence, shall be similar to that which courts of the United States
having criminal jurisdiction may lawfully issue, and shall apply in any part of the United States or the
Commonwealths and possessions."
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1 Your Honor, those federal criminal courts provide that the clerk of the court shall issue a
2 subpoena for the asking to either side; one simply walks up to the clerk's office and is handed a
3 subpoena in blank, you fill it out. That's not the procedure pursuant to regulations the President has
4 established. Those regulations violate the second sentence in Article 46.
5 More to the point, by compelling us then to bring a motion, the government shifts the
6 burden to us; in the federal criminal practice, the burden is on the objector to the evidence, not on the
7 proponent of the evidence, or that party seeking the evidence. If the defense in federal district court
8 seeks evidence that either the person in possession of that evidence, or the prosecution feels to be
9 irrelevant, then it is their burden to come to court, their burden of proof that the evidence is irrelevant or
10 immaterial.
11 Now, because ofthis backwards approach to it, in contradiction to Article 46, the burden
12 shifts to us. That's wrong. That violates the statute. The courts that have addressed this have
13 recognized the importance of this issue. But we submit ---­
14 MJ: What courts would that be?
15 CDC: Let me just say that they haven't addressed it directly, and we do think that this is a
16 matter of first impression, as such. But what has been said for instance, in United States v. Davidson,
17 Army Court of Military Review, 1977,4 Military Justice 702, that the Sixth Amendment of the
18 Constitution concerning compUlsory process for obtaining witnesses, is what Article 46 protects.
19 In other words, what that case stands for is that if Colonel Lakin's constitutional rights
20 under the Sixth Amendment are protected by Article 46 concerning compulsory process for obtaining
21 witnesses.
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In United States v. Strombaugh, Court of Military Appeals 1994,40 MJ 208, the court
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Finally, in United States v. Rhode, Air Force Court of Military Review 1982, 14 MJ
919, says that the rights of an accused to compel a witness who it is believed may offer proof to negate
the government's defense, or support a defense, is constitutionally and statutorily protected.
At the outset, our argument is that all that needs to be establish that we believe that the
records sought may be relevant; not that they are, but that we believe they may be relevant.
Our defense in this case, Your Honor, is that the orders are illegal. We believe that these
records will show that. We believe that these ---­
MJ: Are you conceding that they are not relevant and necessary, as required in Rule for Court­
Martia1703?
CDC: I'm sorry, you said ---­
MJ : You said that they may be relevant and necessary; are you conceding that they are not
definitely relevant and necessary?
CDC: Our submission - no, Your Honor - our submission is that they are relevant; our
submission is that they are material. Under the case I just cited, that is our belief. Without having the
records, I can't tell you that I know what's in the records, but I believe that they are in the records, that
that is what that case I just cited stands for what must be established - our belief that they are relevant.
The ultimate issue of admission at trial is not the same standard as at discovery. Clearly,
it is beyond dispute that to be admitted at trial, it must be relevant. But at the discovery stage, we must
have a belief that is reasonable and legitimate that these records are relevant. Such is a belief of some
40 percent of the American people that don't have a conviction that the President is a natural born
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1 citizen. It is a reasonable belief that these records particular! y the birth certificate records in the
2 custody ofthe State of Hawaii will directly prove that.
3 If I could say one more thing on this point - is there anyone in this courtroom that doubts
4 that if those records are produced and prove that the President was born in Honolulu that the government
5 would not say those are relevant, and the government would not say that that establishes that Colonel
6 Lakin is guilty?
7 MJ: I guess I'll hear from the government.
8 CDC: Thank you, Your Honor.
9 MJ: Government?
10 TC: Your Honor, first of all, Article 46 acknowledges the responsibility which is codified in
11 Rule 703, and as other rules the President has established, and that directs us to the rules governing
12 discovery, as you know, that they have to be relevant. To suggest that there is an Article 46 requirement
13 to produce a witness, regardless ofrelevance, is just not the case.
14 The government's position is that the defense has asked for witnesses and evidence
15 specific to this motion evidence that is completely irrelevant. Under no operative legal theory could any
16 factual evidence that they believe or don't believe is in the possession of these custodians would be
17 relevant to this case.
18 This case is about the accused's failure to obey three orders from three immediate
19 superior officers, his missing movement, and his dereliction of duty. To the extent that this begins to get
20 at the lawfulness argument, the government will hold off, on the court's direction.
21 MJ: Why does the government believe these would not be relevant as establishing as source
22 of authority for those three officers to issue orders?
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1 TC: Based on a series of independently valid legal bases, these orders are lawful, by clear
2 case law, regardless of the factual predicates that they'd try to establish by anybody in the higher chain
3 of command.
4 First and foremost, United States v. New makes it very clear that they're presumed to be
5 lawful on their face. The elements and the discussion in the MCM discuss - no one is suggesting that
6 these documents are going to overturn some sort of evidence that calls into question the rank, military
7 authority or command of any of the three actual order issuing officers in this case.
8 Neither President Obama, nor any other senior officer, gave any order in this case.
9 Secondly, even if the court were to entertain the possibility that the status of somebody higher than the
10 issuing officers in this case were relevant, AR 600-20 and case law makes it very clear that command
11 authority remains in the subordinates, to the extent that it cannot be interfered with by, and does not
12 depend on, some sort of constant rule of some higher authority. The very doctrine of unlawful
13 command influence recognizes that subordinate commanders are empowered; two portions of command
14 are authority and responsibility.
15 So, irrespective of whatever was the situation above the issuing officers, those orders
16 were lawful, a lawful exercise under AR 600-20.
17 Once again, not to fully argue the lawfulness issue, but separate and apart from that, the
18 de facto officer doctrine clearly holds that if an officer is acting under the color of authority, regardless
19 of whether some questions about the legitimacy of that authority, acts under color of that authority, they
20 are presumed to be lawful. No one is arguing that these three commanders were not clearly acting under
21 the color of the authority that they'd assumed when they took command and issued orders that were, on
22 their face, clearly lawful, and had a valid military purpose.
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1 The illegality questions conflating the difference between authority of a given order and
2 the illegality - "Come to my office" has nothing to do with committing any manifest crime that is so
3 clearly illegal as to require somebody to disobey it. This is not a legality issue; this is an issue of what
4 facts are relevant to demonstrate that the issuing authorities had the proper authority to issue orders that
5 the accused had to follow. They had it inherent in themselves; they had it inherent in themselves based
6 on Army regulation and statute. Even if there were some defect higher, it is completely irrelevant,
7 because the de facto officer doctrine ratifies action.
8 So, under no operative legal theory could any of the facts that the defense might
9 reasonably believe be held in the possession of these parties or documents be relevant in this case.
10 M]: Defense, I'm a little confused on one issue. I understand the theory - correct me if I'm
11 mistaken here - that the theory that you are positing to the court is that there is a chain of command; that
12 these three officers gave orders that were in furtherance of a larger presidential directive, the one that
13 you want me to take judicial notice ofthat the President outlined at West Point, the 30,000 additional
14 Afghan troops that orders in furtherance of that objective, if the President is not qualified under the
15 Constitution to be the President, under a trickle-down theory that orders in furtherance of that are illegal,
16 and service members have no duty to obey.
17 Is that correct?
18 CDC: That is correct, Your Honor. Let me ---­
19 M]: Before we get there, there's been some language in some of the attachments here that
20 appears to suggest that it is the defense position that if Mr. Obama was found, at some point, to qualified
21 under the Constitution to serve as president, that any military order would be illegal.
22 Is that the defense position?
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1 CDC: Yes, it is, and these are two separate positions.
2 What we have here, as the Captain quite correctly pointed out, more than one order at
3 Issue. The order as to the deployment is one prong that must be analyzed; the order to report to Colonel
4 Roberts' office is a second.
5 With respect to that, the order to report to Colonel Roberts' office, that is our submission
6 that all orders are illegal.
7 With respect to the ---­
8 MJ: All orders given since when?
9 CDC: Since President Obama's assumption of office.
10 MJ: That would be the 20
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of January 2009, ifI'm not mistaken?
11 CDC: The 20
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or 21 st.
12 So, that's the answer to the first question; that argument that we advanced as to only the
13 charges addressing the orders to report to Colonel Roberts' office. I want to draw the clear distinction
14 that with respect to the orders to deploy or to move that we don't need to make that argument, because
15 those orders are executed, as the court has pointed out, by virtue of the West Point announcement ofthe
16 President's decision.
17 I'd like to say one more thing on this relevance issue. Even if the court would adopt what
18 we don't, for a moment, adopt that is, the government's argument that they're not relevant as to the
19 first phase of the trial- they are directly relevant as to sentencing.
20 MJ: How?
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1 CDC: The "good soldier" defense that you will hear in this case will tell you that Colonel Lakin
2 is an exemplary officer. He is an obedient and respectful officer. The only reason for his actions were
3 his conviction that the orders were illegaL
4 If found guilty, the truth of that conviction will be powerful evidence as to sentencing. If
S those orders were illegal, and he is nevertheless to be sentenced for disobeying them, then it is most
6 eloquent mitigation that the orders were illegal, because the President is ineligible to give them; and as
7 General McInerney points out, all military authority descends, or has its origin, in the President.
8 Indeed, the sketches that we're looking at, and the regulations we're looking at, all talk
9 about the President. The subpoenas we are asking Your Honor to issue begin by saying, "You are
10 commanded by the President ofthe United States."
11 Article 36 ofthe UCMJ says that the President may prescribe rules pursuant to the other
12 articles, such as Article 46. The rules that the President promulgates by virtue of his office ---­
13 MJ: By virtue ofthe statutory authority from Congress under Article 36?
14 CDC: Indeed - are illegal if the President cannot lawfully promulgate them. Does this
lS presuppose a crisis of constitutional proportions of unprecedented nature? Yes. And General
16 McInerney, in his affidavit, acknowledges the gravity of what we are urging. But as someone says, "Let
17 justice be done, though the heavens fall," Your Honor, ifthe President is ineligible, we need to know
18 that. You need to know that. Colonel Lakin needs to know that. The government needs to know that.
19 The American people need to know that. There is one and only one way to do that, and that is for Your
20 Honor to grant this motion.
21 MJ: Is it the defense's position that Congress can't do that?
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CDC: Yes. Congress has no constitutional authority to - or put differently, there is nothing in
the Constitution that gives the Congress the power to question the President's eligibility. It isn't there.
The draftsmen of the Constitution, our Founding Fathers, say the President must be eligible, but sets up
no mechanism for ascertaining that.
But ifhe is ineligible, he is ineligible. Period. End of discussion.
Think back to the inauguration on January 20
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• The President took the oath, and the
Chief Justice misspoke in giving him the oath. And if that misspeaking was of such a consequence, a
few hours later, in a private session, the Chief Justice readministered the oath correctly to the President.
Why does that matter? Why does it matter? Everybody knows his intention. It was a clerical error, or
an inadvertent error of no real significance, some would say. It was a very significant error. The
Constitution prescribes that the President must take an oath consisting of particular words; when he
didn't, he wasn't the President yet. That's why it was important for the Chief Justice to readminister the
oath correctly several hours later.
By the same token, it is important whether the President lawfully exercises his office. It
is of lesser importance, but also important, that every soldier in the Army lawfully exercise his or her
authority.
But we are here to talk about only one official, and that is the Commander in Chief, by
whose direction Colonel Lakin has been ordered to deploy, to move to Fort Campbell, and then forward
to Afghanistan. If there is a break in the chain of command because the President cannot issue an order,
and 40 percent of the American people have doubts as to whether he can lawfully issue that order, how
many in the Army, right now, have those doubts?
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To carry forward the analogy that General McInerney makes, supposing a crisis were to
develop this afternoon, and the order to deploy troops into combat, or to deploy nuclear forces, was
authorized, and someone in the chain of command doubts whether that order is legitimate. Grievous
circumstances could result. That's why General McInerney says, and we agree, it is important to the
Anny, to good order and discipline, that everyone knows whether their president lawfully exercises his
office. The intrusion to his privacy is nonexistent, or at most, so trivial as to be unworthy of comment.
The government hasn't even urged that this is intrusive. Indeed, these record only show whether or not
the President is lawfully in office. Nothing more. Especially the birth records in Hawaii.
Your Honor, the transcendental importance of this cannot be understated. "Ifhe is
ineligible under the Constitution in that office, that creates a break in the chain of command of such
magnitude that its significance can scarcely be imagined." If a retired three-star general thinks that way,
Y our Honor, I dare say it is worth this court issuing a subpoena. If necessary, the court could seal the
records, if the court is concerned about publicity or private matters being released. But this court needs
to know whether Colonel Lakin's orders were legal. The government has no case that stands for their
proposition that a break in the chain of command doesn't make the orders illegal they have no case. It
has never come up before, that's why they have no case. But they say that the de factor officer doctrine
makes it irrelevant, and that the cases they cite stand for that proposition. No, they don't. They cite the
Ryder case; if anything, the Rvder case stands for the opposite proposition, where Chief Justice
Rehnquist, speaking for a unanimous Court, said the de facto officer doctrine did not apply.
MJ: That case involved a judge, didn't it?
CDC: It did, but it is the one they cite. Clearly, whether the de facto officer doctrine survives
that decision, but whether or not you answer that question, that case certainly does not stand for the
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1 proposition the government has advanced, that the de facto officer doctrine does apply, and applies here.
2 But that puts the cart before the horse; that puts the determination of legality or illegality ahead of
3 discovery.
4 We have the government's motion to deal with in the future in that case. For now, the
5 issue is discovery. As I said, these records are directly relevant to sentencing, and we submit directly
6 relevant on the merits. But we believe that these records will show that the orders are illegal, and by
7 virtue of the case I cited, that's all for discovery that we need to show.
8 The ease by which these records will be produced needs to be addressed. Institutions,
9 whether they be a state or a large college, are generally understood to receive such records requests on a
10 continuing basis, that's why they have offices set up to produce records. In the normal course of
11 business, in response to a subpoena, the records will be produced, without inconvenience to anyone.
12 In the face of that ease of production, ease of obtaining the records with a subpoena, but
13 only with a subpoena, it boggles the mind that before we address the issue oflegality, the government
14 says, 'Don't have the records.' I don't understand why they don't want the records.
15 But the long and the short of it is, Your Honor ---­
16 MJ: So, the defense's argument that you're telling me is if it is easy to get the records, there
17 should be a distinction in the relevance and necessity determination than if it is hard to get the records?
18 CDC: It should have some bearing on your analysis, because the - we're not talking about a
19 financial difficulty or an imposition on the witness; we're talking about something that's very
20 convenient and easy to address, and therefore, what should the standard be, we submit, when it is so
21 easy, and the court can later determine the admissibility of the records, the court should bend over
22 backwards and err, if at all, on the side of providing a defendant facing imprisonment the opportunity to
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discover information that would prove him innocent, or at least not guilty, if they show what we believe
they will show.
If the court errs, and permits the discovery, what is the loss? What is the loss? What is
the harm to anyone?
Your Honor, for that reason, we answer your question in the affirmative, and Your Honor
should grant this motion.
MJ: Is there anything else from either side on the defense motion to compel?
TC: [After conferring with ATC/ATC2.J To the extent that this implicates the motions
hearing going forward, Your Honor, the government has no further objection; we stand on our motion
response and on the fully briefed and replied to lawfulness motion.
MJ: Is there anything else we need to address at this time? I'm going to recess the court and
reconvene, and I'll have oral and written findings with respect to these issues.
Is there anything else we need to address before I recess the court?
CDC: No, Your Honor.
MJ: Why don't we stand to reconvene the court at 1400, or 2 o'clock.
The court is in recess.
[The session recessed at 1221,2 September 201O.J
[The session was called to order at 1404, 2 September 201O.J
MJ: This Article 39(a) session is called to order.
Let the record reflect that all parties present when the court last recessed are again present
in court.
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1 I have reached findings of fact and conclusions of law with respect to the witness and
2 evidence production issues in this case.
3 Before I proceed, for purposes of ruling on this motion, the court intends to take judicial
4 notice of the following adjudicative facts under Military Rule of Evidence 201:
5 President Barack Obama is the 44th President of the United States; he was elected on
6 November 4,2008, and inaugurated on 20 January 2009. He has served as President and Commander in
7 Chief since 20 January 2009, and continues to serve in that capacity.
8 Does either side have any objection to that judicial notice?
9 CDC: No, Your Honor.
10 TC: No, ma'am.
11 MJ: I will announce my findings orally on the record, and will mark them as the next
12 appellate exhibit in line [AE XV].
13 The defense has moved to compel the production of the following documents, both for
14 this court's interlocutory determination of the lawfulness of the orders in Specifications 1-3 of Charge II,
15 and for the merits and sentencing portions ofthe trial:
16 One, writings ofPunahou School, Occidental College, Columbia University and Harvard
17 University regarding applications for admission and financial aid of Barack Hussein Obama II/Barry
18 Soetoro; and
19 Two, records in possession ofHawaii State Department of Health's Office of Health
20 Status Monitoring pertaining to the birth of Barrack Hussein Obama II.
21 The defense further requests the production of Ms. Betty Hata, Dr. Chiyome Fukino, Mr.
22 Jeffrey Scott and Mr. Doug Bergman, as custodian ofrecords for the above documents, Lieutenant
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General (Retired) Thomas G. McInerney to testify consistent with his affidavit regarding the military
chain of command, and Dr. Alan Keyes for sentencing to testify about the history of the United States
Constitution.
In separate filings, the defense requests the court order an oral deposition be taken of the
Custodian of Records of the Hawaii Department of Health about department records concerning the
birth of Barack Obama II. The defense also requests the court take judicial notice of:
One, Remarks by the President in "Address to the Nation on the Way Forward in
Afghanistan and Pakistan," 1 December 2009, Eisenhower Hall Theater, United States Military
Academy at West Point, New York;
D A Pam 10-1 preface and chain of command chart;
US Department of State, 7 F AM 1131.6-2;
Senate Resolution 511 (110
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10 United States Code Section 162(b);
Article II, Section 1, United States Constitution;
The words, "Soldiers have a duty to disobey illegal orders;" and
Hawaii Revised Statute Section 338-17.8.
At oral argument, the defense urges the court to find that Rule for Court-Martial 703(c)
violates Article 46 of the Uniform Code of Military Justice; rather than follow the Rule, this court
should allow the defense to subpoena witnesses and evidence the defense believes may be relevant to
their case.
Having received the briefs and supporting evidence filed by the parties, and having heard
oral argument, the court finds and rules as follows.
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Procedures governing production of witnesses and evidence in courts-martial:
One, Article 46, Uniform Code of Military Justice provides that the trial counsel, the
defense counsel and the court-martial shall have equal opportunity to obtain evidence in accordance with
such regulations as the President may prescribe. Article 46 also states, in pertinent part, the process to
compel witnesses and evidence shall be similar to that which the courts of the United States having
criminal jurisdiction may lawfully issue;
Two, the President has prescribed Rule for Court-Martial 703 to govern production of
witnesses and evidence. Under Rule for Court-Martial 703(b)(1) and (t), each party is entitled to the
production of any evidence which is relevant and necessary, or any witness whose testimony on the
merits, or on an interlocutory question, would be relevant and necessary. Rule for Court-Martial 703,
which authorizes the trial counsel to obtain witnesses and evidence he/she considers relevant and
necessary for the prosecution, but requires the defense to submit to the government a list of witnesses
the defense submits are relevant and necessary. If the government contends that production is not
required, the matter may be submitted to the military judge for decision;
Three, Military Rule of Evidence 401 defines relevant evidence; "relevant evidence"
means any evidence having any tendency to make the existence of any fact that is evidence of consequence
to the determination ofthe action more or less probable than it would be without the evidence;
Four, Military Rule of Evidence 402 provides that all relevant is admissible, except as
provided by the Constitution of the United States, as applied to the members ofthe armed forces, the
Code, these rules, this Manual, or any Act of Congress applicable to members of the armed forces.
Evidence which is not relevant is not admissible;
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Five, relevant evidence is necessary when it is not cumulative, and when it would
contribute to a party's presentation of the case in some positive way in matter at issue. A matter is not at
issue when it is stipulated as fact (Discussion to Rule for Court-Martial 703 (b) (1 ));
Six, Military Rule of Evidence 403 provides that relevant evidence may be excluded ifits
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading of the members, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence;
Seven, Rule for Court-Martial 703(c)(2) and (f)(3) govern production of witnesses and
evidence for the defense. For interlocutory questions or the merits, these rules require the defense to
submit to the trial counsel a list of witnesses and evidence the defense considers relevant and necessary
on the merits or on an interlocutory question. For witnesses, the defense submission shall include the
name, telephone number, ifknown, and address or location of the witness, such that the witness can be
found in the exercise of due diligence, and a synopsis of the expected testimony sufficient to show its
relevance and necessity. For evidence, the defense must list the items of evidence to be produced, and
include a description of each item sufficient to show its relevance and necessity, a statement of where it
can be obtained, and, ifknown, the name, address and telephone number of the custodian of the
evidence. For sentencing witnesses, the defense must include a synopsis of the testimony that is
expected the witness will give and the reasons why the witness' personal appearance will be necessary
under the rules set forth in Rule for Court-Martial 1001(e). The synopsis of witnesses must include the
subjects to be addressed and what the witness is expected to say about those subjects. United States v.
Rockwood, 52 MJ 98, 105, Court of Appeals for the Armed Forces, 1999.
Findings of Fact: Production of Defense-Requested Witnesses and Evidence in this case­
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One, the accused is charged with missing movement by design, three specifications of
failure to obey lawful orders, and willful dereliction of duty. The question presented is whether the
evidence is relevant and necessary to either: One, the interlocutory question of whether the orders in
Specifications 1-3 of Charge II are lawful; two, the merits portion of the trial as evidence of a fact of
consequence to an element of a charge, or to a legal defense to a charge; or, three, sentencing as
evidence in aggravation, extenuation or mitigation. In sentencing, the defense may present matters in
mitigation of an offense to lessen the punishment to be adjudged by the court-martial or to furnish
grounds for a recommendation of clemency. Such evidence includes particular acts of good conduct or
bravery, evidence of the reputation or record of the accused in the service for efficiency, fidelity,
subordination, temperance, courage, or any other trait that is desirable in a service member. Rule for
Court-Martiall001(c)(1)(B). The defense may also present matters in rebuttal ofmatters presented by
the prosecution. Rule for Court-Martial 1001 (c)(1).
Two, the defense asserts that these records and witnesses are relevant and necessary for
this court's interlocutory determination on the lawfulness ofthe orders at issue in Specifications 1-3 of
Charge II, and on the merits because the primary defense - or at least partial defense to the charges in
this case is that the orders at issue in Specifications 1-3 of Charge II were unlawful. The defense asserts
that the President, as the Commander in Chief, is the source of all military authority. If the President is
not a natural born citizen, he is ineligible under the United States Constitution to serve in office, then,
axiomatically, no order given by him is valid. Thus, ifthe President's 1 December 2009 decision to
increase troops strength in Afghanistan by 30,000 troops was illegal, then it can only but follow that the
orders issued by the chain of command pursuant thereto are illegal. The defense further contends that
this evidence is relevant for sentencing.
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Three, the government responds that the evidence the defense seeks to compel is not
relevant and necessary on the interlocutory question of the legality of the orders at issue in
Specifications 1-3 of Charge II because neither the authority of the officers issuing the orders in
Specifications 1-3 of Charge II Lieutenant Colonel William Judd, Colonel Gordon Roberts, and
Colonel Peter M. McHugh -- nor Lieutenant Colonel Lakin's duty to obey those orders depends on
whether the President is eligible under the Constitution to serve as President and Commander in Chief.
Instead, Title 10 United States Code Section 3013(b) vests the Secretary of the Anny with the
responsibility and authority to conduct all affairs of the Department of the Anny including mobilizing
and maintaining the Anny. The government further asserts that, assuming arguendo without conceding
the point, even if President Obama is not eligible to hold office, the de facto officer doctrine, recognized
by the Supreme Court in Ryder vs. United States, 515 US 177, 1995, dictates that actions taken by
President Obama under color of office are valid. Lieutenant Colonel Lakin is duty bound to follow the
lawful orders of his superiors, even if the eligibility of the President under the Constitution is later found
deficient. Finally, the Government argues that the motion to compel should be denied, as the probative
evidence ofthe President's birthplace is substantially outweighed by the danger of confusing the issues
and misleading the members, and will cause undue delay and waste of time under Military Rule of
Evidence 403.
Four, for purposes of ruling on this motion, the court takes judicial notice of the
following adjudicative facts under Military Rule of Evidence 201: President Barrack Obama is the 44th
President of the United States. He was elected on November 4 2008, and inaugurated on 20 January
2009. He has served as President and Commander in Chief since 20 January 2009, and continues to
serve in that capacity.
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1 Five, the elements of the offenses charged are as follows
2 Charge I, missing movement, in violation of Article 87, Uniform Code of Military
3 Justice:
4 One, Lieutenant Colonel Lakin was required in the course of duty to move with US
5 Airways Flight Number 1123, departing from Baltimore-Washington International Airport, arriving in
6 Charlotte, North Carolina, in order to deploy for a temporary change of station in support of Operational
7 Enduring Freedom with the 32
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8 Campbell, Kentucky;
9 Two, Lieutenant Colonel Lakin knew of the prospective movement ofthe aircraft;
10 Three, that, at or near Arlington, Virginia, on or about 12 April 2010, Lieutenant Colonel
11 Lakin missed the movement ofthe aircraft; and
12 Four, Lieutenant Colonel Lakin missed the movement through design.
13 Charge II, Specifications 1-3, failure to obey a lawful order, in violation of Article 92,
14 Uniform Code of Military Justice­
15 Element one, that a member of the armed forces, namely - for Specification 1, Lieutenant
16 Colonel William Judd, issued a certain lawful order to report to the office of Lieutenant Colonel Lakin's
17 brigade Commander, Colonel Gordon R. Roberts, at 1345 hours, or words to that effect; Specification 2
18 Colonel Gordon R. Roberts issued a certain lawful order, to wit: a memorandum signed by Colonel
19 Roberts dated 31 March 2010, requiring the accused to report to the office of the Medical Center
20 Brigade Commander at 1700 on 31 March 2010; Specification 3, that Colonel Peter M. McHugh issued
21 a certain lawful order, to wit: Temporary Change of Station Orders 099-17, dated 9 April 201 0, issued
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1 by Colonel McHugh, requiring the accused to report to Fort Campbell, Kentucky, not later than 1500
2 hours on 12 April 2010;
3 Element two, common to all three specifications, that Lieutenant Colonel Lakin had
4 knowledge of the order;
5 Element three, common to all three specifications, that Lieutenant Colonel Lakin had a
6 duty to obey the order;
7 Element four, common to Specifications 1 and 2, that at or near 31 March 2010,
8 Lieutenant Colonel Lakin failed to obey the order; Specification 3, element four, that at or near
9 Washington, DC, on or about 12 April 2010, Lieutenant Colonel Lakin failed to obey the order.
10 Charge III, dereliction of duty in violation ofArticle 92, elements:
11 One, Lieutenant Colonel Lakin had a certain prescribed duty, that is: to report to Fort
12 Campbell, Kentucky in accordance with Temporary Change of Station orders 099-17, dated 9 April
13 2010;
14 Two, that Lieutenant Colonel Lakin actually knew or should have known of the assigned
15 duty.
16 Six, when a service member is charged with violating a lawful order, as is the case here
17 with Specification 1-3 of Charge II, the legality of the order is an issue oflaw for the military judge to
18 decide as an interlocutory question. The issue oflawfulness of an order is not an element to be decided
19 by the court-martial members. United States v. Deicher, 61 MJ 313, Court of Appeals for the Armed
20 Forces, 2005, citing United States v. New, 55 MJ 95 and 105, Court of Appeals for the Armed Forces,
21 2001. An order is presumed to be lawful and the accused bears the burden ofrebutting the presumption.
22 The essential attributes of a lawful order include:
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1 One, issuance by a competent authority, a person authorized by applicable law to give
2 such an order;
3 Two, communication ofwords that express a specific mandate to do or not do a specific
4 act; and
5 Three, relationship ofthe mandate to a military duty.
6 The accused may also challenge an order on the grounds that it would require the
7 recipient to perform an illegal act, or that it conflicts with that person's statutory or constitutional rights.
8 Deicher at 317.
9 The officer issuing the order must have authority to give such an order. Authorization
10 may be based on law, regulation or custom of the service. Manual for Court-Martial, Part IV, paragraph
11 13.c.(2)(a)(iii).
12 The order must relate to military duty, which includes all activities reasonably necessary
13 to accomplish a military mission, or safeguard or promote the morale, discipline and usefulness of
14 members of a command, and directly connected with the maintenance of good order in the service. The
15 order may not, without such valid military purpose, interfere with private rights or personal affairs.
16 However, the dictates of a person's conscience, religion, or personal philosophy cannot justify or excuse
17 the disobedience of an otherwise lawful order. Manual for Court-Martial, Part IV, paragraph
18 14.c.(2)(a)(iv).
19 An order requiring the performance of a military duty or act may be inferred to be lawful
20 and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal
21 order, such as one that directs the commission of a crime. Manual for Court-Martial, Part IV, paragraph
22 14.c.(2)( a)(iv).
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It is not a defense for a service member to claim that an order is illegal based on his
interpretation of applicable law. A personal belief that an order is unlawful is not a defense to a
disobedience charge. The defense has the burden to prove illegality unless the order is palpably illegal
on its face. The duty to disobey an unlawful order applies only to a positive act that constitutes a crime
that is so manifestly beyond the legal power or discretion of the commander as to admit no rational
doubt of the order's unlawfulness. United States v. New, 55 MJ 95, 108, Court of Appeals for the
Armed Forces, 2001.
Conclusions oflaw ­
One, the court finds that the provisions of Rule for Court-Martial 703(c) requiring the
defense to go through the trial counsel for production of witnesses and evidence the defense believes to
be relevant and necessary does not violate Article 46. Under Rule for Court-Martial 703(b)(l) and (t),
both parties are entitled to production of witnesses and evidence that are relevant and necessary on an
interlocutory question, on the merits, or on sentencing. These rules are grounded on fundamental
concepts of relevance. United States v. Graner, 69 MJ 104, Court of Appeals for the Armed Forces,
2010. Article 46 provides that process issued by courts-martial will be similar to that of which district
courts having criminal jurisdiction shall issue. Similar does not mean "identical." The procedures in
Rule for Court-Martial 703 are properly promulgated by the President to ensure that discovery under
Article 46 is limited to production of witnesses and evidence that meet the relevance/necessity threshold.
Two, the defense request for judicial notice ofthe statement, "Soldiers have a duty to
disobey illegal orders," is a legal conclusion that fails to distinguish between a personal belief that an
order is unlawful, which is not a defense unless the order is palpably illegal on its face and a palpably
illegal order. The request for judicial notice for this broad statement is denied.
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1 Three, the defense asserts that the President, as Commander in Chiefunder Article II,
2 Section 2 of the Constitution, is the source of all military authority. In fact, the President, as
3 Commander in Chief, and Congress share authority over the military. Article I, Section 8 of the
4 Constitution empowers Congress to raise and support armies, to make rules for the government and
5 regulation of the land and naval forces, to provide for calling forth the Militia to execute the laws of the
6 Union, suppress insurrections, and repel invasions, and to provide for organizing, anning and
7 disciplining the Militia, and for governing such part of them as may be employed in the service of the
8 United States. Congress has exercised this authority by enacting Title 10 of the United States Code and
9 by giving the Secretary of Defense and the service secretaries statutory authorities and responsibilities.
10 See 10 United States Code Sections 113,3013,5013 and 8013. In 10 USC 3013, Congress designated
11 the Secretary of the Army as responsible for, and with statutory authority to, conduct all affairs of the
12 Department of the Army, including, among others, the following relevant functions: recruiting,
13 organizing, supplying, equipping, training, servicing, mobilizing, demobilizing and further
14 administering, including the morale and welfare of personnel. The statute further empowers the
15 Secretary of the Army to assign, detail and prescribe the duties of members of the Army, and to
16 prescribe regulations to carry out his functions, powers and duties under this Title.
17 Four, the Secretary of the Army has promulgated numerous Army Regulations pursuant
18 to his authority under 10 USC 3013; footnote 1, See Army Publishing Directorate at
19 http://www.apd.anny.mil/. These Army Regulations provide an independent authority for military
20 officers to issue lawful orders. Authorization for officers to issue lawful military orders may be based
21 on law, regulation or custom of the service. Manual for Courts-Martial, Part IV, paragraph
22 14.c.(2)(a)(iii). The authority of military officers to issue lawful orders and the concomitant duty of
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military service members to obey such lawful orders does not depend on whether the President is
qualified under the Constitution to hold office.
Five, any suggestion by the defense that the authority ofmilitary officers to issue any
lawful orders ceases to exist if a serving President is found to be unqualified by the Constitution to hold
office is an erroneous view of the law. Similarly, any suggestion by the defense that if a President is
found to be unqualified by the Constitution to hold office, service members have no duty to follow any
orders issued by their military superiors is equally erroneous.
Six, the three orders at issue in Specifications 1-3 of Charge II are alleged to be
authorized by Lieutenant Colonel William Judd, Colonel Gordon Roberts and Colonel Peter M.
McHugh respectively. Whether President Obama is a natural born citizen, or is qualified under the
Constitution to hold office is not relevant to detennine whether they are authorized to issue the orders
charged.
Seven, the three orders at issue in Specifications 1-3 of Charge II order Lieutenant
Colonel Lakin to report to the office ofhis brigade commander, Colonel Gordon R. Roberts in
Specification I; to report to the office of the Medical Center Brigade Commander at 1700 on 31 March
2010 in Specification 2; and to report to Fort Campbell, Kentucky not later than 1500 hours on 12 April
2010. Whether President Obama is a natural born citizen, or is qualified under the Constitution to hold
office, is not relevant to determine whether any of these three orders constitutes a palpably illegal act, or
whether Lieutenant Colonel Lakin had a duty to obey these orders.
Eight, the more narrowly tailored basis for relevance and necessary posited by the
defense is that if the President is found not to be qualified by the Constitution to hold office, any order
he issues as Commander in Chief is illegal, and any order issued by a subordinate military officer in
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1 furtherance of that illegal presidential order is itself illegal negating the duty of service members to
2 obey.
3 This is not the first time a service member charged with missing movement, dereliction
4 of duty, and failure to obey orders has challenged the legality ofthe order because it was issued in
5 furtherance of a policy that was enacted by the President in violation of the Constitution. Two recent
6 examples of such cases are United States v. Huet-Vaughn, 43 MJ 105, Court of Appeals for the Armed
7 Forces, 1995; and Unites States v. New, 55 MJ 95, Court of Appeals for the Armed Forces, 2001. In
8 Huet-Vaughn, then-Captain Huet Vaughn was charged with desertion with intent to avoid hazardous
9 duty and shirk important service. Captain Huet Vaughn's defense was based, in part, that she disobeyed
10 an order she believed to be unlawful. She wanted to present evidence to contest the legality of the
11 decision to employ military forces in the Persian Gulf. The military judge held that the government's
12 decision to wage war was a non-justiciable political question, and refused to allow evidence to contest
13 the political decision to be presented during the trial. Similarly in New, then-Specialist New was
14 charged with failure to obey an order to wear his US Army uniform modified with United Nations
15 accoutrements. Specialist New argued that the order violated the Emoluments Clause of Article I,
16 Section 9 of the Constitution, and furthered an illegal deployment of United States forces because
17 President Clinton misrepresented the nature of the deployment to Congress, and that the Army's
18 participation in the UN mission was unlawful, and that the deployment violated the Commander-in­
19 Chief Clause, the Appointments Clause, and the Thirteenth Amendment of the Constitution. The
20 military judge found the order to be lawful and declined to rule on the constitutionality of the President's
21 decision to deploy the armed forces in the former Yugoslavian Republic of Macedonia, finding the
22 constitutional issues to be non-justiciable political questions. The decisions of the military judge in both
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1 Huet Vaughn and New to treat the constitutional challenges to the underlying policies established by
2 the political branches were upheld by the Court of Appeals for the Armed Forces, and in New by the DC
3 Circuit considering a collateral challenge under the federal question doctrine. 28 United States Code
4 l331. United States ex reI. New v. Rumsfeld, 448 F. 3d 403, DC Circuit 2006.
5 Ten, the political question doctrine is based on the separation of powers in the three
6 branches of government. The seminal case setting forth when courts should adopt the political question
7 doctrine and preclude judicial review is Baker v. Carr, 369 US 186, 1962. Under Baker, the court
8 should preclude judicial review of a political question upon a finding of one or more of the following
9 factors:
10 One, a textually demonstrable constitutional commitment of the issue to a coordinate
11 political department;
12 Two, a lack ofjudicially discoverable and manageable standards for resolving it;
13 Three, the impossibility of deciding without an initial policy determination of a kind
14 clearly for nonjudicial discretion;
15 Four, the impossibility of a court's undertaking independent resolution without
16 expressing lack of respect due coordinate branches of government; or
17 Five, an unusual need for unquestioning adherence to a political decision already made or
18 the embarrassment from multifarious pronouncements by various departments on one question.
19 Eleven, the court recognizes the distinction between this case and Huet-Vaughn and
20 New in that those cases did not challenge the authority of the President to hold office and make policy.
21 These cases raised constitutional challenges to the policies themselves, rather than the authority of the
22 President to hold office and to act as Commander in Chief.
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Twelve, notwithstanding this distinction, the issues of whether President Obama is a
natural born citizen, and whether he is qualified under the Constitution to serve as President are textually
demonstrable constitutional commitments ofthe issues to a coordinate political department. Article I,
Sections 1 and 3 of the Constitution give Congress the sole power of impeachment and removal of a
serving President. Footnote two what jurisdiction Article III courts have to entertain proceedings
challenging the constitutional qualifications of a serving president and whether such courts would
invoke the political question doctrine in such proceedings is beyond the jurisdiction of this court to
opine. However, the court notes that Article III courts have addressed constitutional challenges to a
President's decision to wage war. See Dellums v. Bush" 752 F. Supp. 1141 DDC 1990. The court
further concludes that it is impossible for this Article I court to undertake independent resolution of
whether President Obama is a natural born citizen or is qualified under the Constitution to hold office
without expressing lack of respect due coordinate branches of government.
Thirteen, in the context of this Article I court-martial for a service member accused of
disobeying orders to challenge the constitutional qualifications of the President to hold office, there is
also an unusual need for unquestioning adherence to a political policy decision already made. The
potential for embarrassment from multifarious pronouncement by various departments on one question
are uniquely powerful to ensure that courts-martial do not become the vehicle for adjudicating the
legality of political decisions and to ensure the military's capacity to maintain good order and discipline
in the armed forces.
Fourteen, the merits of whether President Obama is a natural born citizen and whether he
is qualified under the Constitution to hold office are not logically relevant under Military Rule of
Evidence 401 for the interlocutory question, the merits portion ofthe trial, or the sentencing portion of
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the trial. Even ifthey were logically relevant, in light ofthe conclusion of the court that the above
Baker factors exist, judicial review ofthese questions by this court-martial is precluded by the political
question doctrine. Thus, even if logically relevant under Military Rule of Evidence 401, the issues are
not legally relevant under Military Rule of Evidence 402, and not admissible under Military Rule of
Evidence 403. Footnote three the court recognizes the existence of the de facto officer doctrine,
recognized and described by the Supreme Court in Ryder v. United States, 515 US 177, 1995. In light
of the court's ruling that judicial review of the issues of whether President Obama is a natural born
citizen or is otherwise qualified under the Constitution to hold office is precluded by the political
question doctrine, the court declines to address the applicability of the de facto officer doctrine in this
case.
The court will not compel production of any witnesses or evidence requested by the
defense that relates to the merits of whether President Obama is a natural born citizen, or whether he is
qualified under the Constitution to hold office.
To that extent, the defense motion to compel or other appropriate relief, motion for
judicial notice, and request for deposition are denied.
Now, with respect to the witnesses Dr. Keyes and Lieutenant General McInerney, I
believe the defense has requested those witnesses for- Dr. Keyes for sentencing and Doctor [sic]
McInerney for sentencing, is that correct?
CDC: General McInerney, yes.
MJ: Excuse me, Lieutenant General McInerney, I meant no disrespect.
The court will litigate whether those two witnesses will be produced at the next session.
CDC: Your Honor, may I confer with Major Kemkes for just a moment?
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1 MJ: Certainly.
2 [The defense counsels conferred.]
3 CDC: Your Honor, ifl might inquire, in light ofthe court's ruling, it seems to us that the
4 motions that the government has made to be heard on the 14th are answered by this ruling as well, which
5 causes us to wonder whether there is a need to proceed on the 14
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, or whether this ruling might simply
6 serve as the decision on those motions as well.
7 MJ: What we have left to litigate on the 14th is - correct me ifl'm wrong here, please - the
8 defense had no objection to judicial notice, so that's finished; the government request for ruling on
9 interlocutory questions oflaw, the government has not shown, at this point, that there is authority for
10 those three officers to issue that order ---­
11 CDC: We concede the government is able to show that.
12 MJ: Alright.
13 Let me put it this way - assuming the same three orders were issued, and then-President
14 George W. Bush was currently the President, is the defense saying that those orders, in and of
15 themselves, would be legal?
16 CDC: We concede that.
17 MJ: So, the seminal issue is looking at the President's - the constitutionality issue?
18 CDC: Yes, and we respect the court's decision, contrary to our submissions. Our point is there
19 for further argument on the matter.
20 MJ: Based on the defense concession, the court will find that the three orders at issue in
21 Specifications 1-3 of Charge II are legal orders, based on the court's decision today.
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CDC: A point of clarification - you referred to Dr. Fukino in Hawaii as a male, and it is a
female.
MJ: Excuse me.
CDC: An unusual name.
MJ: Again, I meant no disrespect.
Now, the motion in limine has two prongs; it says, to preclude the defense from raising
irrelevant issues to the trier of fact - the eligibility of President Obama to serve in office, and to exclude
any documentary or testimonial evidence concerning the eligibility of President Obama. I'm looking at
Appellate Exhibit XIV.
The second prong of that is to preclude the defense from raising irrelevant issues to the
trier of fact; and the motive or motives of conduct, to include any claim of conscience, duty, religion,
morality, ethics or personal philosophy, and the accused's pattern of belief, and to exclude documentary
or testimonial evidence of any sort concerning the accused's motives, world views or personal beliefs
during the case on the merits.
Now, prong one in particular, as the defense agreed with the court's order today, would
answer that question?
CDC: It seems the court has left us no wiggle room on that point.
MJ: Does the government agree?
TC: The government agrees with that.
MJ: With respect to prong one, the court will rule for the government, based upon ---­
CDC: Yes, if! misunderstood the court, and you left us any room for argument, please tell me,
but it seems to me that you have not.
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1 MJ: With respect to prong one, the court will rule in favor of the government.
2 With respect to prong two, there's a distinction between the merits of the issues and
3 Lieutenant Colonel Lakin's objective intent and motive.
4 CDC: Yes, that's another matter, Your Honor.
5 MJ: We currently have a proceeding scheduled to hear that issue, and Dr. Keyes and
6 Lieutenant General McInerney, their testimony on that issue, too, is the defense not requesting a separate
7 proceeding to litigate that before trial?
8 CDC: I was focusing on prong one. Perhaps we could approach on this?
9 MJ: Would you like to have a quick 802 conference and come back on the record?
10 CDC: Yes, thank you very much.
11 MJ: How long should I recess the court?
12 CDC: Ten minutes.
13 MJ: Court is in recess.
14 [The session recessed at 1440, 2 September 2010.]
15 [The session was called to order at 1453,2 September 2010.]
16 MJ: This Article 39(a) session is called to order.
17 Let the record reflect all parties present before the court recessed are again present in
18 court.
19 For the record, counsel and Ijust met in chambers for a Rule for Court-Martia1802
20 conference; once again, what that is is a conference where counsel and I discuss scheduling and logistics
21 issues in cases. Part of our procedures require that I synopsize what occurs in those conferences for the
22 record, and ask counsel if they have anything further to add.
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What we discussed in chambers is that the defense has requested additional time to
prepare pleadings for the government motion, Appellate Exhibit XIV, prong two, and if they have any
additional arguments that they want to raise for prong one ofthat motion. For the record, prong one is
the government motion to preclude the defense from raising irrelevant issues to the trier of fact, to wit:
the eligibility of President Barack Obama to serve in the same office, and to exclude any documentary or
testimonial evidence of any sort concerning the eligibility ofPresident Barack Obama to serve in the
same office during the case on the merits; and two, preclude the defense from raising irrelevant issues to
the trier of fact, to wit: motive or motives ofthe accused's conduct, to include any claim of conscience,
duty, religion, morality, ethics or personal philosophy, the accused's patterns ofbelief, and to exclude
any documentary or testimonial evidence of any sort concerning the accused's world views, motives or
personal beliefs during the case on the merits.
Also at that session, we'll be litigating the production of Dr. Keyes and Lieutenant
General McInerney.
The court has granted the defense request for an extension to file pleadings to the 21st of
September 2010; the government's response thereto is due on the 23
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of September 2010.
The defense further requested that the proceedings which were previously scheduled for
14 September 2010 to litigate this issue be postponed to a date closer to the trial date, which is scheduled
for 13 October through 15 October. The court has agreed to move the date, and we have now scheduled
the session for this motion to be heard on the 28
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of September, which is a Tuesday, here at Fort Meade,
once again at 11 0' clock.
As I understand, neither party intends to call witnesses for those motions, is that correct?
TC: Not at this time, Your Honor.
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1 CDC: Not at this time, Your Honor.
2 MJ: Not at this time?
3 TC: The government does not intend to call any witnesses, Your Honor.
4 CDC: We don't intend to either, but if they change their mind, we might. However, as a matter
5 of practical reality, it doesn't seem very likely. We have no witnesses to call at this time.
6 MJ: Where I'm going with this is I don't want to be told 2 days before this proceeding is
7 scheduled to go that, 'Oh, gosh, we're calling witnesses now. We're sorry, government, or defense, we
8 just decided to call witnesses.' Do you want me to establish a date that any witnesses are due?
9 TC: That's fine, Your Honor.
10 MJ: Why don't we do it this way then? If anybody wants any witnesses for the motion
11 session that is going to be held on the 28
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, advise the court and the other side no later than the 16
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12 September; that should give you time to produce.
13 CDC: That is only ifwe intend, the absence of which ---­
14 MJ: Ifthere's nothing on the 16
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, I will assume, and both parties can assume, that the other
15 side doesn't intend to call witnesses. If you're going to call anyone, notify the other side no later than
16 the 16
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of September 2010.
17 Does either side desire to supplement what I just described occurred in the Rule for
18 Court-Martial 802 session?
19 TC: No, Your Honor.
20 CDC: No, Your Honor. Thank you.
21 MJ: Is there anything further we need to take up before we recess the court today?
22 CDC: No, thank you, Your Honor.
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1 TC: No, Your Honor.
2 MJ: Court is in recess.
3 [The session recessed at 1458,2 September 2010.]
4 [END OF PAGE]
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1 [The session was called to order at 1106, 28 September 2010.]
2 MJ: This Article 39(a) session is called to order.
3 Let the record reflect that all parties present when the court last recessed are again present
4 in court.
5 We have a number of issues to address today. Let us begin with the motion that the court
6 received yesterday.
7 Mr. Jensen, I have an email from you at approximately 10:53 yesterday, 27 September
8 2010, stating that the defense has filed a petition for an extraordinary writ with the Army Court of
9 Criminal Appeals ---­
10 CDC: Y es, Your Honor.
11 MJ: ---- and requesting that this court delay today's proceeding, and delay the trial.
12 CDC: Yes, Your Honor.
13 MJ: We're here today, so obviously, the court ruled that we'd go ahead with today's
14 proceeding.
15 What is the rationale for delaying the trial?
16 CDC: Thank you, Your Honor.
17 The issues that we've presented to ACCA we think will be found by them to be
18 compelling, and that they will take up. The answer to the first question are the same reasons that we put
19 in our brief there, which are that the court's order of 2 September significantly prejudices Colonel
20 Lakin's right to a fair trial under the Fifth and Sixth Amendment. We think that by allowing the court
21 above to make a decision, one way or the other, prejudices no one, and allows for fairness to the
22 accused; absent which, we submit that will not take place.
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1 Our submission is, quite simply, he cannot have a fair trial without the relief we've
2 requested from the Army Court of Criminal Appeals.
3 In deference to the court above, we ask this court to briefly postpone the trial to allow
4 them to rule.
5 MJ: How briefly is "briefly?"
6 CDC: A couple weeks?
7 I think they're going to rule, one way or the other, rather quickly.
8 My request is that you postpone the trial until they've ruled. If I'm wrong, and they take
9 a longer period of time, I would renew the request. But at this time, I think the matter is capable of
10 adjudication sooner rather than later, but I can't speak for the court more than anyone else can.
11 MJ: This court's ruling on 2 September, why did the defense wait to file until yesterday?
12 CDC: We didn't wait; there were issues involved that I can't really get into of an attorney-client
13 nature that delayed us in preparing a proper brief.
14 MJ: Do you have anything else on that issue?
15 CDC: No, thank: you, Your Honor.
16 MJ: Government, why does the government oppose?
17 TC: Your Honor, as the defense states, the government's position is it is likely that ACCA
18 will act quickly, that these proceedings can move parallel, there's no need to stay the proceedings. In
19 the event that ACCA determined that they needed more time, they can obviously stay the proceedings.
20 Based on the logistical and administrative arrangements that the government has already made in
21 anticipation of trial in 3 weeks, the government maintains that there's prejudice to the speedy and
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efficient operation of the trial, and there's no prejudice to the defense, because if there is a quick
decision, it won't prejudice the defense.
MJ: What are the logistics that the government has already undertaken?
TC: Notifying the panel to coordinate their schedules; planning for logistical support to have
the panel stay in the area, to allow for the ease of a multi-day trial- logistical support of bringing the
trial to this location, Your Honor, as well as notifying government witnesses.
MJ: There's a number of defense witnesses that are coming in from out-of-town as well, is
that true?
TC: Yes, Your Honor. That's one of the issues that we have to take up is clarity, in light of
the court's ruling, which of the remaining defense witnesses the defense wants us to call. It'd be slightly
fewer of the good character witnesses, and then the defense represented they might not need, depending
on how they proceed to trial- they may not need some of the currently-requested witnesses. The
government is in the process of contacting and ensuring the travel for those defense witnesses, and that
would obviously be something that'd be a prejudice, if we had to change gears.
MJ: Mr. Jensen, with respect to defense witnesses, if I decide to delay this trial for - it is not
going to be an indefinite delay. If! decide there's going to be a delay, it'll be a couple weeks. Are there
going to be any issues with witness availability with any ofthe defense witnesses?
CDC: I don't believe so, but may I inquire for a moment?
MJ: Yes.
CDC: [After conferring with DC and ACC.] We are unaware of any problem, Your Honor.
If I might add, I certainly appreciate trial counsel's concern for convenience of witnesses
and hotel accommodations and the like, although I think many ofthe witnesses, or most, are close by.
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Certainly, all of the panel members should be close at hand. We would hope that by a continuance of (;
couple weeks, out of respect for the court above - to allow them to rule on this, to enable Colonel Lakin
to present his case. Any logistical inconvenience could be managed. We think that it is not that
significant, and in any event, deference to the court above is very important.
Balancing the two, we submit it comes down in favor of a brief continuance.
MJ: Government, does the record of trial have to be authenticated prior to the Army Court of
Criminal Appeals acting?
TC: The government's understanding is there may be a request for an authenticated - or a
transcript to be created, but we're standing by for a show-cause order to come from the court to the
government. We're coordinating with the Government Appellate Division to confirm and make sure
that we provide them with whatever documents they need. We're unaware of any request at the current
time, and I don't believe it is necessary. Certainly, it might be a possibility.
MJ: I'm going to take this under advisement and issue a ruling with respect to the continuance
later today when I issue rulings with respect to the other issues in the case.
During the break that we will hold, please contact the Government Appellate Division.
Find out what logistics are involved, and what they will need to enable the Army Court of Criminal
Appeals to act, and advise the court.
TC: Yes, Your Honor.
MJ: For the record, was the motion for continuance and the emails marked as an appellate
exhibit?
TC: Not yet, Your Honor.
[The request for continuance was marked AE XVIII. ]
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MJ: That's been marked as Appellate Exhibit XVIII.
For the record, I was advised by email from the government on September 17, 20 I 0 that
neither party has submitted notice of intent to call witnesses at the motion hearing today. Is that correct?
TC: Yes, Your Honor.
CDC: Y es, Your Honor.
MJ: The remaining motions that we have today, have they been marked as appellate exhibits?
TC: Yes, Your Honor.
MJ: I'm looking at Appellate Exhibit III, which is the government motion to take judicial
notice pursuant to Military Rule of Evidence 201 of Anny Regulation 600-8-105, Military Orders, dated
28 October 1994; and two, Department of the Anny Personnel Policy Guidance for Overseas
Contingency Operations, Chapter 11, dated 1 July 2009.
Ifl understand the defense response to the government motion, dated 21 September 2010,
I believe that's accompanied by an email sayingthat.Mr. Jensen, that you don't oppose judicial notice?
CDC: We do not oppose. We're at a loss to know which sections in these voluminous papers
that they're calling our attention to, but having said that, we do not oppose.
MJ: The government's motion to take judicial notice at Appellate Exhibit III is granted.
Let's move on. The government moved for an interlocutory ruling on the lawfulness of
the orders at issue in Specifications 1-3 of Charge II.
Mr. Jensen, at the close of the 2 September 2010 session, I a ~ k e d the defense ifthere
were any other challenges to the lawfulness of the three orders at issue, other than whether the President
is qualified to hold office. Your response to me at that time was no.
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CDC: Your Honor, I don't recall the colloquy with precision, and the record will certainly
reflect it. What I will say is that our challenges to the lawfulness of the order are set forth in our briefs.
MJ: Let me ask the question this way. If the same identical orders were issued by the same
identical people, in the same identical circumstances several years ago when George W. Bush was
president, would there be any challenge to the legality of those orders?
CDC: The hypothetical the court puts mayor may not be a complete hypothetical, but we have
challenged these orders because this president is ineligible.
MJ: That's what I'm asking you. Is that the sole basis of the challenge, or are there any
additional challenges? I'm not trying to trap you.
CDC: I understand, Your Honor, but nevertheless, I'd rather still not be trapped, whether the
court intends me to be or not. We have no position on the orders, if they'd been given under President
Bush; we have a position with the orders given under President Obama, and our position is fully set
forth in our briefs. We don't have any arguments to raise that are not briefed.
MJ: Okay.
Since it is the government's motion with respect to requesting an interlocutory ruling on
the lawfulness of the orders, if the government would briefly set forth the reasons why.
TC: Your Honor, just for the government's clarity, the government may also misremember
the colloquy, the government's understanding was that that was conceded, and in fact, that motion was
no longer before the court at this hearing in light of the court's 2 September ruling. The defense said,
Your Honor, in light of this ruling, the defense concedes that the orders are lawful, and that Your Honor
made that ruling at that time.
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The government is happy, obviously, to rest on our motion and make the same
arguments, but for clarity sake, we did not believe this was an open question coming into this hearing.
CDC: Your Honor, I made no concession, but counsel is otherwise correct. I had nothing
further to say in opposition of the motion, and I didn't think it was still at issue. I thought the court had
ruled on that issue.
MJ: Basically, my recollection of the events that occurred was that the court had never made a
formal ruling, but that the defense had advised me - the government had three witnesses, the three
commanders, that issued the orders ready to come in and testify today, and the defense advised the court
that you didn't need to have them come in to testify today because you did not have challenges, other
than the constitutional issue involving the president.
CDC: That is exactly correct.
Having said that, we do not intend to concede the point, but we just don't have anything
further to say on the point.
TC: Your Honor, there was never a defense response filed to the government's motion for an
interlocutory ruling. The defense filed their own affirmative motions, and in light of the 2 September
ruling, the defense filed a motion in response to the government's motion in limine. But the
government's motion for an interlocutory ruling remains unresponded to. I'm not sure what motions or
arguments the defense is resting on.
CDC: I agreed with Captain Q'Beirne earlier, Your Honor, when he said that he thought the
court ruled on it at the last hearing. For that reason, we filed no further response. So I believe Captain
Q'Beirne is correct.
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MJ: The rulings that the court made with respect to the discovery issues spills over to that
issue, even though the court didn't say that the orders at issue were lawful. Thus, in light ofthe position
that we're in today, the court will formally rule that the three orders at issue in Specifications 1-3 of
Charge II are lawful, based on the rationale of its decision on 2 September 2010.
CDC: May the record reflect, Your Honor, the defense has opposed the motion, and that this is
not an agreed result or concession on our part, but rather, we had nothing further to argue.
MJ: Noted for the record.
Turning now to the government's motion in limine, which is Appellate Exhibit XIV,
which states the relief sought: "Comes now the United States, by and through its detailed counsel, and
respectfully request the court grant the following relief:
"One, preclude the defense from raising irrelevant issues to the trier of fact: to wit: the
eligibility of President Barack Obama to serve in the same office, and to exclude any documentary or
testimonial evidence of any sort concerning the eligibility of President Barack Obama to serve in the
same office during the case on the merits; two, preclude the defense from raising irrelevant issues to the
trier of fact, to wit: the motive or motives ofthe accused's conduct, to include any claim of conscience,
duty, religion, morality, ethics or personal philosophy, the accused's pattern of belief, and to exclude
any documentary or testimonial evidence of any sort concerning the accused's motives, world views, or
personal beliefs during the case on the merits."
Once again, at the end of the prior session, as we discussed earlier, the ruling of the court
of 2 September 2010 with respect to the discovery and evidentiary issues, that also spills over into prong
one of this motion.
Government, what's your position?
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TC: Your Honor, the government's position is that in light of the 2 September ruling, and t'
morning's formal ruling regarding the lawfulness of the orders, the orders at issue in this case are lawful,
therefore, the affirmative defense of the duty to disobey illegal orders does not exist in this case.
CAAF precedent is very clear - there is a distinction between intent and motive. For the
purposes of relevance, the evidence that goes to the specific intent of an accused in the actions they were
taking is different from motive evidence relating to their ultimate purpose; and motive evidence, per
Huet-Vaughn, is irrelevant, unless that evidence rises to the level and supports an affirmative defense.
Therefore, in this case, to the extent that the accused's claim of a duty to disobey the
order, based on his conscience, his duty to the Constitution, or some other issue relating to the
President's eligibility, or his own personal beliefs, are irrelevant. Any facts related to those are
irrelevant, in light of the court's ruling.
The government asks for a motion in limine to prevent these irrelevant issues from going
in front of the panel, to prevent undue confusion under Rule 403, and for the ease of administration of
the trial and to not to have to continue to litigate these issues.
The court in Washington also said, in our brief, made a similar decision with regard to
the soldier who turned down the anthrax vaccine; his motivation in doing it, his reasons, his factual
beliefs that predicated it, did not rise to the level of a duress defense. Therefore, the court issued a
motion in limine preventing the defense from mentioning any of those underlying factual issues that
predicated the motive at the trial, and that decision was upheld.
The government asks the court to limit, in light of the rulings about lawfulness, and the
irrelevance of any issues regarding the President's eligibility, or the accused's motive or belief based on
those issues, from being mentioned on the merits in this case.
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MJ: Is it the government's position that the accused's motive is not relevant at all, for e i t h e ~ '
the government or the defense?
TC: On the merits, Your Honor, or at sentencing?
MJ: Yes, on the merits.
TC: On the merits, Your Honor, yes, the accused's motive is irrelevant. On sentencing, it is
relevant as a 1001 sentencing factor potentially relevant, depending on what facts come out, and what
it is he'd testify to. But based on our knowledge of the facts, on the merits, the accused's motive,
separate from his specific intent, is irrelevant.
MJ: The case law holding that motive is relevant to the extent it provides circumstantial
evidence of intent, the government is not going to offer any evidence under that theory?
TC: To the extent that it offers circumstantial evidence as to specific the government does
not intend to offer any evidence in this case about the accused's motive relating to his specific intent to
commit the crimes with which he is charged. That's correct, Your Honor.
MJ: Say that one more time.
TC: The government does not intend to offer any evidence related to the accused's motive or
belief regarding President Obama's eligibility, or his personal claims of conscience, etcetera - does not
intend to offer any such evidence in support, or circumstantially to prove, his specific intent. The nature
of specific intent, as compared to motive, indicates the accused intends the natural course of his actions;
the defense's response brief concedes the facts are not in dispute - that he received orders, that he did
not obey those orders, that he did so with knowledge of the orders, etcetera.
The government is not intending to offer the motive, for our purposes, and prevent the
accused from offering it for his purposes. The motive evidence is irrelevant on the merits.
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MJ: So you're looking for the ruling from the court saying it is not admissible for any party
for any reason?
TC: Yes, Your Honor.
MJ: Anything else?
TC: No, Your Honor.
lVIJ: Mr. Jensen?
CDC: Thank you, Your Honor.
One of the pieces of evidence that the government wants you to consider today ­
specifically, item number four of their witnesses and evidence - is Colonel Lakin's letter to the
President.
In his concurring opinion in the New case, later-Chief Judge Effron talked about his
rationale involving the opportunity of New to avail himself of redress under Article 138, contacting his
congressional representative; 1 think the government was correct in seeking today to use Colonel Lakin's
letter. I think Colonel Lakin's letter, and perhaps other evidence as well, is relevant to the issues that we
will try.
One of the defenses we will present is that of a good soldier. It seems to me that these
concepts are inextricably linked. If Colonel Lakin is allowed to argue and present evidence that he is a
good soldier, how can he, at the same time, not be allowed to argue that he did his duty as he saw it? It
seems to us not only logically inconsistent, but unfair and prejudicial to Colonel Lakin's right to a fair
trial, not to allow him to get on the witness stand and say, 'I was doing my duty when I acted as I did.'
Also, while the trial counsel says facts are not in dispute, that's true, but only up to a
point. Some facts are not in dispute, others are. To the extent that he's referring to what we said in our
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brief, yes. What we said is not in dispute is not in dispute. But he would have the court think that
nothing is in dispute.
More to the point, Your Honor, we think that the best way to handle this at trial, in light
of the court's existing ruling, is to rule on an ad hoc basis when evidence is sought to be admitted. The
government concedes that this issue is within the court's sound discretion. We think it is most
appropriate to rule on this when evidence is proffered, either immediately before a witness is going to
testify, or during the witnesses' testimony, indeed, if a question is found to be objectionable, under the
court's existing orders.
But I think it is impossible to stand here today and tell Your Honor what evidence can be
excluded on the court's existing ruling, and yet remain admissible under a "good soldier" defense. I
think you have to wait and see it as it unfolds.
MJ: Mr. Jensen, you argued to me that Lieutenant Colonel Lakin should be able to get on the
witness stand and say that he didn't have a duty to obey that order. Under the Manual for Court-Martial,
Part IV, paragraph 14(c)(2)(A)(iv), it says, "The dictates ofaperson's conscience, religion or personal
philosophy cannot justify or excuse the disobedience of an otherwise lawful order." How are those
consistent?
CDC: There may be an inherent inconsistency, but the point is, he's allowed to present a "good
soldier" defense. So, to the extent ---­
MJ: It's a good military character defense.
CDC: And his good military character is one of doing his duty.
TC: Your Honor, everything the defense just said bears on the lawfulness issue; it has nothing
to do with the intent/motive distinction that the government mentioned in its brief. It is simply not the
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case that there's some broad universe of facts with which we're not clear are going to be attempted tc be
raised at trial. The defense plainly states, 'The accused's defense to this case is the truth of his assertion
that President Obama is ineligible to hold office and give orders.' There's clearly particular facts that
the court has ruled are irrelevant that do not support a defense of illegality, and therefore, it is in the
interests of a clean record and protecting the panel from irrelevant evidence coming in. The Huet-
Vaughn case is replete with the difficulties of having a ruling made on a case-by-case basis at the time,
requiring constant 39(a) sessions, and the court in that case, in the end, gave an instruction which,
essentially, was consistent with the original motion in limine, saying that none of this was relevant.
It is preferable to keep all that irrelevant evidence away from the panel in the first place.
In United States v. New, and in the MCM, as the court just noted, the court in New
determined "There is no constitutional right, or statutory provision, that gave an appellant authority for
the self-help remedy of disobedience,' and that personal scruples, to the extent that they don't rise to the
level of making the order illegal are not a defense, and therefore, cannot be raised; in particular, in light
of the Huet-Vaughn case, which the defense does not cite in its response brief, and doesn't mention,
that is motive evidence that is irrelevant. It does not go to the accused's intent.
The government is not here to relitigate the lawfulness issue, but merely to take that
ruling and apply it, prospectively, to what is going to occur at trial.
CDC: Your Honor, we discussed the New case, which was handed down 6 years after Huet-
Vaughn. Moreover, there are nuances presented in the Lakin case that may not have been present either
in Huet-Vaughn, and certainly were not present in the New case.
MJ: What do you distinguish between this case and Huet-Vaughn?
CDC: Well, it is difficult to articulate because the case has not yet developed.
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MJ: Mr. Jensen, let me tell you one ruling I am going to make today, is I'm going to ruling on
these issues today. I'm not going to wait step-by-step at trial, because I think it is important for the
parties to know exactly what is going to be admissible, and what is not.
If you need a recess to further develop some of the arguments you might want to make
today, I'll be happy to give that to you, but the ruling will be made today.
CDC: I understand, Your Honor.
This is another reason why the motion for a brief continuance to allow the Army Court of
Criminal Appeals to make a decision becomes even more important.
MJ: How is that?
CDC: Because the court's ruling today, as Your Honor just said, established finality to this
Issue. Therefore, I think it becomes even more important that we do it right, and we wait to get the
decision of the Army Court of Criminal Appeals.
On the substantive point, going back to the discussion ofHuet-Vaughn, and moreover,
the New case, as we cited in our brief, the concurring opinions make very clear that under different
facts, a different analysis may apply. In the New case, what was being challenged, in essence, as the
court's opinion set forth, was the legitimacy of the deployment order itself. Your Honor, in your order
of2 September, talked about this distinction. We are not challenging that. What we are challenging is
something more fundamental, one step removed from that.
As we cited in our brief, Senior Judge Everett, formerly-Chief Judge Everett, went to
considerable length to discuss an example of a case that would be different than the New case, where
motive would be an appropriate question of fact, not a legal question, but a question of fact to be
determined by the court-martial members, under proper instructions.
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1 Judge Effron, in his opinion, as we quoted in our brief, "If there is a factual dispute as to
2 whether or not the order was lawful, that dispute must be resolved by the members, in connection with
3 their determination of guilt or innocence."
4 In light of Your Honor's existing ruling on legality, we think that we are allowed under
5 New is to present a "good soldier" defense, including the argument that he was doing his duty as he
6 understood it, as he'd been trained. We think that that is directly relevant, and as Judge Everett said in
7 his hypothetical about a command given by a company commander David, to his sergeant, Uriah, there
8 are cases that require a more delicate analysis than was given in New. We think that the nuances of this
9 case dictate that the evidence that the defense be allowed to present for "good soldier" will necessarily
10 involve some discussion ofhis training, of the steps that he made to ameliorate the issue beforehand,
11 such as Judge Effron mentioned Article 138 requests - Colonel Lakin made repeated Article 138
12 requests.
13 As I said earlier, the government's submission ofthe letter to President Obama in
14 connection with this motion is equally relevant to why Colonel Lakin was doing his duty.
15 If a "good soldier" defense is allowable, how can the court say he can't discuss his
16 commitment to doing his duty? We think that it must be permitted, under proper instructions.
17 Thank you, Your Honor.
18 MJ: Mr. Jensen, in the defense response to the motion in limine, you discussed a letter to the
19 President and challenges under Article 138. I believe you state something that the accused was not
20 allowed to do certain respect to "In this case, Lieutenant Colonel Lakin was told that these avenues,"
21 at least the first two, "were not available to him:" the first being the Inspector General; the third being to
22 communicate directly with members of Congress.
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CDC: No, I'm referring to the Article 138s and the Inspector GeneraL
MJ: Do you want to have those marked as appellate exhibits for the court's consideration?
CDC: Yes, Your Honor, but we would ask for a brief recess, I don't have that at hand. If Your
Honor is going to take the matter into submission, we'll give them to you in 5 minutes.
MJ: Why don't we do that then? How long a recess do you need? What I'd ask you to do is,
any documents you want the court to consider in this ruling, have them marked as appellate exhibits and
I'll consider them.
CDC: I appreciate it, Your Honor.
[After conferring with DC and ACC.] Your Honor, we didn't bring our entire file, but
we have it back at the office. I'm unsure if there's a fax machine or printer available that we can have
something emailed or faxed over right now.
MJ: You say "back in the office," where is "the office?"
CDC: I believe that my colleague has it in his office in Arlington; I have it in my office in
California, but my secretary should be there and able to do it right now, if we have a fax machine we can
use.
TC: Your Honor, the government is aware of one Article 138 complaint, which I believe we
have - we'll have to double check, because once again, it was not attached. We can certainly take a 5­
minute recess, see if the government has the documents at issue, and ifnot, we can try to obtain them as
expeditiously as possible. I'm not aware that the government is in possession of a second Article 138
complaint, but obviously, whatever the government has that can be marked for the purpose of the
motion, we'll be happy to give it to the defense.
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CDC: That's very courteous and we appreciate it. We may have additional documents, so I
would ask ifthere's a fax machine available.
TC: We'll also, obviously, Your Honor, attempt to figure out I believe we have logistics
capabilities to receive emails and faxes in the building, but we'll get with defense and support them
however we can to get documents here.
MJ: Why don't we take a recess until 12 o'clock? Government, I've also asked you to get
with the Government Appellate Division and assess what logistics are necessary for the Army Court of
Criminal Appeals to consider the writs, and the logistics of how long it will take the government to
ensure that those actions are complete.
TC: Yes, Your Honor.
CDC: Thank you, Your Honor.
MJ: Court is in recess.
[The session recessed at 1142,28 September 2010.]
[The session was called to order at 1313, 28 September 20 1 0.]
MJ: This Article 39(a) session is called to order.
Let the record reflect all parties present when the court last recessed are again present in
court.
What do we have?
CDC: Your Honor, I apologize for the delay, and I thank you for your indulgence.
MJ: I'm looking at what's been marked as Appellate Exhibit XIX, which is a request for
redress under Article 138, UCMJ, and Appellate Exhibit XX, which is a complaint of wrongs under
Article 138.
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Mr. Jensen, what is the relevance ofthese documents on my ruling?
CDC: As we discussed, Your Honor just for the record, you mentioned the complaints of
wrong under Article 138 is the first two pages, and the second is the letter of Decernber 11 th of Colonel
Swope in response to that, which you should have.
MJ: It is part of Appellate Exhibit XX.
CDC: Yes, Your Honor.
The relevance of these, as I discussed before we took the break, is to comply with the
discussion we were talking about from the New case, and I quote, "Congress has provided Appellant
New with a variety of means to communicate his views to his superiors and national policy makers. He
may challenge policy through a complaint under Article 138, UCMJ, 10 USC Section 938; he may raise
his concerns to the Inspector General of the Department of Defense, 5 USC Appendix; and he may
communicate directly with members of Congress," United States v. New, 55 MJ 95.
As I go on to say, on that basis, the court made a finding regarding that we've been
talking about in the New case. In Colonel Lakin's case, he availed himself ofthose opportunities, as
you can see. When you read the exhibits, you'll see the complaints that he raised, and his attempts to
redress the situation, and you'll see the responses, which tell him, in a word, "No."
MJ: You cite communicating with Congress here as well.
CDC: Yes, Your Honor, and with the Inspector General. We have no documents to give you.
In addition to these, Colonel Lakin gave these to members of Congress. Colonel Lakin had, as an offer
of proof, would testify that he had communications regarding submitting complaints to the Inspector
General, but we have no other documents to give you for today.
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1 MJ: The fact that Lieutenant Colonel Lakin has filed these requests for redress, and it has. r,t
2 been acted upon ---­
3 CDC: They were acted upon, and you have the responses. He was told that he could not obtain
4 redress through these submissions under Article 138. Contrary to the facts in New, where New had
5 available to him a procedure under Article 138, Colonel Lakin did not. That's a distinguishing factor,
6 and I think an important one.
7 MJ: Government, anything?
8 TC: Yes, Your Honor.
9 First of an, to go back to before the recess, the defense mentioned and discussed the
10 holding in New is related to New's motive, and that's just not the case; New discusses lawfulness and
11 not motive. We are now entirely back into a reexamination of the propriety of the court's determining
. 12 that the issue in this case regarding lawfulness is a non-justicable political question.
13 Yes, the court in New mentioned, as one of the foundations of the conclusion, that the
14 issue there was a non-justicable political question, that there are other political avenues open to the
15 accused. What that does not mean is that if the accused uses those avenues and doesn't get the relief
16 that the accused wants, it therefore makes the question justicable.
17 The accused submitted an improperly formulated 138 complaint to the Chief of Staff of
18 the Anny asking for redress, and received a response stating that this is not a properly formulated 138
19 complaint, without getting into the merits of his 138 complaint. What is clearly not the case is that the
20 New opinion stands for the proposition that if you don't get redress through the other options available
21 to you, you then get redress of non-jus tic able political questions in court.
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To reiterate, we are far afield from the post-ruling argument of the government that in
light of your determination on lawfulness, motive evidence is irrelevant.
MJ: Defense, anything?
CDC: Finally, in response, the trial counsel characterizes the documents in his way, I
characterize them in my way. We submit Your Honor should read them. They should be reviewed by
you, and let you determine what they say.
MJ: I note for the record that I have the letter to the President as an enclosure to the
government's motion.
Mr. Jensen, you've discussed the "good soldier" defense. What other defense, if any,
does the defense assert the motive evidence goes to?
CDC: (After conferring with DC.] Your Honor, the court characterizes it as motive; I
characterize it as duty, as a component of the "good soldier" defense. That is what we are seeking to
introduce evidence to support. We have nothing further to introduce at this time.
MJ: So, no other defenses? A "good soldier" defense is what you are looking to use that
this evidence is relevant for?
CDC: Yes, Your Honor this evidence. There are other things that may come up at trial that
have nothing to do with the issues that we're talking about today, but in terms of the motion for today,
and the issues raised by the motion, we've presented what we have.
MJ: Government, I also asked you, during the recess, to assess what was necessary for the
Army Court of Criminal Appeals to act upon the writ that was filed in this case yesterday. What
information do you have for the court?
TC: Yes, Your Honor.
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1 The representation I would confinn with Government Appellate Division - as presently
2 constituted, there is no additional need for production of any documents or anything for ACCA to act on
3 the writ. In the event that ACCA does seek additional infonnation or support from the parties, all it
4 would need is, potentially, an authenticated transcript, and a brief from Government Appellate Division
5 through a show-cause order. That brief, our understanding, is already drafted, and the record oftrial is
6 already created up to today, and that can obviously be authenticated at the direction of the court.
7 We are not aware of any additional requirements that ACCA would be waiting for, but in
8 the event that they arise, they are already completed. There's no potential delay, or there's currently
9 nothing that would hold up the natural consequence of how ACCA would act on the writ, based on my
10 knowledge of the process, and the representations of the Government Appellate Division.
11 MJ: Do both sides agree that the Anny Court of Criminal Appeals has the authority to order
12 me to stay these proceedings, should they decide to do that?
13 TC: Yes, Your Honor.
14 CDC: Yes, Your Honor.
15 MJ: I'll take these issues under advisement, and I will issue a ruling today on all of the issues
16 that we have discussed.
17 Does either side desire to add anything further to any of the discussions that we've had?
18 CDC: Your Honor, there was one other matter you were going to rule on today, and that was
19 whether we can call Lieutenant General McInerney and Ambassador Alan Keyes.
20 MJ: Are you looking for those for merits or sentencing?
21 CDC: Both.
22 MJ: What would they be testifying for on the merits? Start with Mr. Keyes.
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CDC: I think he would be just on sentencing, Your Honor.
MJ: Okay, start with Lieutenant General (Retired) McInerney.
CDC: General McInerney, as set forth in his affidavit --let me back up.
His testimony would be consistent with what is set forth in the affidavit, and generally
speaking, would not go beyond subjects that were raised in the affidavit. More particularly, what he
would testify to - the proper training of soldiers on obedience of orders and the chain of command.
MJ: Government?
TC: Your Honor, the government renews its objection, and obviously, we can change this,
depending on the witness - Dr. Keyes or Lieutenant General McInerney. The government objects to the
testimony of General McInerney regarding chain of command, or any other type oflawfulness of the
order testimony as irrelevant, in light of the court's ruling. In addition, the government's understanding
is that he was requested as an expert witness; we also object to him being tendered as an expert witness
for a variety of reasons under Rule 702 and 703.
CDC: Your Honor, without hearing the objections, I have no way to respond. However, we
submit that he is qualified as an expert. Moreover, ifthere are going to be objections, I'd like the
opportunity to respond. For today, we submit that his testimony would be relevant, subject to a proper
foundation being laid at trial, and a proper qualification as an expert.
But in terms of subject matter, we think that the proper - as an expert, a retired lieutenant
general, could testify to the proper training of soldiers on subjects I mentioned: the obedience of orders
and the chain of command. These are part and parcel ofthe "good soldier" defense that we've already
been talking about. In the same context, General McInerney's testimony would be offered to support the
"good soldier" defense.
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The other areas that Captain O'Beirne refers to with regard to his affidavit, we
understand the court has already ruled, and he would not be allowed to testify as to those areas. But as
to these two subjects that relate to the "good soldier" defense, we think that for the same reason as the
documentary evidence we've been talking about, that would be relevant.
MJ: Mr. Jensen, on the merits, what that basically is doing is re-litigating the interlocutory
issue of whether the orders are lawful; those are questions of law that the members will be receiving
instructions from the court on.
In so far as Lieutenant General McInerney would testify as to legal issues, I'm not going
to allow that testimony on the merits.
With respect to sentencing, what do you expect Dr. Keyes and Lieutenant General
McInerney to testify to?
CDC: That's a much more comprehensive scope.
Dr. Keyes would testify on the subject of constitutional history. Now, we are talking
about motive, and we are talking about intent.
MJ: You're talking about Lieutenant Colonel Lakin's motive and intent. Did he rely on Dr.
Keyes?
CDC: I think there will be testimony in that regard, Your Honor. I'm not sure of the extent of
the reliance, or the extent of the testimony. But in principle, that's what Dr. Keyes would testify to,
providing a basis for Lieutenant Colonel Lakin's conduct.
General McInerney, in the same way.
MJ: Did Lieutenant Colonel Lakin, before the dates of the offenses in here - did he have any
contact with either of these two people?
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CDC: I'm not sure with regard to Ambassador Keyes; with regard to General McInerney, no.
But that's not my point. My point is that they would testify that Colonel Lakin was following his duty.
Let's talk about General McInerney's testimony; it would be that Colonel Lakin followed
his duty and did the right thing. For sentencing, we think that is particularly appropriate and relevant.
It is not a question as to the ultimate legality, Your Honor; it is opinion expert testimony,
based upon his experience as someone responsible for the training of soldiers in these areas.
For sentencing, speaking to sentencing, we believe that that opinion is relevant.
MJ: The question of whether Lieutenant Colonel Lakin has a duty to obey the orders is before
the members. If the members come back with findings, then I'm confused on how General McInerney's
opinion that there is no duty does anything but impeach the findings.
CDC: As Judge Everett's opinion in the New case illustrated, under proper instructions, the
intent of Colonel Lakin, particularly at sentencing, is relevant, and the General's expert opinion as to
what his training should have led him to conclude is relevant, under proper instructions.
MJ: Does he have any role in, or any experience with, Lieutenant Colonel Lakin's training,
anything like that?
CDC: No, but again, we offer it as expert testimony in general.
MJ: Government?
TC: Your Honor, first and foremost, the chain of command, Army command, or however the
request is styled in the original request, is not the type of scientific, technical or other specialized
knowledge that affords itself to expert testimony.
What the defense is attempting to do is to bolster the legitimacy of the motive of the
accused, which is relevant on sentencing, by calling another witness to say, 'That was a good motive.
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He was properly following that motive.' As Your Honor points out, there is no factual nexus between
General McInerney and the training that Lieutenant Colonel Lakin received, or the development of his
motive or rationale for the actions he took in this case. Specifically, and this was the Rockwood
problem with the defense's witness request, there is no proffer for himself or for Dr. Keyes as to an
actual factual relationship. He was a retired Air Force general; Army Regulation 600-20, and the other
Army service implementing regulations of the Uniform Code of Military Justice, are at issue in this case.
There's no basis to conclude, first and foremost, that that type of generalized experience that senior
officers have is the kind of scientific knowledge that would require an expert would be proper for an
expert.
As the court notes, experts help the panel interpret questions of fact. They do not apply
the law or principles to facts to state, as the accused just said, what his training should have led him to
do. The accused can testify as to what his training was, to what ideas or principles led him to do
whatever he did. There's no particular relevance of anybody else's opinion. It would not be proper
expert testimony.
Obviously, the same arguments, and more, apply to Ambassador Keyes. But specifically
to Lieutenant General McInerney, there's no relevance, it is not proper expert testimony, and the
government objects.
CDC: Your Honor, in conclusion, and in response to these comments, it is difficult to articulate
how essential it is that we be able to present some evidence in defense of this case. The government's
position is he did it, let's hang him. What witnesses would the government allow us? None. We have
to have the opportunity to put on some defense. This little sliver is all we have left, and that is what we
are seeking. Beyond that, it is as if there is no opportunity to defend this case.
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1 Colonel, these witnesses would testifY that Colonel Lakin not only did the right thing, but
2 he did the thing that he's been trained to do. We submit that is a proper defense - whether it be for the
3 merits in General McInerney's case, or for sentencing in both cases, we must have the opportunity to
4 present a defense. And this is all we have left.
5 Thank you.
6 MJ: I will take those two witnesses under advisement as well, and I will give rulings for those
7 two witnesses as well by this afternoon.
8 CDC: Thank you, Your Honor.
9 We just have some other minor logistical things. If Your Honor would allow, I'll defer to
10 Major Kemkes.
11 MJ: Proceed.
12 DC: Your Honor, I've discussed it with Lieutenant Colonel Lakin, and I'm not sure what the
13 government has told the panel members so far, but we would like to request that the unifonn be A's.
14 MJ: Any objection?
15 TC: Just to clarifY, ma'am, by A's, do you mean Class A's and/or the Anny Service Unifonn?
16 DC: That's correct, yes, Your Honor.
17 MJ: Any authorized Class A unifonn.
18 DC: Yes, ma'am.
19 MJ: The unifonn will be Class A's.
20 Anything else?
21 TC: Your Honor, to the extent that the court wishes additional arguments specific to Dr.
22 Keyes, the govemment has the same types of arguments regarding the nature of expert testimony and its
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relevance to this case, and we'd argue that any bolstering of the accused's motive by Dr. Keyes, based
on the argument that it is particularly important in this time in history for the accused to do it, or
whatever other proffer the accused has offered, is improper expert testimony and irrelevant as well.
MJ: Anything else from either side? Any other issues we need to address before I take these
issues under advisement?
CDC: No, Your Honor, thank you.
TC: No, Your Honor. The parties are going to get together to confirm which three of the five
Afghanistan witnesses; just to note that the government is going to I;llake sure that those witnesses are
available, and ifthere's any problems, we'll bring it to the court's attention.
But that's the last remaining aspect of the prior ruling that we didn't discuss today, which
is which one of the defense witnesses they're going to choose. Barring discussion of that, there's
nothing else.
MJ: We'll reconvene at 1430, and I'll issue rulings.
Court is in recess.
[The session recessed at 1333,28 September 2010.]
[The session was called to order at 1437,28 September 2010.]
MJ: This Article 39(a) session is called to order.
Let the record reflect all parties present when the court last recessed are again present in
court.
For the record, counsel and I met before the recess in what we call an RCM 802
conference; what that is is where I go over with counsel, in chambers, scheduling and logistics issues in
cases, and we put that on the record in the next open session.
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1 What I discussed with counsel was that I had not made a ruling on the defense request for
2 a continuance of the trial date, but I was looking at the dates in consideration ofthat request of the 3
fd
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34th and 5
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of November. I'd asked the parties in chambers ifboth sides would be available on those
4 dates. Both sides advised me, yes, understanding that this was sprung on them at the last minute, and
5 would take the recess to ensure that was still the case.
6 Government?
7 TC: We've confirmed the availability of the courtroom, and the government would be
8 available, in the event that the court continued the trial.
9 MJ: How about the defense?
10 CDC: We are still available.
11 MJ: No witness issues, is that correct?
12 TC: Yes, Your Honor, none that we're aware of.
13 CDC: I couldn't get through to General McInerney; I don't anticipate any issues.
14 MJ: The court is prepared to rule on that motion, understanding that the writ was filed
15 yesterday, and understanding the prejudice to the government in having to rearrange the logistics in this
16 case - nonetheless, the court will grant the continuance to the 3
fd
, 4th and 5
th
of November, 0900, here at
17 Fort Meade.
18 The parties are advised that both the Army Court of Criminal Appeals and the Court of
19 Appeals for the Armed Forces have the authority to order this court to stay proceedings, but this will be
7
0
tk./c:::
the last continuance that I give with respect fthy.issues. Are both sides clear on that?
21 CDC: Yes, Your Honor, thank you very much.
22 TC: Yes, Your Honor, that's clear.
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MJ: With respect to the remaining motions ­
a) The government has moved for judicial notice of Anny Regulation 600-8-105,
Military Orders, dated 28 October 2004, and Department of the Anny Personnel Policy Guidance for
Overseas Contingency Operations, Chapter 11, dated 1 July 2009;
b) An interlocutory detennination as to whether the three orders charged in Specifications
1-3 of Charge II are lawful orders;
c) An order to preclude the defense from raising the following irrelevant issues to the
trier of fact in the case on the merits:
One, the eligibility of President Barack Obama to serve as president, and exclude any
documentary or testimony evidence of any sort concerning the eligibility of President Obama to serve as
president; and has moved for the court's interlocutory detennination ofthe lawfulness ofthe orders in
Specifications 1-3 of Charge II, and for the merits and sentencing portions of the trial; and
Two, the motive or motives for the accused's conduct, to include any claim of
conscience, duty, religion, morality, ethics or personal philosophy; the accused's patterns of belief; and
to exclude any documentary or testimonial evidence of any sort concerning the accused's motive, world
views, or personal beliefs.
Two, the defense does not oppose the motion for judicial notice.
Three, the defense responds to the government's motions by requesting this court deny
the government's motions because the accused's defense is the truth ofthe assertion that President
Obama is ineligible to hold office and to give orders, which resulted in the orders the accused is charged
with disobeying, and that the accused's conviction that he was following his duty by disobeying the
orders at issue in Specifications 1-3 of Charge II is relevant at trial.
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Four, the defense also requests that the court defer ruling on the government's motion in
limine until the defense actually seeks to offer matters into trial on the merits.
Five, the defense requests the court take judicial notice of:
One, remarks by the President in "Address to the Nation on the Way Forward in
Afghanistan and Pakistan," 1 December 2009, Eisenhower Hall Theater, United States Military
Academy at West Point, New York;
DA Pam 10-1, Preface and Chain of Command Chart;
US Department of State 7 F AM 1131.6-2;
Senate Resolution 511, 11 oth Congress, 2
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Session, agreed to 30 April 2008;
10 United States Code 162(b);
Article II, Section 1, US Constitution; and
Hawaii Revised Statute Section 338-17.8.
Six, the defense posits that this court was incorrect in its 2 September 2010 ruling that the
orders were lawful, and in applying the political question doctrine. The defense argues that even if the
court rules that an order is a lawful order, as an interlocutory question, there is a factual issue whether
the orders are lawful, and that issue should be submitted to the members.
Seven, at oral argument, the defense asserted that the evidence of the accused's motives,
his prior attempts to seek verification of the President's original birth certificate, and his belief that he
has no duty to obey military orders, and the reasons he believes he has no duty to obey military orders,
. are relevant for his "good soldier" defense.
Having received the briefs and supporting evidence filed by the parties, and having heard
oral argument, the court finds and rules as follows
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The government motion for judicial notice - the defense does not oppose the motion for
judicial notice, and the court grants the government request for judicial notice.
The government motion for interlocutory resolution of lawfulness of orders
One, on 2 September 2010, the defense advised this court that the sole challenge to the
legality of the orders at issue in Specifications 1-3 of Charge II is that President Obama is ineligible to
hold the Office of President, and as such, any orders issued by military authorities while is president are
unlawful orders, and service members have no duty to obey any such orders. The defense argues that
any orders in furtherance of the President's decision to deploy additional troops to Afghanistan are
similarly unlawful, with no concomitant duty of service members to obey them;
Two, the court reaffirms its 2 September 2010 ruling and the rationale contained in it;
Three, each of the three orders at issue in Specifications 1-3 of Charge II, if such orders
were given, were lawful orders.
The government motion in limine ­
The court is ruling on the government's motion prior to trial. It is important in this case
that all of the parties are clear in advance of trial as to what evidence will be admitted during the merits,
and what evidence will not;
Two, the government requests that the defense be precluded from introducing evidence
regarding: one, the eligibility of President Barack Obama to serve as president, and to exclude any
documentary or testimonial evidence of any sort concerning the eligibility ofPresident Obama to serve
as president; and two, the motive or motives for the accused's conduct, to include any claim of
conscience, duty, religion, morality, ethics or personal philosophy, the accused's patterns of belief, and
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to exclude any documentary or testimonial evidence of any sort concerning the accused's motives, wO:'ld
views, or personal beliefs;
Three, for purposes of this motion, the court reaffirms its ruling of 2 September 2010, and
the rational in it - one, the eligibility of President Barack Obama to serve as president, and to exclude
any documentary or testimonial evidence of any sort concerning the eligibility of President Obama to
serve as president;
One, the Secretary of the Army has promulgated numerous Army regulations pursuant to
his authority under 10 US Code 3013; these Army regulations provide an independent authority for
military officers to issue lawful orders. Authority for officers to issue lawful military orders may be
based on law, regulation or custom of the service. Manual for Court-Martial, Part IV, paragraph
14(c)(2)(A)(iii). Authority of military officers to issue lawful orders, and the concomitant duty of
military service members to obey such lawful orders does not depend on whether the president is
qualified under the Constitution to hold office;
Two, any suggestion by the defense that the authority of military officers to issue lawful
orders ceases to exist if a serving president is found to be unqualified by the Constitution to hold office
is an erroneous view of the law. Similarly, any suggestion by the defense that if the president is found to
be unqualified by the Constitution to hold office, service members have no duty to follow any orders
issued by their military superiors is erroneous;
Three, the orders at issue in Specifications 1-3 of Charge II are alleged to be authorized
by Lieutenant Colonel William Judd, Colonel Gordon Roberts and Colonel Peter McHugh, respectively.
Whether President Obama is a natural-born citizen, or is otherwise qualified under the Constitution, is
not relevant to determine whether the orders charged are lawful orders;
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Four, the the orders at issue in Specifications 1-3 of Charge II ordered Lieutenant Colonel
Lakin to report to the office of his brigade commander, Colonel Gordon R. Roberts, in Specification 1;
to report to the Office of the Medical Center Brigade Commander at 1700 on 31 March 2010 in
Specification 2; and to report to Fort Campbell, Kentucky not later than 1500 hours on 12 April 2010 in
Specification 3. Whether President Obama is a natural-born citizen, or is qualified under the
Constitution to hold office, is not relevant to determine whether any of these three orders constitutes a
palpably illegal act, or whether Lieutenant Colonel Lakin had any duty to obey those orders.
Ruling-
The government's motion to preclude the defense from introducing evidence during the
merits regarding the eligibility of President Barack Obama to serve as president, and to exclude any
documentary or testimonial evidence of any sort concerning the eligibility of President Obama to serve
as president, is granted.
Prong two motive or motives for the accused's conduct, to include any claim of
conscience, duty, religion, morality, ethics, or personal philosophy, the accused's patterns of belief, and
to exclude any documentary or testimonial evidence of any sort concerning the accused's motives, world
views or personal beliefs:
One, there's a distinction in the law between motive and intent. Intent is a person's
immediate goal, while motive is a person's ultimate goal. United States v. Hnet-Vanghn, 43 MJ 105,
Court of Appeals for the Armed Forces, 1995. As an example, a person may steal food from a store to
feed his family; his intent was to steal the food. He steals the food in order to further his motive to feed
his family. The fact that his motive was to feed the family does not negate his intent to steal the food.
In prosecutions for larceny, the government would have to prove the person's intent to steal; a person's
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motive to feed his family is relevant only to the extent that it provides circumstantial evidence of intent
to steal, or presents a viable defense. See United States v. Diaz, 69 MJ 127, Court of Appeals for the
Armed Forces 2010; United States v. Rockwood, 52 MJ 98, Court of Appeals for the Armed Forces
1999; United States v. Huet-Vaughn, 43 MJ 105, Court of Appeals for the Armed Forces 1995;
Two, similarly, in this case, the accused's motive is relevant only to the extent it provides
circumstantial evidence of the accused's intent, or it presents a viable defense;
Three, under the Manual for Courts-Martial, "The dictates of a person's conscience,
religion or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order."
Manual for Court-Martial, Part IV, paragraph 14(c)(2)(A)(iv). "An order requiring the performance of a
military duty or act may be inferred to be lawful, and is disobeyed at the peril of the subordinate. This
difference does not apply to a patently illegal order, such as one that directs the commission of a crime."
Manual for Court-Martial, Part IV, paragraph 14(c)(2)(A)(i) and (iv).
"It is not a defense for a service member to claim that an order is illegal based on his
interpretation of applicable law. A personal belief that an order is unlawful is not a defense to a
disobedience charge. The defense has the burden to prove illegality, unless the order is palpably illegal
on its face. The duty to disobey an unlawful order applies only to a positive act that constitutes a crime
that is so manifestly beyond the legal power or discretion of the commander as to admit of no rational
doubt of the order's unlawfulness." United States v. New, 55 MJ 95 at 108, Court of Appeals for the
Armed Forces 2001;
Four, although the defense in their brief does not refer to these offenses by name, the
factual predicate of the defense response to the government motion in limine suggests that the defense is
arguing that the evidence raises potential defenses ofjustification and necessity;
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Five, the defense brief, in essence, argues that because the accused sought to seek
verification ofthe President's original birth certificate through a letter to the President, and complaints
under Article 138, Unifonn Code of Military Justice, and by communications with the Department of
Defense Inspector General, and was unsuccessful, this raises the defense ofjustification and/or
necessity, and negates his duty to obey the orders at issue in this case;
Six, "The justification defense excuses a death, injury, or other act caused or done in
properperfonnance onegal duty." United States v. Rockwood, 52 MJ 98, 1999. The lack of success
ofthe accused in discovering the official birth certificate of the President does not negate the duty of an
accused to obey lawful orders. The defense ofjustification is not raised by the facts ofthis case;
Seven, the necessity defense is not specifically recognized in the Manual for Courts-
Martial, although the Court of Appeals for the Anned Forces has stated that the necessity defense can
apply under circumstances where an accused is forced to commit a crime because of a threat of serious
imminent hann to the accused or another. An example typically used in describing the necessity defense
is where a person must trespass on another's property to rescue someone drowning in a pond. In this
case, there's no evidence of serious imminent hann to the accused or another, thus, the defense of
necessity is not raised;
Eight, at oral argument, the defense asserted that evidence that the accused believed he
did not have a duty to obey the orders at issue because he did not believe President Obama was qualified
under the Constitution to serve as President, and the underlying foundations fonning that belief, are
relevant as part of his "good soldier" defense;
Nine, the "good soldier" defense allows an accused to bring his good military character
as evidence before the members. When evidence of character or a trait of character of the person is
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admissible, proof may be made by testimony as to reputation, or in the form of an opinion; specific
instances of conduct are allowable only on cross-examination, or when the character or trait of character
is an essential element of an offense or defense. Military Rule of Evidence 405( a) and (b). Character is
not an essential element to a "good soldier" defense, such that proof could be made by reference to
specific instances of conduct. See United States v. Schelke, 47 MJ 110 at 112, 1997 Court of Appeals
for the Armed Forces;
Ten, evidence that the accused believed that he did not have a duty to obey the orders at
issue because he did not believe President Obama was qualified under the Constitution to serve as
President, and the underlying foundations forming that belief, is not opinion evidence. It is not
admissible on direct examination in the "good soldier" defense.
Rulings-
One, the government motion to preclude the defense from introducing evidence during
the merits regarding the accused's motives to exclude any claim of conscience, duty, religion, morality,
ethics or personal philosophy, and the accused's pattern of belief, is granted;
Two, the government's motion to exclude documentary or testimonial evidence of any
sort regarding the accused's motives, world views or personal beliefs regarding the case on the merits is
granted;
Three, based on the above rulings, as well as the 2 September 2010 rulings of this court,
the defense's request for judicial notice is denied as to the merits portion of the trial;
Four, the court ruled on 2 September 2010 that the merits of whether President Obama is
a natural born citizen, and whether he is qualified under the Constitution to hold office are not logically
relevant under Military Rule of Evidence 401 for the interlocutory question of the legality of the orders,
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1 the merits portion of the trial, or the sentencing portion of the trial. Even if they were logically relevant,
2 judicial review of these issues by this court-martial is precluded by the political question doctrine. Thus,
3 even iflogically relevant under Military Rule of Evidence 401 for the sentencing phase of the trial, those
4 issues are not legally relevant under Military Rule of Evidence 402, and not admissible under Military
5 Rule of Evidence 403. The court will not compel production of any witnesses or evidence requested by
6 the defense that relates to the merits of whether President Obama is a natural born citizen, or whether he
7 is qualified under the Constitution to hold office;
8 Five, the motives of the accused's conduct, to include any claim of conscience, duty,
9 religion, morality, ethics or personal philosophy, the accused's patterns of belief, and the formation of
10 the accused's motives, world views or personal beliefs are relevant in the presentencing phase of the
11 trial, should this case proceed to that phase, in aggravation, extenuation and mitigation, subject to the
12 constraints of Military Rule of Evidence 403;
13 Six, neither Dr. Keyes nor Lieutenant General McInerney will testify before the members
14 as expert witnesses regarding legal issues, or their personal beliefs regarding what the law is, or what the
15 facts in this case are. As in all other cases, the court instructs the members as to the law, and the
16 members decide questions of fact;
17 Seven, if the defense can articulate a basis for testimony by Lieutenant General
18 McInerney that is proper extenuation and mitigation testimony for example, if the accused discussed
19 his motives with Lieutenant General McInerney on or prior to 12 April 2010, and received guidance
20 from him, the defense can request that the court reconsider this ruling;
21 Eight, the court will address issues not previously addressed relating to the admission of
22 witness testimony and evidence offered during the presentencing phase at triaL
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Do either ofthe parties have anything to address before we recess the court?
TC: Nothing from the government, Your Honor.
CDC: No, Your Honor.
MJ: I forgot to ask - does either side have anything to add to the RCM 802 conference?
CDC: No, Your Honor.
TC: No, Your Honor.
MJ: As there is nothing else to address, court is in recess.
[The session recessed at 1456,28 September 2010.]
[END OF PAGE]
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1 [The session was called to order at 1357, 13 October 2010 at Fort McNair, Washington, DC.]
2 MJ: This Article 39(a) session is called to order.
3 Trial counsel?
4 TC: Mr. Mongovin has replaced Mr. Bulavko as the court reporter in this case.
5 MJ: Are the rest of the parties who were present present at the last session?
6 TC: Negative, rna' am.
7 In addition, Mr. Neal Puckett is present, and Mr. Paul Jensen is not present.
8 MJ: Thank you.
9 Have there been any changes in the convening orders?
10 TC: No, Your Honor.
11 MJ: Lieutenant Colonel Lakin, back at the arraignment on 6 August 2010, I went over your
12 rights to counsel with you. At that time, I told you you have the right to your detailed military defense
13 counsel, Major Kemkes; you had the right to request an individual military defense counsel of your own
14 selection; and you had the right to be represented by civilian counsel at no expense to the government.
15 At that time, you advised me that you wanted to be represented by Mr. Paul Jensen and
16 Major Kemkes. Would you like me to repeat any of the discussion of your rights to counsel?
17 ACC: No, ma'am.
18 MJ: You understand you rights to counsel?
19 ACC: Yes, ma'am.
20 MJ: By whom do you wish to be represented?
21 ACC: I have discharged Mr. Jensen, and I have retained Neal Puckett as my new civilian
22 counsel.
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MJ: So, Mr. Jensen, who has represented you up until the proceedings today as your civilian
defense counsel, you affirmatively consent to his discharge?
ACC: Yes, ma'am.
MJ: Mr. Puckett, is there a writing to that effect?
CDC: There is not, Your Honor, but we can prepare a memorandum as an appellate exhibit for
the record. [A memorandum was later marked AE XXIII.]
MJ: Thank you.
I find under Rule for Court-Martia1506(c) that Lieutenant Colonel Lakin has expressly
consented for the withdrawal of Mr. Jensen as counsel, and you advised me that you wished to be
represented by Mr. Puckett and Major Kemkes, is that correct?
ACC: Yes, ma'am.
MJ: By them alone?
ACC: Yes, ma'am.
MJ: Mr. Puckett, please announce your detail and qualifications for the record.
CDC: Yes, Your Honor.
My name is Neal Puckett. I practice from Alexandria, Virginia. I am previously certified
in accordance with Article 27(b) and sworn in accordance with Article 42(a); I'm also certified in
accordance with Article 26(b) and (c) ofthe Uniform Code ofMilitary Justice, when I was on active
duty. I've acted in no disqualifying capacity. I'm also admitted to practice, and am in good standing,
before the highest courts of the Commonwealth of Virginia, the State of Indiana, the Court of Appeals
for the Armed Forces, and the Eastern District of Virginia. I'm making my first appearance today in this
court for Lieutenant Colonel Lakin.
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[The civilian defense counsel was sworn.]
I note for the record that Appellate Exhibit XXII is the US Army Court of Criminal
Appeals denial of the petition for extraordinary relief, dated 12 October 2010.
For the record, counsel and I met in an RCM 802 conference just prior to coming into
court today; Lieutenant Colonel Lakin, we've talked about this before. What that is is where I go over
scheduling and other such matters that arise in cases.
During that session, I asked both sides to look at their calendars to see if we needed to
adjust the trial schedule, based on your desire to have Mr. Puckett represent you, and in light of what he
has had scheduled.
Mr. Puckett, would you like to explain for the record what you have scheduled?
CDC: Yes, Your Honor.
I'd like to put on the record that I would've made every attempt to be prepared to proceed
on the original trial schedule. However, at the time that I was retained by Lieutenant Colonel Lakin, I
already am scheduled to be in a very lengthy court-martial to begin on 2 November; it is docketed to last
3 weeks. I believe it will take all of those 3 weeks. My schedule is consumed up until close to
Thanksgiving. I represented that at any time after that, I could be available. So, that's my conflict.
MJ: Thank you.
CDC: And therefore, request a continuance.
MJ: The court is going to grant that continuance. We discussed the scheduling issue with
both sides, and this case is continued and will be tried on Tuesday, Wednesday and Thursday 14, 15
and 16 December. Is that schedule acceptable to both sides?
TC: Yes, Your Honor.
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CDC: Yes, Your Honor.
Is there a time to begin?
MJ: 0900.
CDC: Thank you, ma'am.
MJ: Major Kemkes, you advised me in the last session that the defense would request that the
court-martial be conducted in Class A uniform. Is that still the defense's request?
DC: Y es, Your Honor.
MJ: That is granted.
Also in the RCM 802 conference, the defense advised me that it had certain challenges to
Specifications 3 and 4 of Charge II.
CDC: Yes, Your Honor.
MJ: I've advised both sides to brief the court on that issue. I believe the defense contention is
that Specification 4 stands in a lesser-included offense status of Specification 3 of Charge II.
CDC: That's accurate, Your Honor.
MJ: I advised both parties, in light of the Court of Appeals of the Armed Forces decision in
US v. Jones with respect to lesser-included offenses in charging to look at that, and briefthe court by
next Friday, which would be the 22
nd
of October.
Would either side desire to add anything to the synopsis of the court?
TC: Nothing from the government, Your Honor.
CDC: Nothing from the defense, Your Honor.
MJ: Is there anything else that we need to address?
TC: No, Your Honor.
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CDC: No, Your Honor.
MJ: Court is in recess.
[The session recessed at 1408, 13 October 2010.]
[END OF PAGE]
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[The session was called to order at 0920, 14 December 2010.]
MJ: This Article 39(a) session is called to order.
Trial counsel?
TC: Your Honor, all parties present when the court last recessed are again present, with the
exception ofMr. John Mongovin, court reporter - he is absent. Mr. Leo Bulavko is present as court
reporter, and he has been previously sworn.
MJ: Thank you.
Pursuant to Rule for Court-Martial 806( c), I am allowing contemporaneous closed-circuit
video transmission of the proceedings to another room to permit viewing by additional spectators, to
ensure maximum public trial access.
Lieutenant Colonel Lakin, we have had several proceedings in this case so far. At the last
proceeding, which my records indicate was on the 13
th
of October, I believe I readvised you of your
rights to counsel: that is, basically, your right to have detailed military defense counsel represent you;
your right to request an individual military defense counsel represent you; and your right to be
represented by civilian counsel of your own selection, at no expense to the government.
My records indicate that, at that time, you advised the court that you wished to be
represented by Major Kemkes as well as Mr. Puckett. Is that still your selection for counsel?
ACC: Yes, Your Honor.
MJ: Would you like to be represented by them alone?
ACC: Yes, Your Honor.
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MJ: Also at the last session, we discussed your rights to forum - your right to be tried by a
court consisting of at least five officer members, or your right to be tried by a court consisting of a
military judge alone.
Have you made your forum selection?
ACC: Yes, Your Honor, I have.
MJ: By what type of court would you like to be tried?
ACC: By members.
MJ: By a court consisting of at least five officer members?
ACC: Yes, ma'am.
MJ: I believe we've had several appellate exhibits added since the last session.
I have Appellate Exhibit XXIV, which is the government response to the defense motion
for appropriate relief, which is I believe the defense moved that Specifications 3 and 4 of Charge II
were an unreasonable multiplication of charges. Appellate Exhibit XXIV is the government's request to
charge the two in the alternative. Appellate Exhibit XXV is an email from Mr. Puckett, stating that the
defense concedes the issue, and will rely on appropriate instructions from the military judge.
Does the government have any amendments to the charges and specifications?
TC: Yes, Your Honor, one amendment, as discussed in the 802.
MJ: What would that be?
TC: To delete the language "or should have known" from Specification 4 of Charge II.
MJ: Mr. Puckett, does the defense have any objection to the government's amendment to
Specification 4 of Charge II?
CDC: No, Your Honor.
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MJ: Would you like to make that amendment?
TC: Yes, Your Honor.
MJ: Does the defense agree that that's a minor change under Rule for Court-MartiaI603?
CDC: We do, Your Honor.
TC: [Amends original charge sheet as described.] The charge sheet is so amended.
MJ: Specification 4 of Charge II is amended to read:
"In that Lieutenant Colonel Terrence L. Lakin, US Army, who knew of his duties, at or
near Washington, District of Columbia, on or about 12 April 2010, was derelict in the performance of
those duties, in that he willfully failed to report to Fort Campbell, Kentucky in accordance with
Temporary Change of Station Order 099-17, dated 9 April 20] 0, issued by Colonel Peter McHugh in
support of Operational Enduring Freedom, as it was his duty to do."
Is there anything else that we need to address before we take Lieutenant Colonel Lakin's
plea?
TC: Nothing from the government, Your Honor.
CDC: Nothing from the defense, Your Honor.
MJ: Counsel and I did meet briefly in what we call an RCM 802 conference. What that is is a
conference where I meet with the lawyers to discuss scheduling and other issues that arise in cases. One
of the issues that the government brought up was the fact that they were going to make this amendment.
Other than basic logistics, I don't believe anything else substantive was discussed.
Does either side desire to supplement my rendition of what occurred during the RCM 802
conference for the record?
TC: No, ma'am.
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MJ: Mr. Puckett, do you want to supplement my discussion of the RCM 802 conference?
CDC: No, ma'am, we find it accurate.
MJ: Accused and counsel, please rise.
[The accused and his counsel did as directed.]
Lieutenant Colonel Terrence L. Lakin, how do you plead? Before receiving your plea, I
advise you that any motions to dismiss, or to grant other appropriate relief, should be made at this time.
Your defense counsel can speak for you.
CDC: Your Honor, Lieutenant Colonel Lakin - first of all, there are no additional motions, and
Lieutenant Colonel Lakin pleads as follows:
To Charge I and the single Specification thereunder: Not Guilty.
To Charge II and the four specifications thereunder: Guilty.
MJ: Please be seated.
[The accused and his counsel did as directed.]
Lieutenant Colonel Lakin, your counsel has entered a plea of guilty for you to the four
specifications of Charge II. Your plea of guilty will not be accepted unless you understand its full
meaning and effect. I'm going to talk to you now about your plea of guilty. You may wish to consult
with your defense counsel prior to answering any of my questions. If you have any questions, feel free
to ask them.
A plea of guilty is equivalent to a conviction, and is the strongest form of proof known to
the law. On your plea alone, and without receiving any evidence, this court can find you guilty of the
offenses to which you've pled guilty. Your plea will not be accepted unless you realize that, by your
plea, you admit every act or omission, and every element, ofthe offenses for which you've pled guilty,
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1 and that you are pleading guilty because you are actually, in fact, guilty. If you do not believe that you
2 are guilty, you should not, for any reason, plead guilty.
3 Do you understand what I've said so far?
4 ACC: Yes, Your Honor.
5 MJ: By your plea of guilty, you give up three important rights, but you give up these rights
6 only with respect to the offenses to which you've pled guilty­
7 First, your right against self-incrimination; that is, your right to say nothing at all;
8 Second, you right to a trial of the facts by this court; that is, your right to have this court­
9 martial decide whether you are guilty or not guilty based upon the evidence the prosecution would
10 present, and any evidence you might introduce;
11 Third, the right to be confronted by, and to cross-examine, any witnesses called against
12 you.
13 Do you have any questions about any of these rights?
14 ACC: No, ma'am.
15 MJ: Do you understand that by pleading guilty, you don't have these rights anymore with
16 respect to the offenses to which you've pled guilty?
17 ACC: Yes, Your Honor.
18 MJ: If you continue with your plea, you'll be placed under oath, and I'll question you to
19 detennine whether you are, in fact, guilty. Anything you tell me can be used against you in the
20 sentencing portion of the trial.
21 Do you understand that?
22 ACC: Yes, Your Honor.
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MJ: If you tell me anything that is not true, your statements can be used against you later for
charges of perjury or making false statements.
Do you understand that?
ACC: Yes, Your Honor.
MJ: Trial counsel, please place Lieutenant Colonel Lakin under oath.
[The trial counsel did as directed and the accused was sworn.]
Is there a stipulation of fact in this case?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: Lieutenant Colonel Lakin, I'm going to explain the elements of the offenses for which
you've pled guilty. By "elements," I mean those facts that the prosecution would have to prove beyond
a reasonable doubt before you could be found guilty, if you had pled not guilty.
When I state each element, ask yourselftwo things:
First, is the element true; and
Second, whether you want to admit that it is true.
After I list the elements for you, be prepared to talk to me about the facts regarding the
offenses.
Do you have a copy of the charge sheet in front of you?
ACC: I do, Your Honor.
MJ: Before we get started, let me ask you a few administrative questions.
What is your full name?
ACC: Terrence Lee Lakin.
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MJ: Are you in the active Army?
ACC: Yes, ma'am.
MJ: How long have you been in the active Army?
ACC: Pushing 17 years.
MJ: Are you a United States citizen?
ACC: Yes, ma'am.
MJ: Let's talk about the charges and specifications that you're pleading guilty to.
Charge II, Specifications 1-3 - In Specifications 1-3 of Charge II, you're pleading guilty
to the offense of failure to obey a lawful order in violation of Article 92, Uniform Code of Military
Justice. By pleading guilty to this offense, you're admitting that the following elements are true and
accurately describe what you did.
Specification 1 ­
One, that a member of the armed forces, namely Lieutenant Colonel William Judd, issued
a certain lawful order to report to the office of your brigade commander, Colonel Gordon R. Roberts at
1345 hours, or words to that effect;
Two, that you had knowledge of the order;
Three, that you had a duty to obey the order; and
Four, that, at or near Arlington, Virginia, on or about 31 March 2010, you failed to obey
the order.
Specification 2 ­
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One, that a member of the armed forces, namely Colonel Gordon R. Roberts, issued a
certain lawful order, to wit: a memorandum signed by Colonel Roberts, dated 31 March 2010, requiring
you to report to the office of the Medical Center Brigade Commander at 1700 on 31 March 2010;
Two, that you had knowledge of the order;
Three, that you had a duty to obey the order; and
Four, that, at Arlington, Virginia, on or about 31 March 2010, you failed to obey the
order.
Specification 3 ­
One, that a member of the armed forces, namely Colonel Peter M. McHugh, issued a
certain lawful order, to wit: Temporary Change of Station Order 099-17, dated 9 April 201 0, issued by
Colonel McHugh, requiring you to report to Fort Campbell, Kentucky not later than 1500 hours on 12
April 2010;
Two, that you had knowledge of the order;
Three, that you had a duty to obey the order; and
Four, that, at or near Washington, District of Columbia, on or about 12 April 2010, you
failed to obey the order.
An order is presumed to be lawful. The essential attributes of a lawful order include:
One, issuance by competent authority, a person authorized by applicable law to give such
an order;
Two, communication of words that express a specific mandate to do or not to do a
specific act; and
Three, the relationship with the mandate to a military duty.
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The officer issuing the order must have authority to give such an order. The
authorization may be based on law, regulation, or custom of the service.
The order must relate to military duty, which includes all activities reasonably necessary
to accomplish a military mission, or safeguard or promote the morale, discipline and usefulness of
members of a command, and directly connected with the maintenance of good order and discipline in
the service. The order may not, without such valid military purpose, interfere with private rights or
personal affairs; however, the dictates of a person's conscience, religion or personal philosophy cannot
justify or excuse the disobedience of an otherwise valid lawful order.
Do you understand the elements and definitions, as I've read them to you?
ACC: Yes, ma'am, I do.
MJ: Do you have any questions about them?
ACC: No, I do not, ma'am.
MJ: Do you understand that your plea of guilty admits that these elements and definitions
accurately describe what you did?
ACC: Yes, ma'am.
MJ: Do you believe and admit that the elements and definitions, taken together, correctly
describe what you did?
ACC: Yes, ma'am.
MJ: I'd like to discuss the offenses with you. Let's begin with Specification 1. Who is
Lieutenant Colonel William Judd?
ACC: He was Deputy Commander of Admin at the Pentagon clinic DiLorenzo Clinic.
MJ: What was his relationship to you?
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ACC: He was a supervisor, as the deputy commander.
MJ: So you fell in within that unit?
ACC: Yes, ma'am, and he was acting on the commander's behalf in his absence.
MJ: Did he give you an order on 31 March 201 O?
ACC: Yes, ma'am.
MJ: VVhathappened?
ACC: He provided a verbal order, and followed it up with a written order, and later, with a
written order from Colonel Roberts.
MJ: Colonel Gordon Roberts is who?
ACC: He's the Medical Brigade commander.
MJ: So he's the Medical Brigade commander, and Lieutenant Colonel Judd is the deputy
commander?
ACC: No, ma'am. The Medical Brigade falls, command-wise - the DiLorenzo Clinic at the
Pentagon falls under Medical Brigade at Walter Reed.
MJ: So, Colonel Roberts is the brigade commander at Walter Reed?
ACC: Yes, ma'am.
MJ: And Lieutenant Colonel Judd is the deputy commander at DiLorenzo?
ACC: Yes, ma'am.
MJ: You fell within the DiLorenzo chain of command that reported to Walter Reed?
ACC: Yes.
MJ: Lieutenant Colonel William Judd what exactly did he tell you to do?
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ACC: He advised me that Colonel Roberts wanted to see me in his office, and I failed to obey
that order.
MJ: What time did he want to see you in his office?
ACC: It was 1345.
MJ: Did you go to his office at 1345?
ACC: No, ma'am, I did not.
MJ: Did you know about the order?
ACC: Yes, ma'am.
MJ: Did Lieutenant Colonel Judd have authority to issue you that order?
ACC: Yes, ma'am, I believe he did.
MJ: Was it a lawful order?
ACC: Yes, ma'am.
MJ: Did you have a duty to obey that order?
ACC: I did, ma'am.
MJ: I believe you testified earlier that at 1345, on or about 31 March 2010, you failed to obey
that order, is that right?
ACC: Yes, ma'am.
MJ: So you didn't go to his office, basically?
ACC: No, ma'am.
MJ: Does either side believe any further inquiry is required with respect to Specification 1 of
Charge II?
TC: Yes, Your Honor.
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The government is aware there are facts in this case that the accused was advised by
counsel not to obey the order. The government would like the court to inquire into that, to insure that he
doesn't believe he had any justification defense, or other facts that justified his disobedience of that
order.
CDC: I join in that request, Your Honor.
MJ: Alright.
Let's go into a little more detail, Lieutenant Colonel Lakin. At the time, you were
consulting with counsel, is that correct?
ACC: Yes, ma'am.
MJ: About what?
ACC: [No response.]
MJ: I don't want to go into attorney-client privileged matters; let me be a little more narrow
with respect to that.
Had you earlier advised your chain of command that you had certain concerns?
ACC: Yes, ma'am. I advised this chain of command, and my previous chain of command
nearly 2 years ago, I had concerns.
MJ: What were those concerns?
ACC: I had difficulty in delineating that we had a chain of command that was congruent, all the
way to our Commander-in-Chief.
MJ: At the time, were you voicing these concerns to an attorney who was working with you?
ACC: Yes, ma'am.
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MJ: Did you discuss these orders that Lieutenant Colonel Judd let me back up. Did you
have a meeting with Colonel Roberts about this issue before the 31 st of March 201 O?
ACC: The 31 st of March, I'd scheduled an appointment with Colonel Roberts, and attended that
with my counsel at that time. Colonel Roberts had to cancel out, and in his stead, his executive officer
took his place.
MJ: That was the same day as the orders in Specifications 1 and 2 of Charge II?
ACC: That was on the 31
S
\ ma'am.
MJ: So it was the same day? What time did you have your appointment with Colonel
Roberts?
CDC: Give us a moment, Your Honor?
MJ: Yes, please.
[The accused and his counsel conferred.]
ACC: Excuse me, ma'am. I'm confusing my dates. The meeting that I had scheduled with
Colonel Roberts was on the 30
th

MJ: Take your time. It is more important that we get this accurately than we do this fast.
The day before the 31 st, you had your appointment with Colonel Roberts?
ACC: Yes, ma'am.
MJ: You said he wasn't able to make the appointment?
ACC: Right. I don't know what other commitment he had.
MJ: But Colonel Judd did?
ACC: No. Lieutenant Colonel Crockett-Lynn was his Medical Brigade executive officer.
MJ: What happened?
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ACC: My counsel at that time and I presented her with a letter that I had written to our
Commander-in-Chief, asking him to validate that he was eligible to hold the office of Commander-in-
Chief, and that I was planning on disobeying orders until I received proper validation.
MJ: So you told Colonel Crockett-Lynn that you were going to begin disobeying orders until
you received the verification you were seeking?
ACC: Yes, ma'am.
MJ: The following day was the 31 st of March 2010.
ACC: Yes, ma'am.
MJ: Before I get there, your counsel was with you at the meeting on the 30
t
h, is that right?
ACC: Yes, ma'am.
MJ: Who was that counsel?
ACC: It was Paul Jensen.
MJ: When you received. the order from Lieutenant Colonel Judd to report to Colonel
Roberts's office at 1345 on the 31 st of March 2010, did you talk to Mr. Jensen about that?
ACC: Yes, I did, ma'am. He flew back to California and we had several phone calls between
Major Kemkes, Paul Jensen and myself.
MJ: Before we go any further, Mr. Puckett, are you comfortable with I'm getting into
attorney-client privileged matters here with respect to the providence inquiry.
CDC: Ma'am, we anticipate that some of this information is going to come up later, and we'd
rather cover it now rather than you feel a need to reopen providency. So, flesh it out now, so we don't
have to interrupt the flow later. I'm totally comfortable with what we're talking about.
MJ: Lieutenant Colonel Lakin, do you agree with that?
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ACC: Yes, ma'am.
MJ: So, when you discussed with Mr. Jensen this order at 1345, what did you discuss, and
what did you decide?
[The accused and his counsel conferred.]
ACC: Ma'am, honestly, it was a confusing time and very emotional time for me during those
days. There were several conversations on the telephone back and forth. Sometimes, not able to do a
conference call, or military counsel talking to my civilian counsel. At the time, I made the decision that
it was consistent with the path that I was choosing to disobey those orders.
MJ: 1'd asked you the question do you believe that Lieutenant Colonel Judd had the
authority to give you those orders?
ACC: Yes, ma'am, I do.
MJ: Do you believe that those orders - that order, excuse me the order to report at 1345 to
Colonel Roberts's office on the 31
51
of March - do you believe that he had the authority to issue that
order?
ACC: Yes, ma'am, I do.
MJ: Do you believe that that was a lawful order?
ACC: Yes, ma'am.
MJ: Do you believe that you had a duty to obey that order?
ACC: I do, ma'am.
MJ: Do you believe that you had a legal justification or excuse not to obey that order?
ACC: No, ma'am.
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1 CDC: Ma'am, not to put too fine a point on it, but I'd like to flesh it out just a little bit more,
2. and here is what we're going after, just to help guide the court.
3 During this emotional time for Lieutenant Colonel Lakin, he received some initial advice
4 from Mr. Jensen to disobey the order - that was his advice, and his advice was based on that being
5 consistent with the position he'd earlier taken. But Major Kemkes advised him to obey the order. So,
6 he had the benefit of good, sound legal advice, but also some, what I would consider, unsound legal
7 advice.
8 So, again, with the confusion, we don't want the court to interrupt that or to believe that
9 that is being offered as a justification or excuse for the misconduct. It is just that that figured into the
10 calculus of the decision making that went on that day.
11 If the court is satisfied with that proffer, or wants to flesh it out with Lieutenant Colonel
12. Lakin, as the court chooses.
13 MJ: Lieutenant Colonel Lakin, do you agree with what Mr. Puckett just said?
14 ACC: I do. I understand it was my decision, and I made the wrong choice, ma'am. I
15 understand, ma'am, that it is a difficult process for everybody involved. I take it upon myself that I
16 chose the wrong path for these orders.
17 MJ: Lieutenant Colonel Lakin, is what Mr. Puckett said correct? That Mr. Jensen told you to
18 disobey the orders, and Major Kemkes told you to obey the order?
19 ACC: He advised me that it would be consistent with the path - Paul Jensen advised me that it
2.0 would be consistent with the path that I was choosing to disobey the order. Ma'am, I made my infonned
2.1 decision about it, and it was my choosing.
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CDC: Ma'am, ifI may? May I also add that in later conversations prior to disobedience of
order, Mr. Jensen reversed himself and advised Lieutenant Colonel Lakin to - he represented on the
phone that he would never advise his client to break the law or to disobey an order. All we wanted to
point out was there was some initial advice to the contrary.
MJ: What was the advice on the 31 st of March 201 O?
CDC: That's the problem. The initial private conversation with his civilian attorney led him to
believe that he would be choosing a consistent path with his earlier announcement of his intention to
disobey his orders, ifhe disobeyed this order as well. Then when there was a joint conversation
involving Major Kemkes, both counsel civilian and military - said that they could not ethically advise
their client to disobey the law, and he ought to obey the law.
He had, taken together, conflicting advice from one counsel, but solid advice from Major
Kemkes to obey the order to show up to the meeting.
MJ: So, this joint advice'to not disobey the law, did that take place before 1345 on 31 March
2010?
ACC: Yes, ma'am, I believe it did.
MJ: Just to make sure I'm understanding what's going on, and please correct me ifI'm not.
On the 30
th
of March 2010, you had a meeting that was supposed to be with Colonel
Roberts; it actually isn't, he can't go, so you meet with his XO; you tell her that you're going to disobey
orders until you get verification that you seek regarding President Obama. Is that correct?
ACC: Yes, ma'am.
MJ: Those are my words, not yours, but based on earlier proceedings in this case, is that
basically what you sought?
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ACC: Yes, ma'am.
MJ: So, sometime between then and 1345 on the 31
st
of March 2010, both Major Kemkes and
Mr. Jensen told you, at some point, they couldn't ethically advise you to disobey the law. Is that right?
ACC: Yes, ma'am.
MJ: Even though earlier, Mr. Jensen may have had different advice to you. Is that right?
ACC: Yes, ma'am.
MJ: But at some point, there was a conversation, with both of those attorneys saying, 'I can't
ethically advise you to violate the law.'
ACC: Yes.
MJ: You testified earlier that you made a decision at that point. What was that decision that
you made?
ACC: To not obey that order, ma'am.
MJ: What you're talking to me about is whatis known in the law as a mistake in law, which is
not a defense unless certain narrow parameters are met. One way - if you believe the law is something
different than what it actually is, that's not a defense, unless you are relying on decisions or
pronouncements ~ t authoriztpublic officials or agencies. In this case, when you made your decision,
were you relying on anything coming out of your chain of command - Colonel Roberts, Colonel Judd,
or anybody in your legitimate chain of command that said it was okay for you to disobey these orders?
ACC: No, ma'am.
MJ: Do you understand today that mistake of law is not a defense to disobeying the lawful
orders?
ACC: Yes, ma'am.
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1 MJ: Just to clarify - before 1345 on the 31 st of March 2010, you had been advised by both of
2 your counsels that it would be - that you should obey that order because it was a lawful order?
3 ACC: Yes, ma'am.
4 MJ: And you made the decision to disobey it anyway?
5 ACC: Yes, ma'am.
6 MJ: Does either side desire to flesh this out further?
7 TC: Yes, Your Honor, one last clarification, because we believe one of our witnesses will
8 testify Colonel Judd was informed by Mr. Jensen the accused was not going to obey the order. Colonel
9 Judd then went in person to clarify there was not some miscommunication when Mr. Jensen indicated he
10 was in California and couldn't be there. The day before, the accused had brought his counsel with him
11 to meet with the commander - this was not a logistical confusion where some conversation between Mr.
12 Jensen and Colonel Judd meant the accused didn't have to obey the order. Colonel Judd went to the
13 accused in person again, 'Just to clarify, you have to come, this is an order.'
14 The government views those facts as relevant, in light of the colloquy we've heard so far.
15 MJ: Lieutenant Colonel Lakin, here is where I'm getting a little confused. You're having a
16 telephone conversation with Mr. Jensen and Lieutenant Colonel Judd, saying, 'Lieutenant Colonel
17 Lakin, my client, is not going to obey this order. Just letting you know,' how is that consistent with him
18 telling you you should obey it, it is a lawful order? I'm confused.
19 ACC: Ma'am, there were several phone calls, and I was trying to perfonn my duties at the clinic
20 - I was also seeing patients at the time, and you know, phone calls to California to Paul Jensen, and
21 phone calls to Major Kemkes. I'm being advised that any meeting that I had with any commander
22 anything I said or did at those would be held against me. I felt that I didn't have a witness or counsel
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accompanying me on the meetings, and I believe that I was advised by Mr. Jensen that this would be
consistent.
MJ: That what would be consistent?
ACC: My disobeying the orders would be consistent with the path that I was choosing. Also, I
think there was small disclaimers there I'd get on the phone with Major Kemkes, and there would be a
lot more legal disclaimers, too. I understand that I was confused at the time, and I was trying to choose
correctly, and I chose incorrectly and disobeyed those orders, ma'am.
MJ: At the time, on the 31 st of March 2010 at 1345, did you believe that you had a legal
justification or excuse under the law not to obey those orders?
ACC: No, ma'am.
MJ: Do you, today, believe that you had the legal justification or excuse not to obey the order
to report to Colonel Roberts's office at 1345 on the 31 st of March 201 O?
ACC: No, ma'am.
MJ: Does either side wish any further inquiry?
TC: I'm not sure what further inquiry is going to do, Your Honor. The defense just brought
up an additional potential confusion or justification that he was told that might incriminate himself, and
that he wasn't able to bring his counsel. Just to clarify, that wasn't a justification not only the advice
of counsel, but that he had to go by himself, and his counsel was not going to be there, was not any
separate justification to disobey the order. I believe it will be clear then, Your Honor, but the
government is concerned with some ofthe issues the accused is bringing up as to his providency.
I believe that clarification will remove the last concern for the government.
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MJ: Again, as I said earlier, the important thing in this case is that we get this correct, not that
we do this quickly.
Lieutenant Colonel Lakin, on the 30
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of March 2010, you have advice from Major
Kemkes that is straight all the way along - the order is legal, and you have to - the 31 st of March, excuse
me - 2010, you have to obey it; you have conflicting advice from Mr. Jensen, who would does he
share your concern with respect to your ultimate goal in this case? Basically, achieving the
documentation that you want from President Obama?
ACC: Yes, he believes there was a valid question of that.
MJ: During the course of that discussion, you made the decision that you're not going to obey
the order of Lieutenant Colonel Judd. Now, you testified earlier, and the government counsel has just
made reference, to the fact that you were confused, you were seeing patients, you were in touch with
counsel, how does that play in your mind with respect to what you were thinking about with obeying or
not obeying the order by Lieutenant Colonel Judd to report to Colonel Roberts's office?
ACC: I'm sorry, ma'am? Can you rephrase that?
MJ : You had testified that Mr. Jensen was in California?
ACC: Yes, ma'am.
MJ: And you were on the phone with your lawyers, but you didn't have anyone with you on
the 31 st of March 2010; so you didn't personally meet with either counsel, is that right, on that day?
ACC: On the 31 st?
MJ: Yes.
ACC: No, ma'am.
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MJ: You said that you were confused, you were seeing patients - did you try to meet with
either of them?
ACC: I believe Major Kemkes was only available by phone, and Paul Jensen was available
from California by phone.
MJ: How did this affect your decision to disobey the order? That's what I'm not clear with.
ACC: [After conferring with CDC.] Ma'am, the phone calls that were occurring between my
military counsel, Major Kemkes, and Paul Jensen, the civilian counsel, went back and forth. I'd never
disobeyed orders like this before, it was very emotional for me. I believe that civilian counsel was
helping me with this process, and was advising me on consistency with the actions that I was choosing
to take. The phone conversations would be small disclaimers that I could not be advised to disobey
orders, but if I would, that would be consistent with the actions I was taking. Then a phone call with
Major Kemkes and Paul Jensen both on the line. Certainly, there was a much larger legal disclaimer that
I was not being advised by Paul Jensen to disobey orders. He would never advise me to do that, but
again, it was my choice to choose to have some consistency and disobey them.
MJ: So, am I understanding correctly what you're saying? Are you telling me that Mr. Jensen
told you, before you made the decision to disobey the order by Lieutenant Colonel Judd to go to Colonel
Roberts's office at 1345 on the 31
st
of March 2010 - are you saying that at some point, Mr. Jensen had
told you that even though it would be consistent with yours and his goal to get the documentation that
you sought from President Obama to disobey the orders, he couldn't ethically tell you to disobey a
lawful order, as an attorney.
Is that what I'm hearing you tell me, even though it would be consistent with the goals
that you both sought?
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ACC: [No response.]
MJ: I'm not trying to put words in your mouth. I want you to tell me what it is that happened.
ACC: Ma'am, I would agree with that, understanding that it is not Mr. Jensen's - I didn't care
what his goals were. I sought some proof oflegitimacy by myself, and it was my actions.
MJ: I understand that.
When you made the decision to disobey the order, had you been advised by both Mr.
Jensen and Major Kemkes that you would be disobeying a lawful order?
ACC: Yes, ma'am.
MJ: And armed with that advice, are you telling me that you made the choice to disobey the
order anyway?
ACC: Yes, ma'am.
TC: Ma'am, that plan to disobey was communicated by counsel to the chain of command, and
Colonel Judd then reengaged with the accused and said, 'No matter what conversations you had with
your attorney, this is an order, you must obey it,' and we'd like the accused to acknowledge that that
happened.
MJ: Let's talk about that.
Colonel Judd initially gives you a memorandum, or does he just tell you that you have to
go at 1345?
ACC: He told me verbally, I believe, twice.
MJ: You know it was an order; I mean, it wasn't a suggestion?
ACC: Yes, ma'am.
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MJ: At some point, again, did he come back, after having a conversation with Mr. Jensen, and
talk to you yet again about that order?
ACC: I believe so, ma'am.
MJ: What happened?
ACC: Throughout this day, he came into my office twice, I think. First, I was being requested,
and then he came back and confirmed that I was receiving an order from Colonel Roberts to go to his
office.
MJ: Did he, at some point, tell you that he had talked to Mr. Jensen?
ACC: Yes, I think there was at least one phone call, maybe two phone calls.
MJ: Between who and who?
ACC: Between Mr. Jensen and Colonel Judd.
MJ: After this phone call or two, did Colonel Judd come to see you?
ACC: Yes, ma'am.
MJ: What did he say?
ACC: He confirmed that I understood this was an order, and at another point, he presented me a
memorandum from Colonel Roberts, directing me to report to his office.
MJ: Did he say anything with respect to what Mr. Jensen told you, versus it being an order or
not being an order?
ACC: I'm sorry?
MJ: Did he say anything about did he reference his conversations with Mr. Jensen over the
phone with you?
ACC: Yes, ma'am, I believe he did.
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1 MJ: What did he say about them?
2 ACC: He said that Mr. Jensen and told Colonel Judd that I was not going to obey the orders,
3 and I confirmed that.
4 MJ: Did Colonel Judd tell you anything else about that this wasn't an order; that
5 notwithstanding Mr. Jensen said, you wouldn't obey the order, anything of that nature?
6 ACC: I'm sorry, ma'am?
7 MJ: After the conversations with Mr. Jensen, Lieutenant Colonel Judd sought you out again?
8 ACC: Yes, ma'am.
9 MJ: Why?
10 ACC: He wanted to present me a written memorandum from Colonel Roberts with his signature
11 that I was to report, and to ask me ifhe could even accompany me, or escort me up there.
12 MJ: Was that after the 1345 meeting where you didn't show up, or was that before that,
13 because there's two different meetings on the 31 st.
14 CDC: Ma'am, the reference to the memo involves Specification 2; he is running them together,
15 because it is on the same day - just for clarification.
16 MJ: Let's do it this way. Since both of these orders are on the same day, let's go through and
17 talk about Specification 2, and then we'll come back and we'll talk about this entire issue with respect to
18 Mr. Jensen.
19 You told me that you made the decision, after speaking with both Major Kemkes and Mr.
20 Jensen, and both of them told you they couldn't ethically advise you to disobey a lawful order, but you
21 were going to disobey it anyway. Is that fair?
22 ACC: Yes, ma'am.
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1 MJ: And then, after you don't go to Colonel Roberts's office at 1345, what happens next?
2 ACC: Again, several phone conversations.
3 MJ: Between who and who?
4 ACC: Between myself and Major Kemkes and Paul Jensen.
5 MJ: This is after you - after you haven't shown up at 1345, there's more phone conversations,
6 is that right?
7 ACC: Yes, rna' am. Along that way, I was - I believe I was seeing patients, and taking care of
8 medical admin work. It was emotional for the chief nurse - she was there as a witness for Colonel Judd
9 for some conversations, too.
10 MJ: How many times do you think you saw Colonel Judd that day with respect to his coming
11 in and telling you you really have to go?
12 ACC: Five or six times, ma'am.
13 MJ: At some point after you didn't go at 1345, did he show up with a memorandum?
14 ACC: Yes, ma'am, I believe he did.
15 MJ: You believe, or he showed with a memorandum?
16 ACC: Yes, he showed up with a memorandum.
17 MJ: Did you see it?
18 ACC: Yes, ma'am.
19 MJ: What did it say?
20 ACC: It was a memorandum from Colonel Roberts, giving me a command to report to his
21 office.
22 MJ: Did he just hand the memorandum to you, or did he say anything to you?
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1 ACC: I believe he followed up and said, 'Do you understand that this is an order from Colord
2 Roberts?'
3 MJ: And you said he brought the chief nurse as a witness with him?
4 ACC: Throughout a few of the meetings, yes.
5 MJ: Why do you think he did that?
6 ACC: As a witness that he was providing me a legal order.
7 MJ: Did you go to Colonel Roberts's office at 1700 on the 31
st
of March 201O?
8 ACC: [After conferring with CDC.] Ma'am, that was - I had agreed to go up, and I drove up to
9 Walter Reed, I was in the area. Around that time, I spent some time in the chapel. At that time, I
10 continued to choose not to report to his office.
11 MJ: When you said you drove up to Walter Reed, would there have been any other reason for
12 you to be doing that, other than you were thinking about whether you were going to obey that order or
13 not? Would you have been otherwise in the Walter Reed vicinity? Any other reason for you to be there
14 that day?
15 ACC: No, ma'am.
16 MJ: So after 1345, you were thinking about whether you were going to obey the order or not,
17 is that what you're telling me?
18 ACC: Yes, ma'am.
19 MJ: And you went to the chapel?
20 AC: Yes, ma'am.
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MJ: When I was reading you the definitions, one ofthem I read to you was, "The dictates of a
person's conscience, religion or personal philosophy cannot justify or excuse the disobedience of an
otherwise lawful order."
Would it be fair to say that the dictates of your conscience, religion or personal
philosophy made you want to disobey the order?
ACC: Yes, ma'am.
MJ: And the advice that you were given from counsel, did you understand that the order was
lawful, even though you believed in your conscience, religion and philosophy that you wanted to be
consistent, your path to discovering the documentation of President Obama?
ACC: Yes, ma'am.
MJ: Did you understand at the time that failure to report, both for Specification 1 at 1345 to
Colonel Roberts, and for Specification 2, the order to report at 1700 to Colonel Roberts's office, were
lawful orders?
ACC: Yes, ma'am.
MJ: Do you understand now that they are lawful orders?
ACC: Yes, ma'am.
MJ: Did you believe then that you had the duty to obey those orders?
ACC: Yes, ma'am.
MJ: Do you believe now that you had a duty to obey those orders?
ACC: Yes, ma'am, I should have.
TC: One last facet of the legal defense, or the attorney counseling, Your Honor?
MJ: [Affirmative response.]
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TC: In addition to the written order that day, he received and signed a counseling from
Colonel Judd, the second page of which indicated, "My lawyer may address these arid other statements
listed above," creating the perception maybe that he'd deal with the command through his attorney,
etcetera.
MJ: Make it as an appellate exhibit, please.
[A copy of the counseling statement was marked AE XXVI.]
TC: Ma'am, this is subsequent to what the accused said today in this colloquy; that he was
advised by Mr. Jensen to obey the order. That's the disconnect for the government to clarify, that there
was no persistence of this advice.
MJ: I'm looking at Appellate Exhibit XXVI.
Lieutenant Colonel Lakin, do you have a copy of that in front of you?
ACC: Is that the developmental counseling form?
MJ: Bailiff, if you would, please bring Appellate Exhibit XXVI to Lieutenant Colonel Lakin.
[The bailiff did as directed.]
ACC: [Examines AE XXVI.]
CDC: I think we have one, ma'am. We can return this to the court.
[The bailiff returned AE XXVI to the court.]
MJ: Thank you.
Do you recognize this counseling?
ACC: Yes, ma'am.
MJ: When did you get it?
ACC: This was presented to me in Colonel Judd's office on 31 March.
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MJ: Do you remember what time? Was that before or after the 1345 meeting that you did!:'':
show up to?
ACC: I believe it was after, ma'am.
MJ: Just briefly, look at page one there - "On 30 March 2010, this command became aware of
your intentions to refuse to follow deployment orders. Your stated reason for the refusal was your belief
that the election of the President of the United States was invalid because you believed he was not native
born. This counseling is to inform you that your deployment orders are presumed to be valid and lawful
orders, issued by competent military authority. You are reminded to obey those lawful orders, and to
report to Fort Campbell, Kentucky on 12 April 2010 in order to deploy with your unit."
You said Lieutenant Colonel Judd gave you this counseling at some point during the 31 st
of March 2010?
ACC: I believe this was when we were in his office with the Deputy Commander ofNursing as
a witness.
MJ: This was after 1345, when he came in and said, 'I'm giving you a memorandum now to
report to Colonel Roberts's office. This is really an order.'
ACC: Yes, ma'am.
MJ: In your signature block, it says that you disagree with the information above, and, "My
stated reason above is not accurate. My lawyer may address this and other statements already listed
above." What does that mean?
ACC: I especially had problems with the second line in the discussion that said that the
President of the United States was invalid because I believed he was not native born, and I believe that is
different from a natural-born citizen. I think that was agam ---­
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MJ: So when you said you disagreed with the infonnation above, that's the line that you
disagreed with?
ACC: Yes, ma'am.
MJ: Did you agree with the rest of the lines?
ACC: Yes, ma'am.
MJ: So when you stated here your lawyer may address this and other statements listed above,
I'm a little confused by that. If you agreed with it, why was he going to address them?
ACC: I really just meant the line about the native born definition.
MJ: In light of this infonnation from your chain of command that these are orders in the
counseling here, "Failure to follow your reassignment or deployment orders may result in adverse
action," and the rest of the paragraph here, did you know at the time that these orders to go to see
Colonel Roberts - and we'll be talking soon about Specification 3, the orders to deploy were lawful
orders?
ACC: Yes, ma'am.
MJ: Even though Mr. Jensen - Mr. Jensen told you that he couldn't ethically advise you to
disobey a lawful order, is that what you told the court earlier?
ACC: Yes, ma'am.
MJ: Even if that was true, was Mr. Jensen going to work with you if you made the decision to
disobey that order?
ACC: Yes, ma'am.
MJ: What were the choices that you thought you had in mind at the time? When you were at
the chapel, what were you thinking about?
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ACC: I was doing a lot of praying and soul-searching, ma'am. I believed there was a valid
question that needs to be asked and answered for us to have a consistent chain of command. I thought
that I'd tried to use every means possible to ask the question and get an answer, short of disobeying
orders, ma'am.
MJ: If you didn't think you were disobeying a lawful order, why did you need to soul-search,
or did you know that you were disobeying a lawful order?
ACC: [No response.]
MJ: When you were deciding which path to choose, whether to disobey the order and be
consistent with what you were trying to do, or to obey the order and be inconsistent, when you were
making that choice, did you know that the order you were going to consider choosing to disobey was a
lawful order?
ACC: Yes, ma'am.
MJ: Is that why you were wrestling with the decision in the chapel?
ACC: Yes, ma'am.
MJ: When you came out of the chapel, what was the decision that you made?
ACC: I made the decision to disobey it.
MJ: Knowing it was a lawful order?
ACC: Yes, ma'am.
MJ: Knowing that you had a duty to obey it?
ACC: Yes, ma'am.
MJ: Any further clarification for the government?
TC: Can we have a moment, Your Honor?
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1 MJ: Yes.
2 [The trial counsels conferred.]
3 TC: Nothing else on Specification 2, Your Honor. Obviously, as you mentioned some of the
4 circumstances of the counseling statement, it also implicates Specification 3.
5 MJ: What about Specification I?
6 TC: No, ma'am, no further inquiry is necessary.
7 MJ: Are both sides comfortable with that? Would either side like a recess briefly to consider
8 that?
9 CDC: No, ma'am, not a recess to consider that. We're fine.
10 MJ: Does either side believe any further inquiry is required with respect to Specifications 1
11 and 2 of Charge II?
12 TC: Not at this time, Your Honor, based on the providence inquiry.
13 CDC: We agree, Your Honor.
14 MJ: Lieutenant Colonel Lakin, do you admit that a member ofthe armed forces, namely
15 Lieutenant Colonel William Judd, issued a certain lawful order to report to the office of your brigade
16 commander, Colonel Gordon Roberts, at 1345 hours, or words to that effect?
17 ACC: Yes, ma'am.
18 MJ: Do you admit that you had knowledge of the order?
19 ACC: Yes, ma'am.
20 MJ: Do you admit that you had a duty to obey the order?
21 ACe: Yes, ma'am.
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1 MJ: Do you admit that, at or near Arlington, Virginia, on or about 31 March 2010, you faild
2 to obey the order?
3 ACC: Yes, ma'am.
4 MJ: For Specification 2, just to clarify, you had the order in the memorandum signed by
5 Colonel Roberts to report to his office at 1700 on the 31 st of March 2010. Did you report there?
6 ACC: No, ma'am, I did not.
7 MJ: That's when you went to the chapel to think about what you were going to do, is that
8 right?
9 ACC: Yes, ma'am.
10 MJ: Do you admit that a member of the armed forces, namely Colonel Gordon R. Roberts,
11 issued a certain lawful order, to wit: a memorandum signed by Colonel Roberts, dated 31 March 2010,
12 requiring you to report to the office of the Medical Center Brigade commander at 1700 on 31 March
13 2010?
14 ACC: Yes, ma'am.
15 MJ: Do you admit that you had knowledge ofthe order?
16 ACC: Yes, ma'am.
17 MJ: Do you admit that you had a duty to obey the order?
18 ACC: Yes, ma'am.
19 MJ: Do you admit that, at or near Arlington, Virginia, on or about 31 March 2010, you failed
20 to obey the order?
21 ACC: Yes, ma'am.
22 MJ: Let's talk about Specification 3.
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1 Counsel have stated, when we were referring to Appellate Exhibit XXVI, it talks about
2 you receiving deployment orders. What did you receive?
3 ACC: Ma'am, I'd received an RFO several weeks prior to official orders, and I then received
4 orders shortly after that; the orders had a couple of errors in them, especially with the report date. There
5 was lots of efforts to try and get that corrected through the chain of command, to the point of- I had a
6 report date that was coming up quickly that was obviously in error, but no one was changing my orders
7 in a timely manner.
8 MJ: So you get this RFO I understand you probably don't remember the exact date you got
9 it, but these would be the orders on to report to Colonel Roberts's office on the 31 8t ofMarch - did you
10 get your RFO before that?
11 ACC: Yes, ma'am.
12 MJ: About how much before that?
13 ACC: I think that was in the middle of February, I believe.
14 MJ: The RFO had the error,or did the subsequent orders have the error, or both?
15 . ACC: The first copy of orders had the error.
16 MJ: So in February, you get the request for orders?
17 ACC: Yes, ma'am.
18 MJ: And then you actually get your orders approximately when?
19 ACC: The end ofFebruary.
20 MJ: Where did the orders tell you to report?
21 ACC: To Fort CampbelL
22 MJ: What is your report date that you believed was in error?
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1 ACC: I believe the original orders had a report date 2 or 3 weeks prior to the date requested
2 the RFO.
3 MJ: Look at Specification 3. It states that a member of the armed forces, namely Colonel
4 Peter McHugh, issued a certain lawful order, to wit: Temporary Change of Station Order 099-17, dated
5 9 April 2010, issued by Colonel McHugh, requiring you to report to Fort Campbell, Kentucky not later
6 than 1500 on 12 April 2010. Are those the original orders, or are those the orders after you got the
7 report date fixed?
8 ACC: That is the corrected copy, ma'am.
9 MJ: So the original report date was earlier than that?
10 ACC: Yes, ma'am.
11 MJ: And you believed it was inaccurate?
12 ACC: Yes, ma'am.
13 MJ: And you should have a later report date?
14 ACC: Yes, ma'am.
15 MJ: Why?
16 ACC: I believe they made an error on the original orders to have a report date in early-April or
17 late-March; it stated my duty was to begin 12 April, but travel days to report in 2-3 weeks prior to that,
18 ma'am. It was quite an administrative effort for my command to get the orders changed. In fact, the
19 orders were not changed until 2 or 3 days prior to that wrong report date.
20 MJ: Just looking at the specification itself, it says that the orders are dated 9 April, and your
21 report date was 1500 on 12 April. Were these the corrected orders?
22 ACC: That is the corrected orders, ma'am.
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MJ: Had you worked with your chain of command trying to get the orders changed, so you'd
have the proper report date?
ACC: Yes, ma'am.
MJ: Did you actually - you knew you had these orders to report to Fort Campbell, is that
correct?
ACC: Yes, ma'am.
MJ: Even though you were working to change the report date.
The final report date on Order 099-17 of 12 April 201 0, was that the correct report date
that you believed was accurate?
ACC: Yes, ma'am.
MJ: Did you know that you had these corrected orders to report to Fort Campbell?
ACC: Yes, ma'am.
MJ: Did you have a duty to obey those orders?
ACC: Yes, ma'am.
MJ: Did you go to Fort Campbell on the 12th of Apri12010?
ACC: No, ma'am.
MJ: Again, looking at Appellate Exhibit XXVI, the counseling form, which was dated 31
March 2010, it says, "On 30 March 2010, this command became aware of your intentions to refuse to
follow deployment orders." How did you make your command aware that you weren't going to follow
those deployment orders? Or did you?
ACC: [No response.]
MJ: You testified earlier that you and Mr. Jensen met on the 30
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of March?
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ACC: That was the appointment with Lieutenant Colonel Crockett-Lynn.
MJ: Did you talk at all about your deployment orders?
ACC: Yes, ma'am.
MJ: What was the discussion?
ACC: I presented the letter that I'd sent to the Commander-in-Chief requesting validation, or I
was going to choose not to deploy. I believed there was a hostile comment or two from Lieutenant
Colonel Crockett-Lynn at the time, questioning me, and asking me if I was flagged or under any other
administrative problem or investigation, questioning my motives, and questioning my - I believe there
was some question of me being a racist at the time, and me not questioning election results from the
previous election.
MJ: Was that when you advised the chain of command that you were not going to go?
ACC: Yes, ma'am.
MJ: Did you give them a copy ofthe letter?
ACe: No, we showed them the letter.
MJ: Would either side object ifI had a copy of the letter marked as an appellate exhibit for
purposes of this providence inquiry only?
TC: Your Honor, we have a copy of the letter.
Just to clarity, as I believe the accused stated, the original was not given, and a copy was
not given to Lieutenant Colonel Crockett-Lynn - he showed it and took it back. We have a copy that
we've downloaded that we believe is the same letter, but we'll show it to the defense to clarify that it is
not a different one.
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[After the defense counsel inspected the letter, a copy was marked AE XXVII.]
MJ: Mr. Puckett, does the defense have any objection to me having that letter marked as an
appellate exhibit, and using it for purposes of this providence inquiry?
CDC: No, Your Honor.
MJ: I'm looking at Appellate Exhibit XXVII.
Lieutenant Colonel Lakin, do you have a copy of what I have marked as Appellate
Exhibit XXVII?
ACC: We're looking, ma'am.
MJ: Is there a Xerox machine handy?
TC: We have another copy, Your Honor.
CDC: We have one now, Your Honor.
MJ: Lieutenant Colonel Lakin, do you have a copy of what I have marked as Appellate
Exhibit XXVII?
ACC: I believe so, ma'am.
MJ: Please take a look at it, and let me know if- it is the letter dated March 30, 2010, to the
Honorable Barack Obama, and it is signed "Lieutenant Colonel Terrence Lakin, USA." Please just take
a look at that, and advise me if this is the letter that you showed Colonel Crockett-Lynn at the meeting
you had on the 30
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ofMarch 2010.
ACC: [Reviewed copy of AE XXVIL] Yes, ma'am, that is the letter.
MJ: In the final paragraph, it states, "Unless it is established (by this sufficient proof should
be easily within your power to provide) that you are constitutionally eligible to serve as President and
my Commander-in-Chief, I, and all other military officers, may be following illegal orders. Therefore,
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sir, until an original birth certificate is brought forward that validates your eligibility and puts to rest
other reasonable questions surrounding your eligibility, I cannot, in good conscience, obey any military
orders."
This letter was written the day before you made the decision not to obey the two orders
by Colonel Roberts; the letter is dated on the 30
th
of March, the day that you advised Lieutenant Colonel
Crockett-Lynn, as reflected in Appellate Exhibit XXVI, that you were not going to obey your
deployment orders.
Looking at the last paragraph, it says, "I, and all other military officers, may be following
illegal orders." Now, talk to me about this paragraph versus what you're telling me that you knew these
orders were legal.
ACC: [After conferring with CDC.] Ma'am, this was my wrestling with my conscience about
this issue. I believed that the orders from our Commander-in-Chieffor a surge was directly related to
my deployment orders. I wrongly chose to disobey all orders, including the one to report to Colonel
Roberts at the time.
MJ: Are you making a distinction with me with the orders in Specifications 1 and 2 to report
to Colonel Roberts's office, and the order in Specification 3 to report to Fort Campbell?
ACC: [After conferring with CDC.] Ma'am, I this was the problem I was having with my
conscience, and I believed that - I understand that those were lawful orders to report to Colonel Roberts,
and my deployment orders were lawful and I ---­
MJ: Were the orders you got to report to Fort Campbell deployment orders?
ACC: My orders to Fort Campbell were for the purpose of a deployment. I was trying to
address this as best I could to resolve this dilemma that I had.
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MJ: In your last line, it says, "I, and all other military officers, MAY [emphasis added] be
following illegal orders." You showed your letter to your chain of command before you received your
counseling statement on the 26
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\ your chain of command believed these were legal, valid orders. Do
you believe that's why they gave you the counseling statement?
ACC: Yes, ma'am.
MJ: To make sure that you understood their position?
ACC: Yes, ma'am.
MJ: Did you understand your chain of command's position to be that these were legal orders?
ACC: Yes, ma'am.
MJ: Did you receive this counseling statement at Appellate Exhibit XXVI after you showed
your chain of command your letter of the 10
th
in Appellate Exhibit XXVII, your letter to President
Obama?
ACC: Yes, ma'am.
MJ: And it was after your letter to President Obama that you had the conversation with Mr.
Jensen, where he says, 'I can't ethically tell you to disobey a lawful order?'
ACC: Yes, ma'am.
MJ: Did you know, based on this counseling statement, your letter, your visit to the chapel,
and your conversations with Major Kemkes and Mr. Jensen, that the order in Specification 3 to TCS to
Fort Campbell was a lawful military order?
ACC: Yes, ma'am.
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1 MJ: Even though - we talked about, you were in the chapel, wrestling with your conscience
2 on whether you should be consistent with your position or obey the order - even though you made the
3 decision that you were not going to obey the order, did you know it was a lawful order?
4 ACC: Yes, ma'am.
5 MJ: Did you know that you had a duty to obey the order?
6 ACC: Yes, ma'am.
7 MJ: Do you know today that these are lawful orders?
8 ACC: Yes, ma'am.
9 MJ: Do you know and believe today, and testify here under oath, that you believed that you
10 had a duty to obey that order?
11 ACC: Yes, ma'am.
12 MJ: The order I'm talking about is the order in Specification 3, as well as the orders in
13 Specifications 1 and 2; that would be the order to report to Fort Campbell, Kentucky not later than 1500
14 on 12 April 2010.
15 ACC: Yes, ma'am.
16 MJ: Do you believe you had any legal justification or excuse not to obey that order?
17 ACC: No, ma'am.
18 MJ: Just let me clarify, you didn't go to Fort Campbell on or before the 12th of April 2010, is
19 that right?
20 ACC: No, ma'am, I did not.
21 MJ: Does either side believe any further inquiry is required?
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1 TC: Briefly, Your Honor, because it was raised by the accused, just for clarity-sake, about t h ~
2 different erroneous dates. The government believes the accused would testify to knowledge that the
3 original PROFIS selection always contemplated 12 April; that the chain of command quickly realized
4 there was an incorrect report date, and communicated to him that that would be changed, and there was
5 no expectation that he was supposed to report early. So, there's no possibility that he didn't get
6 sufficient notice, and that he received these amended orders, and it was clear to him, well enough in
7 advance for him to comply with them, that that was his responsibility, and that the confusion did not, in
8 any way, affect his ability to obey those orders.
9 MJ: Lieutenant Colonel Lakin, we talked earlier about the orders; and initially, you talked
10 about how you were working with your chain of command to change the report date. Is that right?
11 ACC: Yes, ma'am.
12 MJ: At the time you were working with your chain of command to change the report date,
13 were you intending on obeying the orders?
14 ACC: I had not decided at that time.
15 MJ: You were thinking about obeying the orders. Is that fair?
16 ACC: Yes, ma'am.
17 MJ: So, when you were working with your command to change the report date, were you
18 doing it in good faith? Why change the report dates of an order you were not going to obey anyway?
19 ACC: Yes, ma'am, I didn't have any change of orders until several days - due to that erroneous
20 report date.
21 MJ: So, on the 30
th
of November, when you had the letter to President Obama, and you had
22 the summary ofthe counseling, did you still have the old report date on the 30
th
of March?
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ACC: No, ma'am, it had been changed.
MJ: At that point, your report dates had been changed?
ACC: Yes, ma'am.
MJ: I guess that's where I'm a little confused again, because the actual orders say they were
issued on the 9
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TC: The government has all three in sequence, ifthat would help the court clarify the
questioning; we'd be happy to have them marked as appellate exhibits - the initial order, the first
clarification of March 11 th, and then the final one, because there was an administrative aspect in the
corrected order that was corrected a third time. There's also email traffic with the accused, making it
clear that the chain of command was aware of the erroneous date, there was no miscommunication of an
expectation of him to report on that erroneous date.
CDC: Ma'am, he is correct. I think the ultimate, final copy came out on 9 April, but there was
lots of email traffic in which he was copied, and acknowledged that he knew it was being fixed; it just
didn't get printed until 9 April.
MJ: I don't think we need those as appellate exhibits; let me just ask the question.
When you wrote the letter to President Obama, and you advised the chain of command on
30 March 2010 that you were going to refuse to follow your deployment orders, were you doing that
because you believed the deployment orders had you there at too early a report date?
ACC: No, ma'am.
MJ: Did that have anything to do with your decision at that time?
ACC: No, ma'am.
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MJ: Did you understand, on the 30
th
of March, that your chain of command was looking to fix
the report date?
ACC: Yes, ma'am.
MJ: Did they actually fix it?
ACC: It had been fixed by then.
MJ: Did the report date have anything whatsoever to do with your decision in this case?
ACC: No, ma'am.
MJ: Does either side believe any further inquiry is required?
CDC: No, Your Honor.
TC: [After conferring with co-counsel.] In an abundance of caution, ma'am, if we could, the
accused mentioned in his inquiry a perceived relationship between a speech by the President surging
troops in Afghanistan and his TCS orders just to relate that to this consistency inquiry that we've been
discussing, to assure that he didn't have any separate belief that those orders were not lawful, based on
the connection with the concerns he is raising.
CDC: Your Honor, I think you have eliminated that confusion, because you actually
emphasized, when you were looking at the letter, the word "may," so the concept that the orders may be
illegal- in fact, he had his bags packed, he was ready to go, was ready to follow it, hadn't made a final
decision yet, that whole "may" thing didn't indicate - he wasn't voicing a determination that he'd made
or believed that they were illegal orders. It was just a possibility, based on the unanswered question that
they may be illegal.
I don't think there's really any confusion about that, but he can answer your questions
about the surge and subsequent orders issued according to the surge. There's a distinction here, Your
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Honor, in his mind, whether the President mayor may not be the lawful Commander-in-Chief. He has
always presented it as an open question I don't know the answer to this, I want to know the answer to
this. But that doesn't mean that he believed at the time that his TCS orders were unlawful or not lawful
orders.
MJ: I understand where you're going, Mr. Puckett. I am going to talk a little more in depth.
Lieutenant Colonel Lakin, that gets back to the question I asked you earlier. Are you
drawing any distinction between the orders in Specification 1 and 2, which arguably had nothing to do
with going to Fort Campbell and deploying in furtherance ofthe surge policy of President Obama, and
the order in Specification 3 of Charge II, which is I believe you testified earlier that it is not just
merely a TCS to Fort Campbell, it is a TCS to Fort Campbell to deploy. Is that correct?
ACC: Yes, ma'am.
MJ: If you're deploying, where were you deploying to?
ACC: In support ofOEF to Afghanistan.
MJ: When you made your decision you said you went to the chapel, and you made your
decision not to go to Colonel Roberts's office at 1700 on the 31 st of March 2010, that's before the 12th of
April 2010. When you came out of that chapel, had you made a decision on what you were going to do
with respect to these deployment orders? Or did that decision come later?
ACC: Ma'am, I had my bags packed, and I hadn't made my decision yet.
MJ: When did you make your decision that you were going to disobey this order?
ACC: Which ---­
MJ: The order to deploy - the order to report to Fort Campbell, excuse me, to report no later
than 12 April 2010.
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ACC: I had my bags in the car, and I had not heard any validation ofthe question that I'd been
asking. I reported to work at the Pentagon at DiLorenzo Clinic with my bags in back of my car, ma'am.
MJ: When did you make the decision that if you hadn't received the information that you
sought with respect to the birth certificate ofPresident Obama that you were not going to deploy?
ACC: That was the 30
th
of March.
MJ: That was before you went to the chapel?
ACC: Yes, ma'am.
MJ: Do you believe that Colonel Peter McHugh had the authority to order you to report to
Fort Campbell, Kentucky not later than 1500 hours on 12 April 201 O?
ACC: Yes, ma'am.
MJ: You knew about the order, is that right?
ACC: Yes, ma'am.
MJ: Is it a lawful order?
ACC: Yes, ma'am.
MJ: Do you believe it is a lawful order?
ACC: Yes, ma'am.
MJ: Do you believe you had a duty to obey that order?
ACC: Yes, ma'am.
MJ: At the time you made the decision to disobey that order, did you know it was a lawful
order?
ACC: Yes, ma'am.
MJ: Did you know that you had a duty to obey that order?
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1 ACC: Yes, ma'am.
2 MJ: When you wrote your letter to the President, was that based on the dictates of your
3 conscience, religion or personal philosophy about what you believed was right?
4 ACC: Yes, ma'am.
5 MJ: Notwithstanding that, do you agree that that was a lawful order to deploy to Fort
6 Campbell, Kentucky?
7 ACC: Yes, ma'am.
8 MJ: Do you believe that you had a duty to obey that order?
9 ACC: Yes, ma'am.
10 MJ: Counsel, any further inquiry?
11 TC: One moment, Your Honor.
12 [After conferring with co-counsel.] No further inquiry from the government, Your
13 Honor.
14 MJ: Defense, do you believe any further inquiry is required?
15 CDC: No, Your Honor.
16 MJ: Lieutenant Colonel Lakin, do you admit that a member of the armed forces, namely
17 Colonel Peter M. McHugh, issued a certain lawful order, to wit: Temporary Change of Station Order
18 099-17, dated 9 April 2010, issued by Colonel McHugh, requiring you to report to Fort Campbell,
19 Kentucky not later than 1500 on 12 Apri1201O?
20 ACC: Yes, ma'am.
21 MJ: Do you admit that you had knowledge ofthe order?
22 ACC: Yes, ma'am.
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1 MJ: Do you admit that you had a duty to obey the order?
2 ACC: Yes, ma'am.
3 MJ: Do you admit that at or near Washington, District of Columbia, on or about 12 April
4 2010, you failed to obey the order?
5 ACC: Yes, ma'am.
6 MJ: Lastly, let's look at Specification 4 of Charge II. In Specification 4 of Charge II, you're
7 pleading to the offense of willful dereliction of duty, in violation of Article 92, UnifolTIl Code of
8 Military Justice. By pleading guilty to this offense, you're admitting the following elements are true and
9 accurately describe what you did­
10 One, that you had a prescribed duty, that is, to report to Fort Campbell, Kentucky, in
11 accordance with Temporary Change of Station Orders 099-17, dated 9 April 2010;
12 Two, that you actually knew of the assigned duty; and
13 Three, that, at or near Washington, District of Columbia, you were willfully derelict in
14 the perfolTIlance of that duty by willfully failing to report to Fort Campbell, Kentucky in accordance
15 with Temporary Change of Station Order 099-17.
16 A duty may be imposed by regulation, lawful order, or custom of the service. A person is
17 derelict in the performance of duty ifhe willfully fails to perform it. "Dereliction" is defined as failure
18 in duty, a shortcoming, or delinquency. "Willfully" means intentionally; it refers to the doing of an act
19 knowingly and purposely, specifically intending the natural and possible consequences ofthat act.
20 Do you understand the elements and definitions, as I've read them to you?
21 ACC: Yes, ma'am.
22 MJ: Do you have any questions about them?
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ACC: No, ma'am.
MJ: Do you understand that your plea of guilty admits that these elements accurately describe
what you did?
ACC: Yes, ma'am.
MJ: Do you believe and admit that the elements and definitions, taken together, correctly
describe what you did?
ACC: Yes, ma'am.
MJ: You received the orders that we were talking about, Order 099-17, dated 9 April 2010;
we've already talked about that.
ACC: Yes, ma'am.
MJ: Did you have a duty to comply with those orders?
ACC: Yes, ma'am, I did.
MJ: Did you know that you had that duty?
ACC: Yes, ma'am.
MJ: We already talked about this. Did you go to Fort Campbell on or before 12 April 201 O?
ACC: No, I did not, ma'am.
MJ: Did you do that - I defined "willfully" for you - did you do that intentionally? Did you
do it knowingly and purposefully, specifically intending the natural and probable consequences of the
act?
ACC: Yes, ma'am.
MJ: So, when you didn't go to Fort Campbell, you knew you weren't going to be there, your
position was going to remain unfilled?
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ACC: Yes, ma'am.
MJ: And you made the decision to do that anyway, is that correct?
ACC: Yes, ma'am.
MJ: Did you have any legal justification or excuse for not going to Fort Campbell on or
before the 12th of Apri1201O?
ACC: No, ma'am.
MJ: Does either side believe any further inquiry is required?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: Lieutenant Colonel Lakin, do you admit that you had a certain prescribed duty, that is, to
report to Fort Campbell, Kentucky, in accordance with Temporary Change of Station Order 099-17,
dated 9 April 2010?
ACC: Yes, ma'am.
MJ: Do you admit that you actually knew of the assigned duty?
ACC: Yes, ma'am.
MJ: Do you admit that at or near Washington, District of Columbia, you were willfully
derelict in the performance of that duty by willfully failing to report to Fort Campbell in accordance
with Temporary Change of Station Order 099-17?
ACC: Yes, ma'am.
MJ: Does either side believe any further inquiry is required with respect to any of the
specifications of Charge II?
TC: No, ma'am.
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CDC: No, Your Honor.
MJ: Trial counsel, what do you calculate to be the maximum punishment authorized in this
case, based solely on Lieutenant Colonel Lakin's guilty plea?
TC: Your Honor, 24 months confinement; forfeiture of all pay and allowances; and dismissal
from the service.
MJ: Does the defense agree?
CDC: We do, Your Honor, with reservations about the motion we talked about.
TC: All four specifications, Your Honor, as currently pled - 24 months.
MJ: Lieutenant Colonel Lakin, do you understand that on your plea of guilty alone, this court
could sentence you to the maximum punishment that I just described, which is total forfeiture of all pay
and allowances; confinement for up to 24 months; and a dismissal from the service?
ACC: Yes, ma'am.
MJ: Is the government interested in a fine?
TC: No, ma'am.
MJ: Is there a pretrial agreement in this case?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: Lieutenant Colonel Lakin, even though there is no formal pretrial agreement, has
anybody made any agreements in this case with you in order to get you to plead guilty?
ACC: No, ma'am.
MJ: Has anybody made any promises to you in order to get you to plead guilty?
ACC: No, ma'am.
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MJ: Mr. Puckett, Major Kemkes, have you had enough time and opportunity to discuss this
case with Lieutenant Colonel Lakin?
CDC: I have, Your Honor.
DC: Yes, Your Honor.
MJ: Have you, in fact, fully consulted -- Lieutenant Colonel Lakin, have you fully consulted
with your defense team, and received the full benefit of their advice?
ACC: Yes, ma'am.
MJ: Have you had enough time and opportunity to discuss this case with your defense team?
ACC: Yes, ma'am.
MJ: Are you satisfied with your defense counsel's advice, and that it is in your best interest?
ACC: Yes, ma'am.
MJ: Are you satisfied with your defense counsel?
ACC: Yes, ma'am.
MJ: Are you pleading guilty voluntarily and of your own free will?
ACC: Yes, ma'am.
MJ: Has anyone made any threat, or in any way tried to force you to plead guilty?
ACC: No, ma'am.
MJ: Do you have any questions as to the meaning and effect of your guilty plea?
ACC: No, ma'am.
MJ: Do you understand, fully, the meaning and effect of your guilty plea?
ACC: Yes, ma'am.
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MJ: Do you understand that even though you believe you are guilty, you have the legal and
moral right to plead not guilty, and place upon the government the burden of proving your guilt beyond
a reasonable doubt?
ACC: Yes, ma'am.
MJ: Take a moment now and consult once again with your defense team, and tell me if you
still want to plead guilty.
[The accused and his counsel conferred.]
Do you still want to plead guilty?
ACC: Yes, ma'am.
MJ: Lieutenant Colonel Lakin, I find that your plea of guilty is made voluntarily and with full
knowledge of its meaning and effect. I further find that you have knowingly, intelligently and
consciously waived your rights against self-incrimination; to a trial of the facts by a court-martial; and to
be confronted by the witnesses against you. Accordingly, your plea of guilty is provident and is
accepted.
However, I advise you you may request to withdraw your guilty plea at any time before
the sentence is announced; if you have good cause for your request, I will grant it.
Accused and counsel, please rise.
[The accused and his counsel did as directed.]
Lieutenant Colonel Terrence L. Lakin, in accordance with your plea of guilty, this court
finds you:
Of Specifications 1, 2, 3 and 4 of Charge II and Charge II: Guilty.
Please be seated.
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[The accused and his counsel did as directed.]
Does the defense have a motion to make?
CDC: Yes, Your Honor.
We believe that we'd ask the court to dismiss Specification 4 as multiplicious with
Specification 3.
MJ: Would that be an unreasonable multiplication of charges for findings?
CDC: Yes, Your Honor, as we discussed in the 802 conference.
MJ: Does the government have any objection to that?
TC: No, Your Honor. The government agrees they're multiplicious for sentencing purposes,
the plea has already been entered, so we don't object to dismissing Specification 4 at this time.
MJ: The court agrees that Specification 4 of Charge II will be dismissed at this time as an
unreasonable multiplication of charges with Specification 3 of Charge II; thus, do both sides agree the
maximum sentence in this case, based solely on Lieutenant Colonel Lakin's guilty plea, would then be
reduced by 6 months to 18 months confinement, total forfeitures and dismissal?
TC: Yes, ma'am.
CDC: Yes, Your Honor.
MJ: That specification will not be on the flyer for the members?
TC: Certainly not that one, ma'am. We wanted to address, later on this 39(a) or in an 802,
what the flyer will actually look like, and some administrative matters before we move on to the next
phase.
MJ: We can certainly do that.
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Is there anything else at this point - the government was talking about pre-admitting
some evidence?
TC: We'd like to, Your Honor, but we want to make sure we can coordinate and show it to the
defense prior. Perhaps if we could take a comfort break and reconvene for a 39(a), for the purposes of
addressing the flyer, preadmission of evidence, prior to calling the members?
MJ: Let's do that.
Is there anything else we need to address at this point before we recess the court?
TC: Nothing from the government, ma'am.
CDC: Nothing from the defense, Your Honor.
. MJ: I'd like to meet with counsel briefly for an 802 session. How long of a recess do you
believe is reasonable to accomplish all you need to accomplish?
TC: 1130, ma'am?
CDC: We agree.
MJ: The court will be in recess until 1130. Please advise the members to be prepared to
proceed about 1140.
Court is in recess.
[The session recessed at 1110, 14 December 2010.]
[END OF PAGE]
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1 [The session was called to order at 1218, 14 December 2010.]
2 MJ: Court is called to order. [All parties present prior to the recess were again present.]
3 Once again, counsel and I met in an RCM 802 conference, which is a conference where I
4 meet with counsel to discuss logistics and scheduling issues arising in cases. At that conference, we
5 discussed the flyers that will go to the members. Are those marked as appellate exhibits?
6 TC: Yes, rna' am.
7 MJ: I'm looking at Appellate Exhibit XXVIII, which is the flyer with the Specification of
8 Charge I, the charge of missing movement, to which Lieutenant Colonel Lakin has pled not guilty; and
9 the flyer marked Appellate Exhibit XXIX, which is the flyer containing Specifications 1, 2 and 3 of
10 Charge II, which were the specifications to which Lieutenant Colonel Lakin has pled guilty.
11 Mr. Puckett, you advised me in the RCM 802 conference that it is the wish of the parties
12 that the members be advised of Lieutenant Colonel Lakin's plea. Is that correct?
13 CDC: That's correct, Your Honor, in the form that you're holding there.
14 MJ: So the defense agrees that both of these flyers will go to the members; the members will
15 be instructed that they're required only to reach findings with respect to the Specification of Charge I?
16 CDC: Yes, Your Honor.
17 Your Honor, what we did not address in the 802 is, will there be an instruction that
18 they're not permitted to use one for the other, that that's not evidence - the flyer is not evidence?
19 MJ: I would plan to give the standard instruction in the Benchbook, which is, "The court is
20 advised that findings by the court members will not be required regarding the charge and specification to
21 which the accused has already been found guilty pursuant to his plea. I inquired into the providence of
22 the pleas of guilty, found them to be provident, accepted them and entered findings of guilty. Findings
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1 will be required as to the Charge and Specification for which the accused has pled not guilty." There is
2 actually not an instruction that talks about - they weren't privy to the providence inquiry, so they're not
3 going to have it.
4 CDC: Right, Your Honor, but there is this - we've told them that he's already been found guilty
5 of that. There might be questions in their minds about, 'Is this now proof that I can use for this other
6 charge? Can I use this to prove this?' Just that it is not evidence, that it is just there for informational
7 purposes only.
8 MJ: Government, any objection to an instruction in thatregard?
9 TC: Your Honor, we believe the standard spillover instruction might be appropriate.
10 Obviously, that contemplates multiple specifications that they're weighing, so maybe some amended
11 version of the spillover instruction the government doesn't object to that.
12 CDC: That would work, Your Honor, the spillover instruction, because that is what we're
13 concerned about is spillover, I guess.
14 MJ: The standard spillover instruction, the first paragraph reads, "The accused may be
15 convicted based only on evidence before the court, not on evidence of a general criminal disposition.
16 Each offense will stand on its own, and you must keep evidence of each offense separate. Stated
17 differently, if you find or believe the accused is guilty of one offense, you may not use that finding or
18 belief as basis for inferring, assuming or proving that he committed the offense ... "
19 CDC: Yes, Your Honor, and then tailored to this case; in other words, 'You cannot use the fact
20 that he has been found guilty of these offenses as evidence that he is guilty of the other offense.'
21 MJ: Any objection to that by the government?
22 TC: No, Your Honor.
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MJ: I will do that.
Has the defense had a chance to review the panel booklets?
CDC: We have, Your Honor.
MJ: Any objections?
CDC: No, Your Honor.
MJ: Does the government have any evidence that it wishes to admit?
TC: Yes, Your Honor, the government has reviewed what has previously been marked for
identification purposes as Prosecution Exhibits 1-20 with the defense; the government would like to pre-
admit those exhibits, and does not believe there is any objection from the defense.
MJ: Defense, have you had an opportunity to review Prosecution Exhibits 1-20?
CDC: We have, Your Honor.
MJ: Do you have any objections to any ofthem?
CDC: No, Your Honor.
MJ: Prosecution Exhibits 1-20 for identification are admitted.
Counsel, I believe we discussed during the conference that the plan will be to call the
members, give the preliminary instructions and voir dire, and at that point, break for lunch, and then
begin after the lunch break with opening statements. Is that what the parties agreed to?
TC: Yes, ma'am.
CDC: Yes, Your Honor.
MJ: Is there anything else that we need to address before we call the members?
CDC: No, Your Honor.
TC: Nothing from the government, Your Honor.
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1 MJ: I'll finish marking the exhibits, and then we'll call the members.
2 [Pause.] Bailiff, please call the members.
3 [END OF PAGE]
4
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[The court-martial was called to order at 1227, 14 December 2010.]
MJ: The court is called to order.
TC: Your Honor, this court-martial is convened by Court-Martial Convening Order Number
4, Headquarters, United States Army Military District of Washington, dated 4 March 2009, as amended
by Court-Martial Convening Order Number 8, same headquarters, dated 10 December 2010, copies of
which have been furnished to each member of the court.
The accused and the following persons detailed to this court-martial are present:
COLONEL DENISE LIND, MILITARY JUDGE;
CAPTAIN PHILIP O'BEIRNE, TRIAL COUNSEL;
CAPTAIN ANGEL OVERGAARD, ASSISTANT TRIAL COUNSEL;
CAPTAIN JONATHAN KOBRINSKI, [SECOND] ASSISTANT TRIAL
COUNSEL;
MR. NEAL PUCKETT, CIVILIAN DEFENSE COUNSEL;
MAJOR MATTHEW KEMKES, DEFENSE COUNSEL;
MR. LEO BULA VKO, COURT REPORTER; AND THE COURT MEMBERS
COLONEL STEPHEN THOMPSON,
COLONEL GAIL GERDING,
COLONEL RODERICK BURKE,
COLONEL LORETTA DEANER,
COLONEL MARK STRONG,
COLONEL PHILIP V ANWILTENBURG,
COLONEL STUART MELLON,
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COLONEL MICHAEL AHN,
COLONEL ANNETTE TOruSI, AND
LIEUTENANT COLONEL TIMOTHY SCHMOYER.
No members are absent.
The prosecution is ready to proceed with the trial in the case of United States v.
Lieutenant Colonel Terrence Lakin.
MJ: The members of the court will now be sworn.
All persons in the courtroom, please rise.
[All persons in the courtroom did as directed and the members were sworn.]
Please be seated.
[All persons in the courtroom did as directed.]
The court is assembled.
Members ofthe court, it is appropriate that I give you some preliminary instructions. My
duty as the military judge is to insure that this trial is conducted in a fair, orderly and impartial manner,
in accordance with the law. I preside over open sessions, rule upon objections, and instruct you as to the
law applicable in this case. You are required to follow my instructions on the law, and may not consult
with any source as to the law pertaining to this case, unless it is admitted into evidence. This rule
applies throughout the trial, including closed sessions and periods of recess and adjournment. Any
questions you have ofme should be asked in open court.
As court members, it is your duty to hear the evidence, and to determine whether the
accused is guilty or not guilty, and if you find the accused guilty, to adjudge an appropriate sentence.
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Under the law, the accused is presumed to be innocent of the offense. The government
has the burden of proving the accused's guilty by legal and competent evidence beyond a reasonable
doubt. A "reasonable doubt" is an honest, conscientious doubt, suggested by the material evidence, or
lack of it, in the case. It is an honest misgiving, generated by insufficiency of proof of guilt. "Proof
beyond a reasonable doubt" means proof to an evidentiary certainty, although not necessarily to an
absolute or mathematical certainty. The proof must exclude every fair and reasonable hypothesis of the
evidence, except that of guilt. The fact that charges have been preferred against this accused, and
referred to this court for trial, does not permit any inference of guilt.
You must determine whether the accused is guilty or not guilty based solely upon the
evidence presented here in court, and upon the instructions that I will give you. Because you cannot
properly make that determination until you have heard all of the evidence and received the instructions,
it is of vital importance that you keep an open mind until all of the evidence has been presented, and the
instructions have been given. I will instruct you fully before you begin deliberations; in doing so, I may
repeat some of the instructions that I am giving you now, or possibly during the trial. Bear in mind that
all of these instructions are designed to help you perform your duties as court members.
The final determination as to the weight ofthe evidence, and the credibility of witnesses
in this case, rests solely upon you. You have the duty to determine the believability of the witnesses. In
performing this duty, you should consider each witness's intelligence and ability to observe and
accurately remember, in addition to the witness's sincerity and conduct in court, friendships, prejudices
and character for truthfulness. Consider also the extent to which each witness is either supported or
contradicted by other evidence; the relationship each witness may have with either side; and how each
witness might be affected by the verdict. In weighing a discrepancy by a witness or between witnesses,
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you should consider whether it resulted from an innocent mistake or a deliberate lie. Taking all these
matters into account, you should then consider the probability of each witness's testimony and the
inclination of the witness to tell the truth. The believability of each witness's testimony should be your
guide in evaluating testimony, rather than the number of witnesses called.
Counsel will soon be given an opportunity to ask you questions and exercise challenges.
With regard to challenges, if you know of any matter which might affect your impartiality to sit as a
court member, you must disclose that matter when asked to do so. Bear in mind that any statement you
make should be made in general terms, so as not to disqualifY other members who hear the statement.
Any matter that might affect your impartiality is a ground for challenge. Some ofthe
grounds for challenge would be if you were the accuser in the case; if you had investigated the offense
charged; if you had formed or expressed an opinion as to the guilt or innocence ofthe accused. To
determine if any grounds for challenge exist, counsel for both sides are given an opportunity to question
you. These questions are not intended to embarrass you; they are not an attack upon your integrity.
They are asked merely to determine whether a basis for challenge exists. It is not an adverse reflection
upon a court member to be excused from a particular case. You may be questioned either individually
or collectively, but in either event, you should indicate an individual response to the question asked.
Unless I indicate otherwise, you are required to answer all questions.
You must keep an open mind throughout the triaL You must impartially hear the
evidence, the instructions on the law, and only when you are all together in your closed-session
deliberations may you properly make a determination as to whether the accused is guilty or not guilty, or
as to an appropriate sentence if the accused is found guilty of any offense.
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1 With regard to sentencing, should that become necessary, you may not have a
2 preconceived idea or formula as to either the type or amount of punishment that should be imposed if the
3 accused were to be convicted.
4 Counsel are given an opportunity to question all witnesses. When counsel have finished,
5 if you feel that there are substantial questions that should be asked, you'll be given an opportunity to do
6 so. The way we handle that is to require you to write out the question - there are question forms in your
7 packages - and to sign legibly at the bottom. This method gives counsel for both sides, and me, an
8 opportunity to review the questions before they're asked, since your questions, just like the questions of
9 counsel, are subject to objection. There are forms in your packages that you can use for questions. I will
10 conduct any needed examination.
11 There are a couple things you need to keep in mind concerning questioning. First, you
12 cannot attempt to help either the government or the defense. Second, counsel have interviewed the
13 witnesses and know more about the case than we do. Very often, they do not ask what appear to us to be
14 an obvious question because they're aware the particular witness has no knowledge on the subject.
15 Rules of evidence control what can be received into evidence. As I indicated, questions
16 of witnesses are subject to objection. During the trial, when I sustain an objection, disregard the
17 question and the answer; if! overrule an objection, you may consider both the question and the answer.
18 Until you close to deliberate, you may not discuss this court-martial with anyone, not
19 even among yourselves. You must wait until you are all together in your closed-session deliberations so
20 that all panel members have the benefit of your discussion.
21 During the course of the trial, including all periods of recess and adjournment, you must
22 not communicate with anyone about the case, either in person, by email.blog.textmessage.Twitter. or
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1 similar fOTIns of social media. Posting infonnation about a case on a Facebook page or MySpace page
2 each night, for example, is considered a fonn of communicating about the case. You must also not
3 listen to or read any accounts of the case, or visit the scene of any incident alleged in the specifications
4 or mentioned during the trial. You may not consult any source of law or infonnation, written or
5 otherwise, as to any matters in the case, and do not consult your own investigation or research. For
6 example, you cannot consult the Manual for Courts-Martial, dictionaries or reference materials, search
7 the internet, Google the witnesses to learn more about them, review a Wikipedia entry, consult a map or
8 satellite picture to learn more about the alleged crime scene.
9 During any recess or adjournment, avoid contact with witnesses or potential witnesses in
10 the case, counselor the accused. If anyone attempts to discuss this case with you, or communicate with
11 you during any recess or adjournment, immediately tell them to stop and report the occurrence to me at
12 the next open session.
13 I may not repeat these matters to you every time we recess the court, but keep them in
14 mind throughout the trial.
15 We will try to estimate the time necessary for recesses or hearings outside of your
16 presence. Frequently, their duration is extended by consideration of new issues arising in such hearings.
17 Your patience and understanding regarding these matters will contribute greatly to an atmosphere
18 consistent with the fair administration ofjustice.
19 This trial may be covered by the news media. You are instructed not to communicate
20 with any media representatives during the trial. A void meeting, hearing, or watching any news coverage
21 relating to this trial until it is over. There may be a television camera in the courtroom for closed-circuit
22 viewing at a remote location. The purpose is to provide expanded spectator capacity because of the
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limited seating capacity in the courtroom. The Constitution rccognizes the right to a public trial, which
means that an accused has the right to public scrutiny of his trial, and the public has the right to observe
trials in the United States. The camera will be moved to show counsel, witnesses, the accused and me,
but will not be showing the court members. As to the courtroom i t s e l f ~ no audio or visual recording of
the proceedings is permitted. There is an additional bailiff at the remote location to insure compliance
with the court rules for spectators.
You may have observed security measures outside the courtroom. I've reviewed the
security plan for this court-martial with counsel for both sides, and have detennined that these measures
will not intrude upon the proceedings, nor on the functions of counselor the members. You should not
speculate as to the reasons for the measures, or in any way consider them as evidence, and draw from
them no inferences adverse to either the prosecution or the defense. Basically, you should disregard
these measures, just as you would security measures in any public building or airport.
While you are in your closed-session deliberations, only the members will be present.
You must remain together and not allow any unauthorized intrusion into your deliberations. Each of
you has an equal voice and vote with the other members in discussing and deciding all issues submitted
to you. However, in addition to the duties of the other members, the senior member will act as your
presiding officer during your closed-session deliberations, and will speak for the court in announcing the
results.
The general order of events that can be expected at this court-martial is as follows:
Questioning of court members;
Challenges and excusals;
Opening statements by counsel;
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Presentation of the evidence;
Substantive instructions on the law to you;
Closing argument by counsel;
Procedural instructions on your voting;
Your deliberations; and
Announcement of the findings.
If the accused is convicted of the offense, there will also be sentencing proceedings.
The appearance and demeanor of all parties to the trial should reflect the seriousness with
which this trial is viewed. Careful attention to all that occurs during the trial is required of all parties. If
it gets too hot or cold in the courtroom, or if you have any other such logistics issues, or you need a
break because you're tried, please let me know so that we can attend to those needs.
Each of you may take notes, if you desire, and use them to refresh your memory during
deliberations, but they may not be read or shown to the other members. At the time of any recess or
adjournment, you may either take your notes with you for safekeeping, or you can leave them here and
we'll insure they're secure.
If during the trial it is necessary for any of you to make a statement, I would ask that you
preface the statement by stating your name, so that it will be clear on the record who is speaking.
Are there any questions?
MEMBERS: [Negative responses.]
MJ: Apparently not.
Please take a moment to review the charges on the flyers provided to you, and make sure
that your name is correctly reflected on the convening orders; ifit is not, please let me know.
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[The members did as directed.]
Are there any errors in your information on the convening orders?
MEMBER [LTC SCHMOYER]: Yes, Your Honor. My name is correct, my organization is
correct, but my branch designation is incorrect; my branch designation should be Signal Corps, "SC,"
instead of "FA."
MJ: That will be reflected in the record. Thank you.
Any other errors in the convening order?
MEMBER [COL VANWILTENBURG]: Yes, Your Honor. There is actually one extra 44L" in
my name.
MJ: It is W-I-L-T-E-N?
MEMBER [COL VANWILTENBURG]: Yes, ma'am.
MJ: That will also be reflected in the record. Thank you.
Are there any other errors in the convening order?
MEMBERS: [Negative responses.]
MJ: Apparentl y not.
Members of the court, you'll notice that you have two flyers in your packages; look at the
flyer that says on the top "Findings Required," there should be one specification and charge on that
flyer. That is the Specification and Charge upon which findings will be required from you. The three
specifications of Charge II on the second flyer, the court is advised that the court members will not be
required to reach findings, because the accused has already been found guilty pursuant to his pleas to the
three specifications of Charge II and Charge II. I inquired into the providence of the pleas of guilty,
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found them to be provident, accepted the pleas of guilty and entered findings of guilty. Findings will ~ ' f :
required by you for the Specification of Charge I.
I want you to also be aware of something. The accused may be convicted only on
evidence before the court, not on evidence of a general criminal disposition. Each offense must stand on
its own, and you must keep the evidence of each offense separate. Stated differently, if you find or
believe that the accused is guilty of the specifications of Charge II, that he's pled guilty to and been
found guilty of, you may not use that finding or belief as a basis for inferring, assuming or proving that
he committed the offense that you're required to reach findings on in the Specification of Charge I. In
other words, you can't use the fact that he's pled guilty to Specifications 1-3 of Charge II as evidence to
prove that he committed the offense in the Specification of Charge I - that's for your informational
purposes only.
Does everyone understand that?
MEMBERS: [Affirmative responses.]
MJ: Trial counsel, please announce the general nature of The Charge.
TC: Ma' am, the general nature of the remaining Charge in this case is one Specification of
missing movement in violation of Article 87 of the Uniform Code of Military Justice.
The Charge was preferred by Captain Lance Jelks, and forwarded with recommendations
as to disposition by Captain Jelks and Major General Carla Hawley-Bowland. Colonel Gordon Roberts,
the summary court-martial convening authority, forwarded the Charge without recommendation. The
Article 32 investigation was waived.
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The records of this case disclose no grounds for challenge. If any member ofthe court is
aware of any matter which he or she believes may be a ground for challenge by either side, such matters
should now be stated.
MEMBERS: [Negative responses.]
TC: Negative response from all members, ma'am.
MJ: Thank you.
Members of the panel, before counsel ask you any questions, I'm going to ask you some
preliminary questions. If any member has an affirmative response to the question, please raise your
hand. I'd also ask that you respond either by shaking your head no or yes, just so I can understand that
you've heard the question and you've actually had a response.
Does anyone know the accused in this case?
MEMBERS: [Negative responses.]
MJ: Negative response by all the members.
Having seen the accused, and having read the Charge and its Specification, as well as the
three specifications and the charge to which the accused has pled guilty to, does anyone believe that they
cannot give the accused a fair trial for any reason?
MEMBERS: [Negative responses.]
MJ: Negative response from all the members.
Does anyone have prior knowledge of the facts or events of this case?
MEMBER [LTC SCHMOYER]: [Affirmative response.]
MJ: Positive response from Lieutenant Colonel Schmoyer; negative response from the
remaining panel members.
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Has anyone, or any member of your family, been charged with offenses similar to any of
those charged in this case?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
How many of you are serving as court members for the first time in a trial by court-
martial?
MEMBERS: [Some affirmative responses.]
MJ: Positive response from Colonel Torisi, Colonel Mellon, Colonel Vanwiltenberg and
Colonel Strong; negative response from the remaining members.
For the remaining members who have served on court-martial panels before, can you put
aside anything you may have heard in the previous proceeding and decide this case based solely on the
evidence and instructions on the applicable law?
MEMBERS: [Affirmative responses.]
MJ: Positive response from the remaining members.
The accused has pled not guilty to Charge I and its Specification, and is presumed to be
innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt. Does
anyone disagree with this rule oflaw?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Can each of you apply this rule oflaw and vote for a finding ofnot guilty unless you are
convinced beyond a reasonable doubt that the accused is guilty?
MEMBERS: [Affirmative responses.]
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1 MJ: Positive response from the members.
2 You're aU basically familiar with the military justice system, and you know that the
3 accused has been charged, his charges have been forwarded to the Convening Authority and referred to
4 triaL None of this warrants any inference of guilt.
5 Can each you follow this instruction and not infer that the accused is guilty of anything
6 merely because the charges have been referred to trial?
7 MEMBERS: [Affirmative responses.]
8 MJ: Positive response from the members.
9 On the other hand, can each of you vote for a finding of guilty if you're convinced that
10 under the law, the accused's guilt has been proved by legal and competent evidence beyond a reasonable
11 doubt?
12 MEMBERS: [Affirmative responses.]
13 MJ: Positive response from the members.
14 Does each member understand, then, that the burden ofproofto establish the accused's
15 guilt rests solely upon the prosecution, and the burden never shifts to the defense to establish the
16 accused's innocence?
17 MEMBERS: [Affirmative responses.]
18 MJ: Positive response from the members.
19 Does each member understand, therefore, the defense has no obligation to present any
20 evidence, or to disprove the elements of the offense?
21 MEMBERS: [Affirmative responses.]
22 MJ: Positive response from the members.
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Has anyone had any legal training or experience other than that generally received by
service members of your rank or position?
MEMBER [COL BURKE]: [Affirmative response.]
MJ: Positive response from Colonel Burke.
Has anyone had any special law enforcement training or experience, to include duties as a
military police officer, off-duty security guard, civilian police officer, or comparable duties, other than
general law enforcement duties common to military personnel of your rank or position?
MEMBER [COL BURKE]: [Affirmative response.]
MJ: Positive response from Colonel Burke; negative response on both questions from the
remaining members.
I have previously advised you that it is your duty as court members to weigh the
evidence, and to resolve controverted questions of fact. In doing so, if the evidence is in conflict, you
will necessarily be required to give more weight to some evidence than to other evidence. The weight, if
any, to be given to all of the evidence in this case rests solely with your discretion, so it is neither
required nor expected that you give equal weight to all of the evidence. However, it is expected that you
use the same standards in weighing and evaluating all the evidence, and the testimony of each witness,
and that you will not give more or less weight to the testimony of a particular witness because of that
witness's status, position or station in life.
Will each of you use the same standards in weighing and evaluating the testimony of
each witness, and not give it more or less weight than the testimony of a particular witness solely
because of that witness's position or status?
MEMBERS: [Affirmative responses.]
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MJ: Positive response from the members.
Is any member of the court in the rating chain, supervisory chain or chain of command of
any other member?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Has anyone had any dealings with any of the parties to the trial, to include me or counsel,
which might affect your performance of duty as a court member in any way?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Does anyone know of anything of either a personal or professional nature that would
cause you to be unable to give your full attention to these proceedings throughout the trial?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
It is a ground for challenge that you have an inelastic predisposition towards the
imposition of a particular punishment based solely on the nature of the crime or crimes for which the
accused is to be sentenced, ifhe is found guilty.
Does any member, having read the charges and specifications, believe that you'd be
compelled to vote for a particular punishment if the accused is found guilty, solely because of the nature
of the charges?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
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1 If sentencing proceedings are required, you'll be instructed in detail before you begin
2 your deliberations. I will instruct you on the full range of punishments ---­
3 CDC : Your Honor, if I may? I'm sorry to interrupt. Sentencing proceedings will become
4 necessary, so I think it is important to eliminate confusion. It is going to happen.
5 Thank you, ma'am.
6 MJ: Mr. Puckett is absolutely correct. Sentencing proceedings will be required in this case.
7 You'll be instructed in detail before you begin your deliberations. I will instruct you on the full range of
8 punishments, from no punishment up to the maximum punishment. You should consider all forms of
9 punishment within that range. "Consider" doesn't necessarily mean that you'd vote for a particular
10 punishment; "consider" means that you'd think about and make a choice in your mind, one way or the
11 other, as to whether that's an appropriate punishment. Each member must keep an open mind, and
12 neither make a choice, nor foreclose from consideration, any possible sentence, until the closed session
13 for deliberations and voting on a sentence.
14 Can all of you follow that instruction?
15 MEMBERS: [Affirmative responses.]
16 MJ: Positive response from the members.
17 Can each of you be fair, impartial and open-minded in your consideration of an
18 appropriate sentence if called upon to do so in this case?
19 MEMBERS: [Affirmative responses.]
20 MJ: Positive response from the members.
21 Can each of you reach a decision on sentence on an individual basis in this particular
22 case, and not based solely on the nature of the offenses of which the accused would be convicted?
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1 ACC: [Affinnative responses.]
2 MJ: Positive response from the members.
3 Is any member aware of any matter which might raise a substantial question concerning
4 your participation in this trial as a court member?
5 MEMBERS: [Negative responses.]
6 MJ: Negative response from the members.
7 Trial counsel?
8 TC: Yes, ma'am.
9 Good afternoon, members of the panel. I'm Captain Phil O'Beirne, and along with
10 Captain Kobrinski and Captain Overgaard, we represent the government in this case.
l! As the judge has instructed you, voir dire is our opportunity to ask a few questions and
12 detennine if you have any experiences or opinions that might influence how you see the facts in this
13 case. Nothing that we're going to ask you is going to put you on the spot ---­
14 MJ: Captain O'Beirne.
15 TC: Yes, ma'am.
16 Obviously, explain individually if you have an affinnative answer.
17 Does any member believe the government is held to a higher burden based on the
18 seniority of the accused, or the amount that he has at stake at this court-martial?
19 MEMBERS: [Negative responses.]
20 TC: Negative response from all panel members.
21 Do all the panel members agree that soldiers, regardless of rank, have a responsibility to
22 follow orders, even if they disagree with them?
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MEMBERS: [Affirmative responses.]
TC: Affirmative response from all members, ma'am.
Would any member ofthe panel believe it violates military customs and courtesies for
myself or one ofthe government co-counsel to question senior officer, or even to cross-examine a
senior officer, about their recollection of facts or their opinion in this case?
MEMBERS: [Negative responses.]
TC: Negative response from all members.
That's all the questions we have, Your Honor.
MJ: Mr. Puckett, before I ask you to go here, I want to ask the members quickly if they know
any of the witnesses who may be testifying in this case? I'm going to go through a series of names. If
you know any of these individuals, please raise your hand.
Major Dominick Ivener?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Lieutenant Colonel William Judd?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Colonel Monte Willoughby?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Ms. Sarah Behan?
MEMBERS: [Negative responses.]
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MJ: Negative response from the members.
Colonel Gordon Roberts?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Mr. fCevin Starnes?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Mr. Timothy Mayhak?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Lieutenant Colonel Christine Edwards?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Major Craig Dobson?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Major Nicole Dobson?
MEMBERS: [Negative responses.]
MJ: Negative response from the members.
Thank you, Mr. Puckett.
CDC: Thank you, Your Honor.
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Good afternoon, members. My name is Neal Puckett. I'm a retired Marine lieutenant
colonel, and I'm the founding partner ofthe law firm of Puckett and Faraj - we're based in Alexandria,
Virginia. I'd also like to introduce my co-counsel, Major Matthew Kemkes, and also my client,
Lieutenant Colonel Terrence Lakin, who is also a doctor in the Army.
I do have some questions I have a few more, I hope you'll bear with me. Again, the
same responses - I'll look for head nods, and then we'll move on.
First of all, I'd like to ask - which of you has served on an administrative discharge board
before?
MEMBER [COL GERDING]: [Affirmative response.]
CDC: That's an affirmative response from Colonel Gerding.
Colonel Gerding, do you understand that the standard of proof at an administrative
discharge board is by a preponderance of the evidence, sometimes described as "51 percent" or "more
likely than not?"
MEMBER [COL GERDING]: [Affirmative response.]
CDC: That's an affirmative response.
Do you all understand that in order for you to enter findings of guilty in this case, the
government must establish proof of guilt beyond a reasonable doubt?
MEMBERS: [Affirmative responses.]
CDC: Affirmative response from all members.
Do you all agree and accept that the "beyond a reasonable doubt" standard is significantly
higher than the "preponderance of the evidence" standard applied in an administrative discharge board?
MEMBERS: [Affirmative responses.]
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1 CDC: Affirmative response by all members.
2 Do you each accept and agree that your service as court-martial members is important
3 military service?
4 MEMBERS: [Affirmative responses.]
5 CDC: Affirmative response by all members.
6 The offense that you'll have to make a determination of guilt or innocence on is a charge
7 of missing movement, and that will be described to your later, as set forth on the flyer in front of you ­
8 that's what is at issue for this part of the court-martial. Does any member believe that Lieutenant
9 Colonel Lakin must be guilty, simply because he's been accused of the offense of missing movement?
10 MEMBERS: [Negative responses.]
11 CDC: Negative response by all members.
12 Does any member believe that because we're here at a general court-martial, the General
13 Court-Martial Convening Authority, Major General Horst, has already made a determination that
14 Lieutenant Colonel Lakin is guilty?
15 MEMBERS: [Negative responses.]
16 CDC: Negative response from all members.
17 Do you all understand and agree that Lieutenant Colonel Lakin is presumed under the law
18 to be innocent of this charge?
19 MEMBERS: [Affirmative responses.]
20 CDC: Affirmative response by all members.
21 Do you all understand and agree that Lieutenant Colonel Lakin is not required to prove
22 his innocence to you?
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MEMBERS: [Affinnative responses.]
CDC: Affinnative response by all members.
Do you all understand that the presumption of innocence is an important constitutional
right that we all enjoy?
MEMBERS: [Affinnative responses.]
CDC: Affinnative response by all members.
Do you each understand that because the government has not yet presented any evidence
of guilt on that offense of missing movement, and that all you have to go on is the presumption of
innocence, that you'd have to vote not guilty if you were called upon to vote right now?
MEMBERS: [Affinnative responses.]
CDC: Affinnative response by all members.
Do you each understand that Lieutenant Colonel Lakin is not required to testify, and has
an absolute right to remain silent, and that that may not be held against him?
MEMBERS: [Affinnative responses.]
CDC: Affinnative response by all members.
Colonel Vanwiltenburg, I'm delighted to learn that it is supposed to be there's an extra
"L" in your name. I'm delighted to learn it wasn't three "L's."
Do you all understand that you may sometimes during the trial want to hear from
Lieutenant Colonel Lakin, but his right to remain silent is an important and fundamental right that all
American citizens have?
MEMBERS: [Affinnative responses.]
CDC: Affinnative response by all members.
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1 If after hearing all the evidence and instructions, and discussing the case with your fellow
2 court members, you have reasonable doubt as to whether or not my client committed the offense of
3 missing movement, will you have any hesitation at all about voting for not guilty?
4 MEMBERS: [Negative responses.]
5 CDC: Negative response by all members.
6 Does any member know the prosecutors in this case, either personally or professionally?
7 MEMBERS: [Negative responses.]
8 CDC: Negative response by all members.
9 Do you all understand and agree that you're required to listen only to the evidence
10 presented in this courtroom to render your verdict, and may not refer to any outside information, like
11 Google searches and things like that?
12 MEMBERS: [Affirmative responses.]
13 CDC: Affirmative response by all members.
14 Do you all understand that one of the military judge's most important duties in this trial is
15 to instruct you on the law you must apply in deciding this case?
16 MEMBERS: [Affirmative responses.]
17 CDC: Affirmative response by all members.
18 Members, will you, in accordance with your duties, require the government to prove guilt
19 beyond a reasonable doubt before agreeing to voting guilty for this offense?
20 MEMBERS: [Affirmative responses.]
21 CDC: Affirmative response by the members.
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Does any member believe that every court-martial charge is supposed to result in a
conviction?
MEMBERS: [Negative responses.]
CDC: Negative response by all members.
Does each member understand, therefore, that a court-martial on this charge may
legitimately end in a finding of not guilty?
MEMBERS: [Affirmative responses.]
CDC: Affirmative response by all members.
Do you each understand that the legal determination of my client's guilt or innocence is
solely in your hands, and not the hands of any commander? It is up to you.
MEMBERS: [Affirmative responses.]
CDC: Affirmative response from the members.
Does any member have his or her OER written or reviewed by the Convening Authority,
Major General Horst?
MEMBERS: [Negative responses.]
CDC: Negative response by all members.
Does any member believe that the Convening Authority is expecting you to convict
Lieutenant Colonel Lakin of missing movement?
MEMBERS: [Negative responses.]
CDC: Negative response from all members.
Does any member have any concern that you may be called upon to explain or othenvise
justify a finding of not guilty to some peer or superior?
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MEMBERS: [Negative responses.]
CDC: Negative response by all members.
Do you, therefore, each agree to maintain an open mind about the verdict until you've
heard all the evidence, received the military judge's instructions, and deliberated with the other members
behind closed doors?
MEMBERS: [Affirmative responses.]
CDC: Affirmative response from all members.
I'd like for you now to raise your hand if you have an affirmative response to the
following list of questions.
Have any of you heard now that we've sort of talked about the charges, you've seen the
charges, and you've seen Lieutenant Colonel Lakin and heard his name spoken, have any of you heard
or read anything about the case of Dr. Lakin or Lieutenant Colonel Lakin, either in newspapers, on TV,
on the radio, or on the internet?
MEMBERS: [Some affirmative responses.]
CDC: Affirmative response from Colonel Mellon, Colonel Vanwiltenberg, Colonel Ahn and
Lieutenant Colonel Schmoyer. Anyone else?
MEMBERS: [Negative response from the remaining members.]
CDC: Just to make sure that we're certain about your exposure to the media, did you ever hear
any news coverage at all about the doctor who refused his orders, based on his questions about the
President's legitimacy?
MEMBERS: [Some affirmative responses.]
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CDC: Now, we have an affirmative response from all members, except for Colonel Torisi, who
apparently doesn't get out much.
The second question I have is - have any of you heard about the so-called "birther"
movement, or anything about that?
MEMBERS: [Some affirmative responses.]
CDC: Affirmative response from Colonel Burke, Colonel Deaner, Colonel Mellon and
Lieutenant Colonel Schmoyer.
Does any member disagree with the general rule that soldiers should use their chain of
command to solve problems at the lowest possible level?
MEMBERS: [Negative responses.]
CDC: Put it a different way. Do you all agree with the general rule that a soldier should use his
chain of command to solve his problems at the lowest possible level?
MEMBERS: [Affirmative responses.]
CDC: Affirmative response by all members.
Has any member ever submitted or acted on an Article 138 complaint?
MEMBERS: [Negative responses.]
CDC: Negative response by all members.
Has any member ever had occasion to submit or act on a congressional inquiry?
MEMBERS: [Some affirmative responses.]
CDC: Affirmative response from Colonel Strong, Colonel Burke, Colonel Gerding, Colonel
Deaner, Colonel Mellon and Colonel Vanwiltenburg.
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1 Does any member have experience with the professional officer filler system, or
2 PROFIS?
3 MEMBERS: [Some affirmative responses.]
4 CDC: I get an affirmative response from Colonel Deaner.
5 Finally, has any member ever used the DTS system to arrange travel for TDY, PCS or
6 other official movement?
7 MEMBERS: [Affirmative responses.]
8 CDC: That's an affirmative response from all members.
9 Thank you, Your Honor.
10 MJ: Members of the court, there are some matters we must now consider outside of your
11 presence. I'm going to ask you to return to the deliberation room. I may be calling you out individually
12 for questioning.
13 [The members withdrew from the courtroom at 1303, 14 December 2010.]
14 [END OF PAGEl
15
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1 MJ: Let the record reflect the members have departed.
2 Counsel, would you like a few minutes to decide who you want to recall?
3 ATC2: Yes, Your Honor.
4 [The counsel paused to contemplate the members requested for individual voir dire.]
5 MJ: Trial counsel?
6 TC: Your Honor, based on the responses, we believe we need individual voir dire of every
7 member, except Colonel Torisi.
8 MJ: I>efense?
9 CI>C: We concur exactly with what he said.
10 MJ: Based on the individually-tailored voir dire questions?
11 CI>C: Yes, Your Honor, exactly.
12 MJ: Do you want to go in order of seniority?
13 CDC: That'd be best, I think.
14 MJ: Please ask Colonel Thompson to step into the courtroom.
15 [The bailiff did as directed and COL Thompson returned to the courtroom.]
16 The record will reflect Colonel Thompson has reentered the courtroom.
17 INDIVIDUAL VOIR DIRE OF COLONEL THOMPSON
18 Questions by the trial counsel:
19 Q. I believe you indicated in the affirmative that you had heard something about the case.
20 Could you just clarify what you heard?
21 A. I heard what was in the news, just a general statement to that effect.
22 Q. Do you have any particular knowledge of the facts of the case?
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1 A. No.
2 Q. Did you investigate it yourself?
3 A. No.
4 Q. Do you believe anything you've heard would influence your ability to act independently
5 on what you hear in the court today?
6 A. No.
7 TC: Nothing else from the government.
8 Questions by the civilian defense counsel:
9 Q. Sir, what exactly do you remember reading, seeing or hearing?
10 A. Just that it had occurred.
11 Q. Do you remember when that was?
12 A. No, I couldn't give you an exact date.
13 Q. Do you remember being exposed to it on the internet?
14 A. No, just in the news media - television.
15 Q. After hearing it ---­
16 A. I didn't think much about it after that; I had other things I was doing.
17 Q. Did you form ---­
18 A. No, I did not form any opinion on it.
19 Q. Did you discuss it with anyone?
20 A. No, I did not.
21 CDC: Thank you, sir.
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MJ: Colonel Thompson, if you would, please return to the deliberation room and ask Colonel
Gerding to come out.
[COL Thompson did as directed and COL Gerding entered the courtroom.]
Let the record reflect that Colonel Gerding has reentered the courtroom.
INDIVIDUAL VOIR DIRE OF COLONEL GERDING
Questions by the trial counsel:
Q. You answered in the affirmative that you had heard something about the case of a doctor
who refused to deploy. Can you just explain what you heard or how you heard it?
A. Very minimally - nothing specific, just that that there was an incident like that, but I
didn't hear anything else.
Q. That something like that had happened?
A. Something like that, yes.
Q. Did you investigate it or look into it in any way?
A. No.
Q. Did you discuss it with anybody?
A. Discuss it?
Q. Talk about the case?
A. Oh, no.
Q. Do you believe that whatever you heard before would impact your ability to weigh the
facts as they come in in this court-martial?
A. No.
Q. You can be fair and impartial, despite whatever you heard?
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1 A. Like I said, it was minimal, just that there was an incident.
2 TC: Thank you, ma'am.
3 Nothing else from the government, Your Honor.
4 MJ: Mr. Puckett?
5 Questions by the civilian defense counsel:
6 Q. Ma' am, what did you think when you heard that?
7 A. Just another situation of someone not deploying.
8 Q. What did you think of that concept? People receive information and they process it.
9 What did you think about an Army officer refusing orders?
10 TC: Your Honor, objection. I believe this is getting into some specific opinions of the panel
11 members, as we discussed previously - it has been clear that ---­
12 MJ: I'll let this one go.
13 A. Basically, that we're all charged with following orders, whether we agree with them or
14 not. For whatever reason, he didn't agree with them, and I guess he chose not to follow orders.
15 Me, personally?
16 Q. Right, you personally.
17 A. I follow orders, whether I agree with them or not.
18 MJ: Government, anything further?
19 TC: No, ma'am.
20 MJ: Colonel Gerding, please return to the deliberation room and ask Colonel Burke to come
21 back out, please.
22 [COL Gerding did as directed and COL Burke returned to the courtroom.]
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1 Let the record reflect Colonel Burke has returned from the deliberation room.
2 INDIVIDUAL VOIR DIRE OF COLONEL BURKE
3 Questions by the trial counsel:
4 Q. I believe you answered in the affirmative that you had some particular legal training.
5 Could you please describe that?
6 A. Affirmative. Prior to being commissioned in the United States Army, my major study for
7 my Bachelor of Science was in the area of criminal justice. During that coursework, you had to provide
8 some internship time with a court, as well as with the Montgomery City Police Department. I attended
9 school down in Montgomery, Alabama. I think that's different or unique from my studies of being an
10 officer in the United States Army.
11 Q. How long ago was that, sir?
12 A. That was in 1985.
13 Q. Do you believe that would, in any way, impact your ability to listen to the judge's
14 instructions, or weigh the evidence in this case as it comes in?
15 A. Not whatsoever.
16
Q. In addition, sir, I believe you answered in the affirmative that you had heard something
17 about a doctor that refused to deploy, or you answered one of the questions from the defense. Could you
18 please elaborate?
19 A. Right. I have some recollection of a story during the course of the initial invasion of an
20 officer who refused to deploy, based upon the fact that the Commander-in-Chief did not have a valid
21 birth certificate.
22 Q. When you say "the invasion," do you mean the Iraq invasion?
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1 A. The Iraqi invasion, sometime after that, or I had some recent reco1lection of a story of a
2 particular officer. There may have been different other individuals who have had issues that they
3 believed the President could not issue a valid order as Commander-in-Chief, based upon the fact that he
4 didn't have a valid birth certificate.
5 Q. Did you particularly investigate this, or read about this case?
6 A. No.
7 Q. Did you form any opinions about it in advance?
8 A. No, none whatsoever.
9 Q. Do you think whatever you heard about, provided it was even this case, would impact
10 your ability to weigh fairly the facts, as they come in today?
11 A. No.
12 Q. In addition, you indicated, I believe, in the affirmative that you've heard ofthe "birther"
13 movement, as it was called by the defense counsel?
14 A. Affirmative. I think a1l of us watch the news, and I hear these stories about people who
15 believe that the President doesn't have the right to command, based upon the fact that he didn't have a
16 valid birth certificate. I think that evidence has been shown that there's a birth certificate out there,
17 different things like that. It is not unique to other stories that may be out there in the public that discredit
18 or whatever.
19 Q. So you're not particularly interested in it, or have particular knowledge about it, other
20 than you read about it or heard about it in the news?
21 A. I haven't read anything about it, but I've heard about these particular cases of this
22 particular organization, people having this particular concern.
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Q. I don't want to get into your opinion, sir, but do you believe that what you've heard about
that movement, or the idea that's out there, is that going to negatively impact how you weigh the facts as
they come in? Can you listen to the testimony fairly today, despite whatever you might've heard?
A. Oh, yes, it's all about the facts.
TC: Nothing else from the government, sir. The defense might have some questions for you.
CDC: Thank you, Your Honor.
Questions by the defense counsel:
Q. Colonel Burke, I just want to follow up on a few things. You said you were aware of the
"birther" movement, you clearly have an understanding of what that is. How do you feel about this
movement?
A. I'm an officer in the United States Army. I'm sworn to defend the Constitution against
all enemies, foreign and domestic. People in this country have a whole bunch of opinions, but I serve at
the pleasure of the people. People have had opinions from the dawning of this particular country, but
my opinions are my opinions; they have their opinions, and I defend those opinions.
Q. Does it cause you any personal animosity or hatred for those people?
A. None whatsoever. This country is full of different opinions. The people have a right to
do that, that's why I serve.
Q. To paraphrase, everybody is entitled to their own opinion?
A. Affirmative.
Q. How did you feel when you heard that there was an officer who refused to deploy for the
reason of the birth certificate?
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A. Sometimes you hear news stories, and the news stories don't have the whole truth. It is a
sound-bite, so I didn't know the specifics of the particular case, don't know what the agendas are.
People decide to deploy or not serve for a bunch of different reasons.
Q. Did you take it as a personal affront to your armed force, or to your rank?
A. Negative.
Q. You also, I think, mentioned that you have processed, or possibly even originated, a
congressional inquiry?
A. Affirmative.
Q. What's your familiarity with that process?
A. As a commander, you get different congressional inquiries, soldiers believe that they're
not being treated properly. In my current duties as the Chief of Staff of Army Test and Evaluation
Command, anytime we have a congressional inquiry about a particular system performance, I'm in the
reviewing process for those particular congressional inquiries that go up.
Q. Do you believe that soldiers have the right to submit those?
A. Affirmative, yes.
Q. Does that cause you any personal affront, or do you have a personal objection to soldiers
doing that?
A. No, that's their right.
Q. One of those rights you defend?
A. Affirmative.
CDC: No further questions, ma'am. Thank you.
MJ: Anything further from the government?
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TC: Nothing else, Your Honor.
MJ: Colonel Burke, if you would, please return to the deliberation room and ask Colonel
Deaner to come out.
[COL Burke did as directed and COL Deaner returned to the courtroom.]
INDIVIDUAL VOIR DIRE OF COLONEL DEANER
Questions by the trial counsel:
Q. I believe you answered in the affirmative that you heard something about a doctor that
refused to deploy, or however the defense phrased the question. Could you please elaborate on what
you heard?
A. I think it was on CNN News, something like that, but that was about it. It wasn't
something of interest that grabbed my attention. I only say that because you have soldiers going and
coming, and there's always someone refusing to go because of a certain reason.
Q. Do you remember the particular facts about the report, or did you form any particular
opinions about it when you heard it?
A. No, because I think around about that time, there was a young female who was refusing
to deploy, and she had children - there was something about that case that caught my attention. Like I
said, there was a lot of stories in the news.
Q. That's obviously not this case?
A. No.
Q. Do you believe that whatever you've heard about these types of stories, or even this case
in particular, would impact your ability to fairly weigh the evidence as it is put before you in this court-
martial?
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A. No.
Q. Did you form any particular opinions about this case, based upon what you heard?
A. No, because I didn't dig deeply into it.
Q. In addition, I believe you answered that you had heard of the "birther" movement, or
however it was phrased by the defense. If you could, please, generally speaking, what's your awareness
of it, or what have you heard?
A. In the news, there was a group that believes the President was not born in the US. I don't
really follow that.
Q. Do you have any particularly strong interest in that movement or those arguments?
A. No. I don't lend much credence to it, because I believe it's way above my pay grade, and
we've got people investigating all the time. If there was something there-
Q. So, whether you agree or disagree, do you believe that whatever you know about that
movement would influence your ability to weigh the facts as they come in, fairly, in accordance with the
judge's instructions?
A. No, it wouldn't.
Q. Do you have any particular personal animosity towards anybody who might believe that,
or anything else that you don't particularly believe?
A. No.
Q. You also indicated, rna' am, I believe, that you were at least a little bit familiar with the
PROFIS system?
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A. Yes. When I was a young captain, we deployed to South America; we had doctors that
were on a roster of some sort that came in as fillers. When I deployed as a battalion commander, the
doctor and PA came off the PROFIS roster and deployed with my unit.
Q. So you haven't ever run a system like that; you've just been in units where that system
has worked to fill spots?
A. Yes.
Q. How long ago was that?
A. My last deployment was February '04-February '05.
Q. If there were facts in this case relating to PROFIS, do you think that what you've
experienced in the past would somehow impact how you view those facts unique to this case?
A. No.
TC: Nothing else from the government, ma'am. The defense might have some questions for
you.
MJ: Mr. Puckett?
CDC: Thank you, ma'am.
Questions by the defense counsel:
Q. Ma'am, Ijust want to follow up on some of the things that the captain asked you about.
This "birther" movement, does that cause you any personal animosity or any offense from that?
A. No.
Q. How did you feel when you heard about a doctor refusing to deploy? Did you take that
as a personal affront to your office or to the Army?
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A. No, because again, there were a lot of stories in the news, and if you're not digging deep
into the facts, it is hard to fonn an opinion about something like that. I didn't know the circumstances
behind it.
Q. Ma'am, do you harbor any concerns that people who are "birthers" - you talked about
understanding what the "birther" movement is, and you correctly described it - do you think that those
people must be racists?
A. No.
Q. You also mentioned that you've handled congressional inquiries before?
A. [Affinnati ve response.]
Q. Describe that experience.
A. A lot.
Q. How so?
A. As a commander, we had congressionals coming across my desk. As a staff officer,
congressionals are coming across my desk, whether it involves a soldier complaining about facilities, or
some derogatory action that was taken, a complaint usually, you have to respond within 24 hours. I've
been in the Anny 26 years, so I have experience with congressionals at different levels.
Q. Do they cause you any additional stress or concern when people do that?
A. No, not congressionals. I say that because in a leadership position, you're dealing with
IG complaints, congressional complaints, command inquiries, and you know what the suspense is and
the turnaround times are with those types of actions. I'm not always the one person working on it. I
may be the one person that's reviewing it, and then passing the document along to whoever in the chain
of command needs to see it. It is not always a one-person action.
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Q. Do you agree with the fact that soldiers have a right to petition their legislators to address
their grievances?
A. Yes, I do.
Q. Do you think that's a valuable right, and soldiers ought to have that right?
A. They should. If we're doing the right things, I really don't have a problem with it.
Q. So you don't have any kind of personal objection to people doing that?
A. No.
CDC: No further questions. Thank you, ma'am.
MJ: Colonel Deaner, if you would, please return to the deliberation room and ask Colonel
Vanwiltenburg to return - excuse me, make that Colonel Strong.
[COL Deaner did as directed and COL Strong returned to the courtroom.]
Let the record reflect Colonel Strong has returned.
INDIVIDUAL VOIR DIRE OF COLONEL STRONG
Questions by the trial counsel:
Q. I believe you answered in the affirmative that you had heard something about a case that
the defense raised about a doctor who refused to deploy. Could you please elaborate on whatever it was
you heard?
A. Very minimal- the news, press, a media-type thing through television. I never looked at
it extensively.
Q. Did you follow up, have discussions about the case?
A. None whatsoever.
Q. Did you form any opinions about the case?
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A. No, I have not.
Q. Did you feel any particular animus to that person, whoever it was, when you read about
the story or heard about it?
A. I don't think I ever put a lot of thought into what was covered in the press.
Q. Even if it this were the same case, do you believe you could separate whatever you heard
previously from the facts as they come in, and fairly weigh the evidence in this case in accordance with
the judge's instructions?
A. I do.
TC: That's all I have for you, sir. The defense might have some questions.
MJ: Mr. Puckett?
CDC: Thank you, Your Honor.
Questions by the civilian defense counsel:
Q. Sir, regarding pUblicity surrounding this case, you indicated what you've heard and what
you were exposed to. I'll come at it from a little different perspective. When you heard about a soldier
refusing to deploy for his own reasons you're a professional soldier, you've been doing it for a long
time did you take personal or professional offense at hearing that a soldier would do that?
A. I think more as a former commander, I looked at issues that I experienced with other
soldiers, reasons why people generated comments to me as a leader, and I had to adjudicate those within
the command role that I previously had.
Q. So, the issue of having heard this on the news, you said you didn't really investigate it
further, right?
A. No, not whatsoever.
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Q. Did it cause you to think of that person in any certain way, either negatively or
positively?
A. It did not.
Q. Did you have any discussions with other people about that news item?
A. I have not.
Q. Sir, I think you also indicated that you had some kind of experience with congressional
inquiries. What would that experience be?
A. Numerous, in the roles that I've had. I've had congressionals I am the Force
Management Chief for the Army National Guard, so there are numerous congressional inquiries that are
done with respect to the role that I have.
Q. So numerous that it becomes a burden for you? Have you come to hate that process, or
how do you feel about the congressional inquiry process?
A. It is a challenging requirement for us to manage through, I will tell you that. When I say
"numerous," I'd say, on average, three or four in a given year.
Q. Do you think it is unfair that you should have to do that?
A. No, that is the role that we play to inform the civilian leadership on decisions that we
have made.
Q. Do you feel it is unfair to you, or any other staff officer, for soldiers to be able to write
their congressmen and for staff officers to have to reply to those through the command?
A. No, that is the right that those soldiers have.
Q. Is it an important right?
A. I think so.
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1 CDC: Thank you, sir.
2 No further questions, ma'am.
3 MJ: Colonel Strong, if you would, please return to the deliberation room and ask Colonel
4 Vanwiltenburg to join us.
5 [COL Strong did as directed and COL Vanwiltenburg returned to the courtroom.]
6 INDIVIDUAL VOIR DIRE OF COLONEL VANWILTENBURG
7 Questions by the trial counsel:
8 Q. I believe you indicated in the affirmative that you had heard something about the facts of
9 this case?
10 A. Yes.
11 Q. Could you please elaborate?
12 A. I just read about it when it first happened in April I just read it on Yahoo, a little bit of a
13 news article on it. I couldn't tell you anything on the details of it now, but I just remember hearing that
14 it had happened.
15 Q. You recall reading a news article in April that described the events that they'd occurred
16 recently?
17 A. Yes.
18 Q. Did you do any particular investigation, or did you read more about it?
19 A. No, I just saw it, it was on the top line of my Yahoo page, one article that was up there
20 for a day.
21 Q. Have you given it any thought since then?
22 A. No.
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Q. Did you fonn any particular opinions about that person when you read that article?
A. No.
Q. Did it personally offend you when you heard that?
A. No.
Q. Do you believe that whatever you read about on that case in April would impact your
ability, in the event this was the same case, to fairly weigh the evidence that comes in, in accordance
with the judge's instructions?
A. No, it wouldn't.
TC: Nothing else from the government, ma'am.
CDC: No questions, Your Honor.
MJ: Colonel Vanwiltenburg, if you would, please return to the deliberation room and ask
Colonel Mellon to corne out.
[COL Vanwiltenburg did as directed and COL Mellon returned to the courtroom.]
Let the record reflect Colonel Mellon has entered the courtroom.
INDIVIDUAL VOIR DIRE OF COLONEL MELLON
Questions by the trial counsel:
Q. You answered in the affinnative that you had heard something about the facts of this
case. Would you mind elaborating for the court?
A. I believe I saw an Anny Times article; as a matter of fact, this morning, when I got my
new copy of the Anny Times, I saw that the trial was starting today; I kind of put two and two together
that it would be this trial. I may have seen a TV press report with an interview.
Q. Would that have been sometime previous to this morning?
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A. Yes. We're talking probably the springtime timeframe.
Q. When you saw the Army Times article this morning, did you merely note, 'Oh, that must
be it' and move on, or did you then go ---­
A. No, 1just looked at it and went, 'Oh, this is what I'm doing today' and moved on.
Q. By "moved on," you didn't go onto Google or do any further research?
A. No, absolutely not.
Q. Have you formed any opinions about the case, based on what you read?
A. No.
Q. When you heard the story originally, did you - when you read the Army Times story, did
you remember having heard about it at that particular time? Maybe you said to yourself, 'I read an
article about it awhile back' ---­
A. 1just remembered that I'd seen it in the Army Times. There was an article in the Army
Times, and 1 may have seen an interview, but it didn't really stick in my head what 1 saw there.
Q. Either time, did you form a particularly strong opinion about the accused?
A. No.
Q. About the facts of the case?
A. No.
Q. Do you believe that whatever you heard or read at any previous time will impact your
ability to fairly listen to the evidence as it comes in, and obey the judge's instructions?
A. No, it won't impact me.
Q. In addition, 1 think you mentioned being aware of the "birther" movement, as the defense
referenced it?
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A. Yes.
Q. Was that in connection with this case?
A. I watch Fox News. Basically, that's where I heard about it.
Q. Once again, is that an issue that you have particular interest in? Have you looked into it?
A. No, I've just seen it on the news, but no interest in it.
Q. Without getting into details of your opinion, do you have a particularly strong opinion,
either way, positively or negatively, for those ideas or people who might think that?
A. No.
Q. Do you believe it would impact your ability to weigh the facts of this case, whatever
you've heard about the "birther" movement, or any awareness you have?
A. No, it shouldn't.
TC: That's all I have for you, sir. The defense might have some questions.
MJ: Mr. Puckett?
CDC: Thank you, Your Honor.
Questions by the civilian defense counsel:
Q. You think the birthers are crazy?
A. I've seen news reports on them. No, I don't think they're crazy.
Q. Do you think they're racist?
A. Not necessarily.
Q. So, when you first heard about the case that you then realized today that you were going
to be part ofthe Army Times case when you first heard about that, did you take personal offense at
another Army officer refusing orders?
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1 A. No, because - not really. We've had other cases going forward.
2 Q. Are you familiar with other cases where people have questioned their orders?
3 A. Yes. I mean, throughout the world, we've had that. We had it previously from Vietnam
4 on.
5 Q. It didn't jump out at you as something that offended you, being a career soldier?
6 A. No, just the fact that he was from Walter Reed, and he was local; that's what caught my
7 interest.
8 Q. You had some experience processing congressional inquiries?
9 A. Yes, I was a mobilization officer at both DA and National Guard Bureau, and we had
10 plenty of congressional inquiries about mobilizations and deployments.
11 Q. So, how do you feel about that process or that right?
12 A. We answered the questions; we gave them facts, and usually, they'd make a decision
13 whether or not that soldier would deploy or not.
14 Q. Did that make you angry that you had to do that?
15 A. No, it was part of my job.
16 Q. Do you think it is an important right that soldiers have to petition their legislators?
17 A. Absolutely.
18 CDC: No further questions.
19 Thank you, ma'am.
20 MJ: Colonel Mellon, if you would, please return to the deliberation room and ask Colonel
21 Ahn to come out.
22 [COL Mellon did as directed and COL Ahn returned to the courtroom.]
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"
Let the record reflect Colonel Ahn has returned.
INDIVIDUAL VOIR DIRE OF COLONEL AHN
Questions by the trial counsel:
Q. Sir, I believe you answered in the affinnative that you had heard or read something about
this case in particular?
A. Correct.
Q. Could you please elaborate for the court?
A. I just heard it through - there was conversations within our organization - not fonnal, just
chitchat and I heard certain things on the news. But nothing real deep, other than there was a court-
martial case against a doctor for not deploying.
Q. When you say "nothing fonnal," did you particularly investigate it or go research the
issue yourself?
A. No.
Q. Did you make the connection in your mind between the court-martial case and what you
were coming here to do?
A. Pretty much, yeah.
Q. But has that led you to fonn any opinions about this case?
A. No.
Q. Like I said, go search on Google about any witnesses, or any evidence, in this case?
A. No.
Q. Did you feel any particular animosity toward that person that you were reading about?
A. No.
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1 Q. Have you pre-judged any infonnation that you believe you'll hear regarding the facts of
2 this case?
3 A. No.
4 Q. Just to be clear is anything you heard previously going to impact your ability to fairly
5 weigh the evidence in this case, and comply with the judge's instructions?
6 A. No.
7 TC: That's all I have for you, sir. The defense may have some questions.
8 MJ: Mr. Puckett?
9 CDC: Thank you, Your Honor.
10 Questions by the civilian defense counsel:
11 Q. Sir, you mentioned there were discussions in your office. What were the discussions
12 about, sir?
13 A. What it was, from what I can remember maybe a month or so ago - just basically, 'I
14 heard that there's an Anny doctor that's being court-martialed for not following orders,' and that's
15 pretty much it.
16 Q. Did people make commentary about that, or express their opinions about that, that you
17 heard?
18 A. Not that I remember. Even if they did, it wasn't something that 1 was really cognizant of.
19 Q. Not very active on your radar?
20 A. No, not really.
21 Q. Did you take personal offense at it, as a career soldier, that another soldier would refuse
22 orders?
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A. No, not really. There's always two sides to every story, so before you make any kind of
judgment, you need to hear both sides. From my experience in the military, that's pretty much the way
things go.
Q. And that's what you're here to do today?
A. Yes.
CDC: Thank you.
MJ: Colonel Ahn, if you would, please return to the deliberation room and ask Lieutenant
Colonel Schmoyer to come out.
[COL Ahn did as directed and LTC Schmoyer returned to the courtroom.]
Let the record reflect Lieutenant Colonel Schmoyer has returned to the courtroom.
INDIVIDUAL VOIR DIRE OF LIEUTENANT COLONEL SCHMOYER
Questions by the trial counsel:
Q. I believe you indicated in the affirmative that you had heard something about the facts of
this case. Could you please elaborate for the court?
A. I was aware ofthe pUblicity of the name of the defendant; I felt that I needed to answer
that question affirmatively. I was a little concerned, because I'm not part of the factual discovery of the
case or that kind of stuff.
Q. Did you form any particular opinions, based on what you've heard?
A. I do have opinions based on what I've read, yes.
Q. When you say "what you've read," did you investigate it in great detail? Did you read it
in the news? On blogs? Where did you find out about the case?
A. Yes - news, blogs, yes.
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Q. How much have you read about the case?
A. I'd say, over the last 7 months or so, I've read quite a bit. In the last 2-3 months, I've
kinda lost interest in it. There was probably about a 5-6 month period where I was really following what
was gomg on.
Q. Following this particular case?
A. Yeah, especially around the election time, right after that, it kind of caught my interest.
Q. Do you have any particular opinions, positively or negatively, about Colonel Lakin,
based on what you've read?
A. I don't know that I have personal opinions, but I think a pretty strong professional
opinion. Does that make sense?
Q. Yes, to the extent that obviously, youweren't doing the research as a professional?
A. No, just kind of my own interest in news and what's going on, the politics of parties, that
kind of thing. I think because of the military nature of this, it caught my attention. You've now mixed
the military requirements and the political feelings -emotions, maybe. That caught my interest, and I
followed that.
Q. Understand, sir, this case was in the news, and obviously, you've read about it. Do you
think you'll be able to set aside whatever you read, or whatever thoughts you've had about the case, and
listen to the evidence? Because obviously, the evidence that's going to come in today at trial may not
have been what you've read there's obviously going to be more facts before the court. Can you set
aside whatever you felt previously, and judge the facts solely based on what comes in today?
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1 A. I will certainly try. I will tell you this, this is not my first panel, but this is the first time
2 where I'm kind a coming at this with more fore-knowledge than I have ever before. That's why I'm a
3 little - I just want to make sure you're aware that I know the name, I know what the press has said.
4 Q. Sir, just to clarify, you said you have been on a previous panel. You understand, based
5 on that panel, that you're not allowed to pre-judge the case?
6 A. I do, but I have formed an opinion without knowing I was going to sit on this panel.
7 Q. Is that a positive or negative opinion towards what you know of the facts?
8 A. Say that again.
9 Q. You said you formed an opinion - one that would prejudice your view towards one party
10 or another?
11 MJ: Captain O'Beime, I'm going to have you move on.
12 TC: The government has no further questions, sir. The defense might have some questions.
13 MJ: Mr. Puckett?
14 CDC: Thank you, ma'am.
15 Questions by the civilian defense counsel:
16 Q. What is your opinion?
17 MJ: If it didn't matter before ---­
18 CDC: Your Honor, it is important as to the granting of a challenge, ifhe's formed or expressed
19 an opinion, the answer is yes; it is important for both sides to know what that opinion is.
20 MJ: Why?
21 CDC: To know whether or not it can affect his ability to serve as a member.
22 MJ: I'll allow it, but please be brief.
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Q.
Sir, it was obvious to us from when you first popped your hand up that you had
researched the case, and you knew exactly what it was. Rather than ask if it is positive or negative,
because that's not attached to anything, what is your opinion about the facts ofthis case?
You. said 'I have an opinion.' What is that opinion?
A. My opinion is it is not the place ofthe defendant to make a decision about deploying,
based upon whether or not he believes the President is a citizen ofthe United States.
Q. That's your opinion?
A. That's my opinion.
CDC: No further questions, Your Honor.
MJ: Any follow-up from the government?
TC: No, ma'am.
MJ: Lieutenant Colonel Schmoyer, if you would, please return to the deliberation room.
[LTC Schmoyer withdrew from the courtroom.]
MJ: I assume both sides didn't want to hear from Colonel Torisi?
CDC: That's correct, Your Honor.
TC: Correct, ma'am.
MJ: Would you like a few moments to decide what, if any, challenges for cause you may
have?
CDC: Y es, Your Honor, please.
TC: Yes, please.
[The counsels discussed amongst themselves as suggested by the military judge.]
MJ: Is the government ready?
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1 TC: Yes, Your Honor.
2 The government has no challenges for cause.
3 MJ: Defense?
4 CDC: Y es, Your Honor, we would challenge Lieutenant Colonel Schmoyer for cause, as having
5 already formed an opinion.
6 MJ: Any objection by the government?
7 TC: Your Honor, in light of the high-profile nature of the case, it is tough not to, but the
8 government understands what he put on the record.
9 MJ: That challenge for cause is granted.
10 Any other challenges for cause?
11 CDC: No, Your Honor.
12 MJ: Peremptory challenge from the government?
13 TC: May we have another moment, rna' am, in light of that?
14 [After conf«rring with co-counsel.] The government has no peremptory challenge, Your
15 Honor.
16 MJ: Defense?
17 CDC: Yes, Your Honor, we would challenge Colonel Thompson.
18 MJ: That leaves us with eight members. Is that correct?
19 TC: Y es, Your Honor.
20 MJ: Colonel Gerding will now be the president.
21 I notice now it is 1345. We'll recess the court now for a late lunch, and begin at 1500.
22 Does that work for the parties?
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1 CDC: Yes, Your Honor.
2 TC: Y es, Your Honor.
3 MJ: Is there anything else we need to address before we recess the court?
4 TC: No, ma'am.
5 CDC: No, Your Honor.
6 MJ: Are both sides satisfied if I advise the bailiff to advise Colonel Thompson and Lieutenant
7 Colonel Schmoyer that they do not have to return?
8 CDC: Absolutely, ma'am.
9 TC: Yes, ma'am.
10 MJ: Court is in recess.
11 [The session recessed at 1349, 14 December 2010.J
12 [The session was called to order at 1508, 14 December 2010.J
13 MJ: This Article 39(a) session is called to order.
14 Let the record reflect all parties present when the court last recessed are again present in
15 court; the members are absent.
16 Is there anything we need to address before we call the members?
17 CDC: No, Your Honor.
18 TC: No, ma'am.
19 MJ: Please call the members.
20 [END OF PAGE]
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1 [The members entered the courtroom at 1510, 14 December 2010.]
2 MJ: Let the record reflect the members have returned.
3 Members ofthe panel, we are going to proceed with opening statements by counsel. I
4 advise you that opening statements are not evidence; rather, they are what counsel expect the evidence
5 will show in the case.
6 Does the government have an opening statement?
7 TC: We do, Your Honor. We'd just like the record to reflect that the members are present,
8 except Colonel Thompson and Lieutenant Colonel Schmoyer, who have been excused.
9 MJ: Thank you.
10 ATC2: May it please the court - Your Honor, at points, may I dim the lights for the purpose of
11 projecting?
12 MJ: Certainly.
13 ATC2: Colonel Gerding, members of the panel, this spring, the 1I32
nd
ofthe 101 st Airborne
14 Division deployed to a remote region of eastern Afghanistan, near the Pakistan border, without the
15 squadron surgeon assigned to the unit; that doctor was Lieutenant Colonel Terrence Lakin.
16 Colonel Lakin had temporary change of station orders bringing him to Fort Campbell,
17 Kentucky to join the unit in advance of the deployment, and he refused to go. That's why Colonel Lakin
18 sits before you today as the accused, while the unit remains at FOB Bostic.
19 As the judge said, this is the point of the case where the government will discuss the
20 evidence we expect to bring in, introduce you to some of the key players and some of the key witnesses.
21 The accused was a member of the Medical Center Brigade at Walter Reed Anny Medical
22 Center. His brigade commander was Colonel Gordon Roberts. The accused worked at the DiLorenzo
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Tricare Health Clinic at the Pentagon. His supervisor there for clinical operations was Lieutenant
Colonel Christine Edwards, and the acting commander during the pertinent time period in question was
Lieutenant Colonel William Judd - we'll hear from all of them.
You'll hear testimony from the Medical Center Brigade S3, Major Dominick Ivener,
about how the accused was a PROFIS -a Professional Filler System - assignee to the 1/32
nd
- he was
their doctor for the deployment. He was issued TCS orders to support that deployment, and to get him
to Fort Campbell to join the 101
st
in advance of their deployment.
At this point, 1'd like to have you take a look at those TCS orders, which have been
previously admitted as Prosecution Exhibit 3, and you're looking at slide two of the slide show.
[A copy of PE 3 was displayed.]
Let's look at some of the pertinent language - I'll give you a moment to review.
[After pause.] Temporary Change of Station, assigned to the 32
nd
Cav, 101
5t
Airborne
Division (Air Assault), in support of Operation Enduring Freedom, no later than 1500 hours, 12 April
2010 thru 8 July 2011, or until mission complete.
You'll hear testimony from Ms. Sarah Behan, who was the budget analyst at the
DiLorenzo Clinic, who the accused took his TCS orders to to coordinate the movement to comply with
the TCS order. Together, and at the accused's direction, they chose a flight for 12 April 2010 that would
depart from Baltimore-Washington International Airport on a US Airways flight through Charlotte,
North Carolina, where there was a connecting US Airways flight to Nashville, Tennessee, to arrive in
advance of the report date. There was someone of the gaining unit who was waiting at the airport, who
the accused had coordinated with to pick him up when he arrived.
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You'll also hear testimony that the accused made a conscious decision not to go, to miss
the movement. The testimony you'll hear is that before missing the movement, he announced to the
Deputy Commander of the Medical Center Brigade that he might not go, and he made similar
announcements to the supervisors at the Pentagon, Colonel Judd and Colonel Edwards.
On 29 March 2010, about 2 weeks out from this report date, he scheduled, using the
open-door policy, a meeting with the Medical Center Brigade commander, Colonel Gordon Roberts, for
the following day. You'll hear testimony that Colonel Roberts was unable to make that meeting, but
that the accused did meet with the Executive Officer of the Medical Center Brigade, and expressed those
reservations, and that subsequent to this, these conversations with Colonel Judd and Colonel Edwards
took place.
When Colonel Roberts found out about this, he decided he wanted to see his soldier; he
wanted to find out what was going on with his soldier, what would make a soldier pursue a course that
could only decidedly have perilous consequences for him. He also wanted to discuss the importance of
the pending TCS, the importance to the mission and to MEDCOM, to the Army, the 32
nd
Cav, and he
wanted to look his soldier in the eye and see if these reservations were actually going to preclude him
from fulfilling his duty, and whether he needed to scramble and find a backfill for that slot, to make sure
that MEDCOM filled its role in the PROFIS system.
So, Colonel Roberts ordered the accused, through Colonel Judd, to appear at the Medical
Center Brigade at 1345 hours the day following the open-door policy appointment that he missed. But
the accused didn't go. At that point, Colonel Roberts still had to impress the importance of those points
that I just brought up the mission, whether the accused was fulfilling this course of criminality,
whether he was going to actually fulfill or whether a replacement needed to be scrambled; and to add to
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the matters, the accused was scheduled for pre-deployment leave the next day, 1 April. So, he decided
to give along with Colonel Judd, they were going to give him two documents to impress the
importance of this on the accused.
The first document they gave him was a written order to report to the Medical Center
Brigade.
[PE 6 was displayed.]
The operative portion - we're looking here at Prosecution Exhibit 6, which is on slide
four.
[After pause.] Because the accused was still at the DiLorenzo Clinic at this time, Colonel
Judd was the one who delivered this order to the accused. Along with that order, he gave him a second
document, a second piece of paper, and that was a DA Form 4856 counseling statement, instructing the
accused what the obligations expected of a soldier and officer were; instructing the accused about the
potential negative consequences, to include court-martial, that could assure ifhe continued down this
path and he missed - as he said he may - the TCS movement scheduled for 12 April. Take a look at that
DA Form 4856.
We're looking at Prosecution Exhibit 5, which is on slide six of the show; the operative
portion, I'll give you a moment - it is a little bit more lengthy; this is from the "Points of Discussion."
[After pause.] You'll hear testimony that while this was delivered by Colonel Judd,
along with that written order, it was prepared by Colonel Roberts, who wanted to impress to the accused
the importance of those points.
So, the accused was in possession of both ofthese documents when he decided not to
report at 1700 to the Medical Center Brigade. Colonel Roberts and the unit decided to allow the accused
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to take his pre-deployment leave, and you'll hear that the goal was to convince him, to give him some
time to collect his thoughts, and comply with the TCS orders - that was the ultimate goal, to make sure
that he joined the unit in advance of their deployment.
On 12 April, despite those TCS orders, and despite the counseling statement, the accused
showed up at the DiLorenzo Clinic at the Pentagon at 0700 hours. You'll hear testimony from
Lieutenant Colonel Edwards about her surprise to see him there, and that she attempted to seek guidance
from higher about what to do with him, since he was there as opposed to following the TCS order.
Colonel Edwards told the accused that there was still time, that he could still make his flight, ifhe would
leave, to get up to Baltimore-Washington and avoid missing the movement. But the accused decided not
to go.
At the end of this case, what will be clear to you is that the accused had a duty to be on
that flight, the flight that he chose, and the flight that would get him to Fort Campbell on the last day to
comply with the PCS orders, and to join the unit in advance of their deployment. But the accused didn't
go, and that's why he is here today, and that's why the unit is still at FOB Bostic near the Pakistan
border.
We'd ask that you consider all the evidence in this case, review it closely, all the
evidence presented by both sides; keep an open mind during the course of your deliberations; and we're
confident that when you come back and consider all the evidence, you'11 find the accused guilty of the
charge. Thank you.
MJ: Mr. Puckett?
CDC: Thank you, ma'am.
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Folks, I'm going to have to tell you that I agree with 98 percent of what the prosecutor
just told you; the problem is that what he was talking about it's not a problem, really, it is kind of an
issue of relevance. What he was talking about remember that you have those two flyers in front of
you. One ofthem has to do with missing movement, and that's where you're going to decide whether or
not Lieutenant Colonel Lakin is guilty or not ofmissing movement. The other one you have is three
offenses, comprising failure to report one of them, the most serious one is failing to report to Fort
Campbell in accordance with those TCS orders you saw up there, and you'll get a copy for yourself to
take a look at; the other two have to do with missing a meeting with his brigade commander. That's
what he was talking about. All those things about the brigade commander wanting to see him, talk to
him about the importance of deploying, advising him against disobeying his orders and all that - but he
said something very important, and I wanted to quote it.
He said - talking about the purpose of counseling Lieutenant Colonel Lakin, he said, "To
comply with his TCS orders, that was the ultimate goal." To get him to comply with his TCS orders.
What the evidence is going to show you - remember, you don't have to worry about the
violating of orders, because he's already pled guilty to that, and been found guilty of that, and you're
going to be able to consider that in detennining an appropriate sentence later on in this process, perhaps
today, perhaps tomorrow.
But you're going to be given a whole stack of documents that is comprised of 20 exhibits,
and they are things like what you saw orders, counseling, reservations for a flight he was talking
about, the US Airways flight. But if you look closely at the specifics ofthe charge, the thing that you're
going to have to focus on is what the evidence will not show. Let me just talk about that.
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The evidence is going to show I want to be simpatico with the prosecutor here the
evidence is going to show that he missed the movement of an aircraft, and he did it intentionally. But
what the evidence will not show, what you'll not hear from any witness, and you will not find in any
document, is any prescription of a duty. If you'll take a look at the charge, that Article 87 in front of
you, just take a quick look at it, it says that he, "through design, miss the movement of specific flights on
US Airways."
What you'll find when you look at his TCS orders is that they authorize him to travel, as
you have been authorized to travel many times in your careers, by POV. He could travel by POV, or he
could travel by bus, or he could travel by train. A reservation was made as a courtesy to him, which he
cooperated with in terms of picking a flight and all that. But the important thing that you're going to
have to look for is it seems almost too simple to even be talking about here, but whenever folks miss
deployments, the government wants to charge missing movement, and that's usually because there is a
charter aircraft, a whole unit climbs on; Joe decides he's not going to make the flight, or he needs to stay
home with Mom because she's having problems, and he misses the movement of that aircraft, because
the whole unit is moving.
Now, we're trying to shoehorn into that generalized concept of when somebody misses
deployment that they are also missing movement, so how do we figure that out? Well, he had a flight.
Let me just tell you what the military judge is going to tell you, so you can focus on the evidence that's
in front of you. I'm going to ask you challenge the government to show you, to prove to you, beyond a
reasonable doubt, that his - we already know that he had a duty to execute his orders. We get that, he
has pled guilty to that. But was there a duty to be on a specifIc US Airways flight?
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Not only will you not have that proof beyond a reasonable doubt, you won't have any
proof of that at alL There won't be any testimony or any document that told him, that somebody in
authority over him said, 'Lieutenant Colonel Lakin, I'm counseling you to execute these orders and
report as ordered, and I'm telling you that you had better be on US Airways Flight, ... ' and fill in the
numbers. Nobody said that. Nobody put that in writing, nobody put that in an email, nobody verbalized
that.
What you're going to come to understand is, he has already pled guilty to what he did
wrong. He didn't do this wrong, so he can't plead guilty to it. Here are the elements ofthe offense that
you need to be thinking about, that the judge is going to tell you
The first one is the most important one ---­
ATC2: Your Honor, I object to this.
MJ: Mr. Puckett, you need to move on to what the facts of the case will be; I'll instruct the
members on what the elements are.
CDC: Yes, yes, the facts of the case - the evidence is going to show that the accused knew of
the prospective movement of the aircraft that is in the charge; the evidence will show that he knew of
that flight, when it was departing, where it was going. He knew of that, because he participated in
making the reservations.
The evidence will show that he missed the movement of that airplane, of that US Airways
flight.
The evidence will show that he missed the movement through design; that's what the
guilty plea was there for. He decided he wasn't going. Of course, he missed the airplane.
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What the evidence will not show is that he was required in the course of duty to move
with that particular flight. That's what they have to prove to you in order for you to find him guilty of
this offense.
I hate to - I don't want to oversell it here, but I think all you have to focus on is that the
ultimate goal here, as the prosecutor said, was for him to comply with his TCS orders. You will see in
his orders that he was authorized to travel by POV, so even though - the evidence will come out that
that flight could've been cancelled, it could've been changed; he could've driven; he could've had
somebody drive him there - that was all authorized.
Folks, again, I don't want to oversimplify it here, because I don't think I can oversimplify
it - it is just very simple. All those things are true, except that this officer did not have the duty, a
military duty, to get on board those US Airways flights. And that's what the evidence will show. The
evidence will show an absence of a duty.
I want you to focus on that, because as the military judge will later instruct you, unless
each and every element is proven to you beyond a reasonable doubt, you must return a finding of not
guilty.
At the end of all the evidence, you'll see what I've been talking about, and you'll simply
find him not guilty; we'll come back, we'll proceed on with the court-martial, which will be sentencing
for the offenses for which he has already been found guilty, and it will be that simple.
MJ: Government, are you ready to call your first witness?
A TC: Ma'am, the government calls Major Dominick Ivener.
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MAJOR DOMINICK IVENER, US Army, was called as a witness by the prosecution, was sworn
and testified as follows:
DIRECT EXAMINATION
Questions by the assistant trial counsel:
Q. Sir, you are Major Dominick Ivener of the Medical Center Brigade at Walter Reed Anny
Medical Center?
A. Ycs, I am.
Q. Sir, what is your current position at the Medical Center Brigade?
A. I am the Brigade S3 for the Medical Center Brigade Operations and Training at Walter
Reed.
Q. How long have you been in that position, sir?
A. A little bit over a year, since about August oflast year.
Q. Do you know Colonel Lakin, the accused in this case?
A. I've spoken to him, I believe, once on the phone, and emailed him a few times.
Q. How about in your S3 capacity? Do you know Colonel Lakin?
A. Through that email conversation, and I believe we spoke maybe once or twice on the
phone.
Q. When did you first make contact with Colonel Lakin in your S3 capacity?
A. I believe it was mid-February when we initially received orders for Colonel Lakin's
deployment; we received a tasking and made contact with him. My office made contact with him and
his chain of command.
Q. Why did you make contact in the middle of February?
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A. We received a tasking from our higher command for his deployment in mid-February; we
received the order for his deployment in April. Generally, when we receive the taskings, then we send it
to the individual and their chain of command, alerting them that the tasking has come down for their
deployment.
ATC: I'm handing the witness Prosecution Exhibit 1.
Q. Sir, is this a copy of the tasker that your office sent to Colonel Lakin?
A. Yes, it is.
Q. Could you please turn to the second page?
A. [Did as directed.]
Q. Is that your signature block?
A. It is.
Q. Is it signed?
A. No, it is not signed. We generally don't sign these; these are, more or less, warning
orders that come down from our tasking system. We get these quite regularly, where this provides the
medical provider the opportunity to see that the orders will be coming. This also alerts their unit to
assist them in any capacity for their deployment, and for issuing of equipment and whatnot.
Q. What's the date on the tasking?
A. This is February 16
th
, for the deployment date of 12 April.
A TC: I'll take Prosecution Exhibit 1 back from you.
Q. Sir, did orders get issued from that tasker?
A. Yes, they did.
Q. Where did that tasker come from? What system?
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A. What generally happens is our higher medical command, MEDCOM, in coordination
with individual providers, specialties of medical providers, the consultants, they get together and they
identify individuals who will be providing other units with medical specialties. The system is called
PROFIS, or the Professional Filler System. This, in tum, allows us to assist individuals who have been
identified to fill certain positions as medical providers.
Once their time has come up, or if a unit is deploying, then individuals are then alerted
through a tracking or tasking system that our office monitors. When that individual has been alerted, we
pull the data from this tracking system, and we take the data and put it into this tasking order that you
just presented and alert the individual and their unit.
Q. Just to be clear, sir, why are officers selected via the PROFIS process?
A. For their medical specialty, to assist individual units for medical augmentation.
Q. Once the PROFIS tasker is generated, how are orders cut from that?
A. Once we've received the data from these taskings, our office then submits it to the .
Military Personnel Division, MPD, and they cut official orders, such as temporary change of station
TCS - orders; an individual is then issued these orders, copies are then sent from MPD to our office, the
S3 office, where we insure that information has been inputted.
Q. After you insure that the information has been inputted properly, where do the orders go
from there?
A. Then we take and tum those orders, and we insure that the chain of command of the
individual doctor is alerted, as well as sending it to the specific - it is not just the doctor, but the medical
provider or individual who is deploying, we make sure that they get a copy, and the chain of command
gets a copy of those orders.
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Q. Did you have email exchanges with Colonel Lakin about his orders?
A. Originally, the first set of orders that came through in mid-February, there was a typo on
them, and our office did send them directly to Lieutenant Colonel Lakin, as well as his chain of
command. When I identified there was a typo, our office confirmed, and I specifically emailed back and
forth with Colonel Lakin that it was a typo, and we were working to get it corrected.
Originally, the first set of orders said that his deployment date was March, when, in fact,
it was April 12th, and we worked to have those corrected.
Q. April 12th, was that the date reflected on the original tasker?
A. Yes, it was.
Q. What was Colonel Lakin's concern in these email exchanges?
A. The first email exchange I had with Lieutenant Colonel Lakin was, since the original
orders were incorrect, and they initially said March, he was concerned, because that didn't give him
much time. His email back to me said something to the effect that he didn't want to miss movement for
that date, and to please ensure that the date was correct, that, in fact, it would be April instead of March.
Q. Did you fix the orders?
A. Yes, we did. We had the MPD correct the orders, and there was a corrected copy issued,
I believe, in early-March that did reflect the 12 April deployment date.
Q. That was the second set of orders - was there a third set of this TCS order?
A. There was, in fact, a third set. I believe it was the end of March or the beginning of
April, it was identified that in the corrected version of the orders, it was sending Colonel Lakin to the
CRC, instead of directly to the unit. But the dates were fine; it was just that, in the corrected copy, it
shouldn't have said CRC, it should've just had him directly reporting to the lOIs" as originally ordered.
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1 So, a third set was issued. It wasn't a typo; there was an actual paragraph that had to be omitted, which
2 was the CRC paragraph. They rescinded the corrected copy; I say "they," the MPD rescinded the
3 corrected copy and then republished orders, I believe, it was early-ApriL
4 Q. Sir, why did the CRC portion have to be removed and exchanged for the unit wording?
5 A. In Colonel Lakin's particular case, he was to report directly to the unit. Occasionally,
6 units like the 101 st require that medical providers arrive at the unit prior to the deployment, in order for
7 RFI, or the rapid filling initiative, issue. Also, from what I understand, so the medical provider will
8 have time with the unit; in this case, it would've been about 30-45 days prior to their deployment. That
9 way, the medical provider gets to know the chain of command, the personnel that they'll be deploying
10 with, and it gives them a few days, at least, to be recognized as their PROFIS doc to the unit.
11 Q. What else happens in that 30-45 days?
12 A. Generally, that's a train-up. I don't know specifically for this particular unit. Usually,
13 other than administrative processing with the unit, they do have some train-up involved. Like I
14 mentioned, mostly to get the medical provider accustomed and enjoined with the unit that they'll be
15 traveling with. It is an important part of what the unit requires.
16 ATC: I'm handing the witness Prosecution Exhibit 3.
17 Q. Sir, what is this?
18 A. This looks like the final set of orders.
19 Q. What's the order number on those?
20 A. Order 099-17, dated 9 April.
21 Q. What is the "report date and time," sir?
22 A. The report date, 1500 12 April 2010.
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1 Q. Is this the order that you sent to Colonel Lakin?
2 A. I believe it is, yes.
3 ATC: Retrieving Prosecution Exhibit 3 from the witness.
4 Q. Who sent them to Colonel Lakin?
5 A. Those final orders, I believe I sent a copy to him. I sent it to his chain of command; we
6 sent them to the company, his office administrative assistant and to him. I sent a copy to some folks in
7 his office that I'd been told will be able to make sure he gets it, because I believe he was on leave on
8 April 9
th
, or he'd taken some time. We wanted to make sure that that final version was sent to him. The
9 only change in that final version was just the CRC; the orders before that also had the same date on
10 them.
11 Q. Everything else from the previous orders was the same?
12 A. I believe so.
13 Q. Sir, do you know if Colonel Lakin reported to the unit?
14 A. I was told he did not.
15 Q. Did you have to do anything to fill the position?
16 A. Once we were notified that Colonel Lakin had told my chain of command that he would
17 not be deploying ---­
18 Q. When was that, sir?
19 A. I don't remember, specifically, the date; I know it was late-Marchlearly-April that he'd
20 come to my XO and said that he would not be deploying, for whatever reasons. We had to alert the
21 chain of command that ifhe, in fact, did not deploy, then another medical provider, a doctor, would have
22 to fill his position, as the 101st was deploying and needed a specialty. We worked with our higher chain
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of command, but the consultants for his specialty, working with the Medical Command, fill those
positions; they're the ones that fill the PROFIS positions, and they'd be responsible for identifYing a
replacement.
Q. Did it cause disruption in the unit?
A. It was a last-minute replacement. Of course. We had to identify another individual. I
then contacted the gaining unit, so we, pretty much, had to let them know that someone would be
coming eventually, but we couldn't identify when. We had to make coordination for when the other
person would be arriving, and all the logistics that go with that, from their transportation to their lodging
requirements.
A TC: Thank you, sir.
MJ: Mr. Puckett?
CROSS-EXAMINATION
Questions by the civilian defense counsel:
CDC: I'm going to hand you Prosecution Exhibit 1.
Q. You said you don't sign it, but it has your name on it?
A. Yes, sir, that is correct.
Q. Can you point out to me on there where, if anyplace, that tasker directs Lieutenant
Colonel Lakin to fly aboard US Airways Flight 1123?
A. It does not.
Q. It does not?
A. No, sir.
CDC: Taking that back from the witness.
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I'm now going to hand the witness Prosecution Exhibit 3.
Q. You just had this in your hand I'm sorry to do this again. The same question you're
fairly familiar with the deployment orders, you've seen a lot ofthem?
A. Yes, sir.
Q. Is there anywhere on there that requires Lieutenant Colonel Lakin to fly aboard US
Airways Flight 1123?
A. No, it does not, sir.
Q. Is there any place on those orders that requires him to travel from the Washington
Metropolitan area to the vicinity ofFort Campbell, Kentucky via airplane?
A. No, sir, it does not, not to my knowledge. I'll have to go through this again - I don't
believe it does.
Q. Actually, there's an authorization to travel by POV, is that correct?
A. [Affirmative response.]
Q. Is that standard in these types of orders?
A. Yes, sir.
Q. It limits reimbursement, but POV is authorized, right?
A. Yes, sir, that is correct.
Q. Did you personally back in March and April of this year, were you in a position of
direct command authority over Lieutenant Colonel Lakin?
A. No, sir.
Q. So you didn't issue him verbal orders to be on US Ainvays Flight 1123 on 12 April?
A. No, sir.
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CDC: No further questions, Your Honor.
MJ: Redirect?
ATC: Yes, ma'am.
REDIRECT EXAMINATION
Questions by the assistant trial counsel:
Q. Sir, do you remember any exchanges that you had with the incoming command about
transportation for the accused?
A. Transportation as far as ---­
Q. Once he arrived at his gaining unit?
A. Absolutely.
CDC: Objection, relevance.
MJ: Trial counsel?
ATC: It goes to what the defense just asked about, Your Honor, the particular means that the
accused chose in getting to his gaining unit.
MJ: This was communication between the gaining unit and the witness?
ATC: Yes, ma'am.
MJ: Is there any evidence it was relayed to the accused?
ATC: Yes, ma'am, it was the accused's movement.
MJ: I understand that. Is there evidence that whatever you're trying to elicit applied to the
accused?
ATC: Yes, ma'am, I'm sorry. It was communication between Major Ivener and the accused
regarding his movement.
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MJ: Do we need an Article 39(a) session?
CDC: We may, ma'am. I may need to add a hearsay objection as well to the relevance
objection.
MJ: Members ofthe panel, I'm going to ask you to step out briefly; I'll be calling you back
shortly.
[The members withdrew from the courtroom at 1547, 14 December 2010.]
[END OF PAGE]
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1 MJ: The record will reflect that the members have departed.
2 Do we need the witness to depart as well?
3 TC: Your Honor, perhaps the witness should answer the question to make clear what the
4 government's proffer is. We want to make sure the defense understands exactly what testimony we're
5 trying to elicit.
6 MJ: We'll go ahead with that in a 39(a) session.
7 Q. Sir, did you make any arrangements with the accused regarding his transportation when
8 he got to the gaining unit?
9 A. I specifically would not talk with Colonel Lakin for his transportation to the unit. My
10 coordination was with the unit to pick him up upon arrival. He had been ­ arrangements had been made
11 for Colonel Lakin to fly to Nashville, to arrive in Nashville. I had gotten a copy of his flight itinerary
12 from his office, and I'd made arrangements with the gaining unit to pick him up in Nashville on the 12th
13 - I believe it was approximately noon for the arrival.
14 ATC: Your Honor, we're specifically looking at the disruption portion of the missing
15 movement, and the effect that Colonel Lakin's missing of that movement had on the command.
16 CDC: Actually, ma'am, that's a relevance objection, too, because that goes to sentencing, ifhe
17 is convicted of this, for the disruption it'd cause; or it could also go offenses to which he has already
18 been found guilty.
19 MJ: What are you looking at for ---­
20 A TC: Specifically, I'm looking at, "to be guilty of this offense, the accused must have actually
21 known of the prospective movement - I'm sorry, ma'am ­ "It does not violate Article 87 when such
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failure is unlikely to cause foreseeable disruption of military operations," so we're looking at the actual
disruption that was caused by the missing movement.
MJ: At this point, you're not connecting this with Lieutenant Colonel Lakin?
ATC: The accused had the transportation arranged with the command, so that he could have
transportation to his incoming command.
MJ: Are you going to ask anything else?
ATC: That's it, Your Honor.
MJ: Your objections are relevance and hearsay?
CDC: Yes, rna' am, relevance and hearsay, but mostly that it is not relevant, because he said he
didn't communicate that to the accused anyway.
MJ: I understand that, Mr. Puckett, but in the case law, there is some articulation by the courts
that not just any movement is prosecutable under Article 87; that there's got to be a disruption to the
unit. So, I'm going to overrule your relevance objection.
With respect to the hearsay objection, is it the defense's position it was offered for the
truth of the matter asserted?
CDC: Yes, Your Honor.
MJ: Government?
A TC: The coordination, Your Honor, actually goes to the act, the disruption, not to what was
said. The coordination goes to what Major Ivener did, the act; it doesn't go to the truth of the matter as
to what was said, it goes to the fact that thc coordination was actually taking place, and that a specific
movement was taking place, not the truth of what was being said about the movement.
MJ: The fact that words themselves were said isn't the issue?
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ATC: Yes, ma'am.
MJ: Anything else, Mr. Puckett?
CDC: Yes, ma'am, but she has cut off what she tried to prove. She wants to prove that his
hearsay statement, "I contacted the gaining unit and made arrangements for him to be picked up," that's
the disruption. The disruption is that he didn't show up, he didn't show up where people were expecting
him, that's the disruption they want.
The only proof they're offering of that is his out-of-court statement offered for the truth
of the fact that arrangements were made, and therefore, there was a disruption. It is not just that he said
it he could say it into an empty - nobody on the other end of the phone. But they're offering it for the
truth of the matter that there were arrangements made on the other end, and that they were, therefore,
disrupted by his missing the movement.
MJ: I'm prepared to rule. I'm going to overrule the defense objection on both grounds; for
hearsay, it is not an assertion about the truth of something that occurred prior, it is about what the
witness testified he advised the command to do in the future, so the hearsay objection is overruled.
Anything else we need to address before we call the members?
ATC: No, ma'am.
MJ: Mr. Puckett, is there anything else we need to address before we call the members?
CDC: No, ma'am.
MJ: Please call the members.
[END OF PAGE]
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[The members returned to the courtroom at 1554, 14 December 2010.]
MJ: Let the record reflect the members have returned.
Captain Overgaard?
Q. Sir, did the unit make arrangements for transportation for the accused once he arrived at
Fort Campbell?
A. The gaining unit, in Nashville, Tennessee. I had been speaking with the medical officer
for the unit to - either him or one of his soldiers, at that time, would be at the airport to pick up Colonel
Lakin, ifhe arrived.
ATC: Thank you, sir.
MJ: Any recross?
CDC: Yes, Your Honor.
RECROSS-EXAMINATION
Questions by the civilian defense counsel:
Q. Major Ivener, if you know, was the gaining unit also picking up other soldiers who were
arriving at the same time at the airport?
A. I don't remember specifically if it was the same day; I don't know for sure if there were
other people arriving that same day.
CDC: Thank you.
No further questions.
MJ: Any questions from the members?
MEMBERS: [Negative responses.]
MJ: Apparently not.
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[The witness was duly warned, temporarily excused and withdrew from the courtroom.]
ATC: Ma'am, the government calls Ms. Sarah Behan.
SARAH BEHAN, civilian, was called as a witness by the prosecution, was sworn and testified as
follows:
DIRECT EXAMINATION
Questions by the assistant trial counsel:
Q. You are Ms. Sarah Behan of DiLorenzo Tricare Health Clinic at the Pentagon?
A. Yes, ma'am.
Q. Ms. Behan, what is your current position at DiLorenzo?
A. I'm the budget analyst; as part of that, I handle most of the Defense Travel System travel,
the authorizations and vouchers.
Q. When did you start in that position?
A. I started November 30,2009.
Q. Do you know Colonel Lakin, the accused in this case?
A. Yes, ma'am.
Q. How do you know him?
A. He'd come to me to book his flight to Fort Campbell, when he got his deployment orders.
Q. How did you assist him in booking that flight?
A. He had left me with his TCS orders, his phone number, and personal email. So, I called
our travel office, Carlson Wagonlit, and asked for flights that were appropriate to get him there to report.
I then called him, we chose a flight, and I booked that flight.
Q. Do you remember when that was?
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A. When he dropped offhis deployment orders, that would've been March 27th or 28
th
; we
booked the flight the morning of March 29
th
.
Q. Do you remember why you had his personal email address and cell number?
A. He was going on leave prior to deployment, that's what he told me.
Q. When you called him with the flights, what happened?
A. There were two flights that were available there was the flight we picked at 8:40, and
one other, I don't remember the time. He chose the 8:40 out ofBWI, and I called back Carlson and
booked it.
Q. Who chose the airport he was leaving from?
A. He did. He lives north of Baltimore, and wanted to fly out ofBWI.
Q. Who chose the flight?
A. Colonel Lakin.
Q. What happened after he chose the flight?
A. I booked the flight, and I sent his TCS orders to the NARMC agency program
coordinator for the government travel card to tum on his travel card, so he could ticket the flight. After
that, she wouldn't do it; there was an issue with the way the orders were published, so I contacted
Sergeant First Class Jenkins in the PROFIS office to assist in ticketing the flight, either through his
orders or to tum on the travel card.
Q. Why did the travel card need to be on?
A. Normally, in my experience, a government travel card would be on throughout a
deployment for incidental expenses deployment flights, any incidentals getting to the OCONUS
station.
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Q. Did Colonel Lakin have any specific concerns about his travel card being turned on?
A. Not that I remember. I know I have an email asking if it was all set, but at that point, it
was mostly being handled by Sergeant Jenkins and Major Ivener.
Q. Do you remember when you booked the itinerary?
A. The itinerary was booked March 29
th
; we got it ticketed, billed to the TCS orders, on
April 5
th

Q. Did you send that to Colonel Lakin?
A. I did. I sent it to, I believe, his government email and his personal email, the ticketed
itinerary. I would've sent that April 5
th
, as soon as it got ticketed.
Q. Did he confirm receiving that?
A. I don't remember ifhe confirmed at that point, but I do know that he received it. I don't
remember when I spoke to him.
Q. Did he, in the future, confirm that flight?
A. Yes.
Q. Did he confirm anything else?
A. He'd tried to confirm his transportation, since we couldn't tum on the travel card, for a
rental car; he was just confirming how he would get to Fort Campbell from the Nashville airport.
There's email traffic mostly about his arrival at Nashville and getting to Fort Campbell.
Q. Did you send Colonel Lakin any other information?
A. I had information from Major Ivener about points of contact at Fort CampbelL I had
Captain Ramon's number, and I believe it was a Major Garcia.
Q. Who are they?
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A. All I know is that they are points of contact at Fort Campbell; I think they were with the
deploying unit. But all the information that Major Ivener had, he asked me to pass on to Colonel Lakin,
and confirm that he got it.
Q. Do you know if Colonel Lakin took that flight?
A. He did not take that flight, no.
Q. How do you know that?
A. I believe I saw him in the office, but when I called Carlson Wagonlit 2 days later to
confirm, the flight had not been taken; through their system, they can see when a flight has been used.
ATC: That's all. Thank you.
MJ: Mr. Puckett?
CDC: Thank you, ma'am.
CROSS-EXAMINATION
Questions by the civilian defense counsel:
Q. Are you in the Army?
A. I'm in the National Guard, but I serve here as a contractor.
Q. So, did you make these arrangements in your role as a contractor?
A. Yes, sir.
Q. I'm assuming that you're not in a position of authority over Lieutenant Colonel Lakin in
any way?
A. No, sir, I'm just an administrative budget person.
Q. You can't issue him orders, give him commands, anything like that?
A. No, sir.
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Q. So you didn't, at any time, tell him that he had a military duty to be on that flight that you
booked for him?
A. No, sir.
Q. That wasn't something you could do, right?
A. No.
Q. You said you booked it on March 29
th
?
A. Yes, sir.
Q. Do you do a lot of these bookings for folks?
A. I don't do many deployment bookings, but I do most of the travel for the clinic.
Q. I'm just talking about making travel arrangements.
A. Yes, sir.
Q. Do you do lots of that?
A. Yes, sir.
Q. Do you consider yourself very familiar with the system?
A. Yes, sir.
Q. If Lieutenant Colonel Lakin had called you up after he got the booking on March 29
th
,
ifhe called you on March 30
th
and said, 'I'd like to leave a day early,' could you have changed that for
him?
A. Yes, sir.
Q. Would you have changed it for him?
A. Yes, sir.
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Q. If he called you up on March 30
th
and said, 'You know what, I've changed my mind. I
think I'll drive. Could you cancel my flight,' could you have done that for him?
A. I could have cancelled the flight.
Q. Would you have?
A. I don't think the orders authorized him to drive.
Q. If you knew that they did ---­
A. Ifhe was authorized to drive, I would've cancelled his flight, at his request.
Q. In other words, you do have the capability of doing that?
A. Yes.
Q. Would it have cost the government any money?
A. No, all government flights are fully reimbursable; they're contract flights, so there is no
penalty to change or cancel.
Q. It could've been cancelled, it could've been changed?
A. Yes, sir.
CDC: No further questions. Thank you.
MJ: Redirect?
ATC: Yes, ma'am.
REDIRECT EXAMINATION
Questions by the assistant trial counsel:
Q. Did Colonel Lakin ever call you and ask you to cancel that flight?
A. No, ma'am.
ATC: Thank you.
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No further questions.
MJ: Any questions from the members?
MEMBERS: [Affirmative response.]
MJ: We have one.
[The member question was marked AE XXX, shown to counsel and handed to the military judge.]
EXAMINATION BY THE COURT
Questions by the military judge:
Q. Ms. Behan, did DTS produce a 161 OA as a result of the travel authorization? A Form
1610?
A. No, the orders were TCS, temporary change of station orders; the flight was booked off
of those. There was no Defense Travel involved in this.
MJ: Any follow-up based on that?
ATC: No, ma'am.
MJ: Any follow-up questions from the members?
MEMBERS: [Negative responses.]
MJ: Apparently not.
[The witness was duly warned, temporarily excused and withdrew from the courtroom.]
ATC2: Your Honor, the government would like to call Lieutenant Colonel William D. Judd.
MJ: Proceed.
[END OF PAGE]
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LIEUTENANT COLONEL WILLIAM D. JUDD, US Army, was called as a witness by the
prosecution, was sworn and testified as follows:
DIRECT EXAMINATION
Questions by the second assistant trial counsel:
Q. You are Lieutenant Colonel William D. Judd, US Anny, Deputy Commander for
Administration of Kimbrough Ambulatory Care Center here at Fort Meade?
A. Yes, that's correct.
Q. How long have you been in that position?
A. Since July 2010.
Q. What position did you hold before being DCA at Kimbrough?
A. I was the Deputy Commander for Administration of the DiLorenzo Tricare Health Clinic
in the Pentagon.
Q. What were your duties at the DiLorenzo Clinic?
A. As the DCA, I'm in charge of all administrative operations, all the resourcing, personnel,
logistics, facilities, infonnation management, all the business operations, making sure the clinic operates
in an efficient manner.
Q. Have you ever served as acting commander of the DiLorenzo Clinic?
A. Yes, whenever the commander, Colonel Block, was absent from the clinic, I would serve
as the acting commander.
Q. Do you know the accused in this case, Lieutenant Colonel Terrence Lakin?
A. Yes, I do.
Q. How do you know him?
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1 A. Dr. Lakin was our Chief of Primary Carelflight surgeon/primary care manager in the
2 clinic.
3 Q. Were you aware that Colonel Lakin had temporary change of station orders to support
4 Operation Enduring Freedom which would bring him to Fort Campbell, Kentucky on 12 April 201 O?
5 A. Yes, I was.
6 Q. How did you become aware ofthat, sir?
7 A. We received his deployment orders sometime in the February timeframe. We got his
8 orders down from our higher headquarters.
9 Q. How, I'd just like to direct your attention to 31 March 2010. Did you see Colonel Lakin
10 on that day?
11 A. Yes, I did.
12 Q. Around what time?
13 A. I saw him a little before noon, probably somewhere around 1145 hours.
14 Q. Where did you see him?
15 A. In his office.
16 Q. Did you go there with a purpose?
17 A. Yes.
18 Q. What was that?
19 A. On the 31 5t of March, I was the acting commander for the DiLorenzo Clinic. Earlier that
20 morning, I had discussions with our Medical Center Brigade commander, Colonel Roberts. The
21 discussions revolved around Colonel Lakin's statements the day prior on 30 March that he was
22 intending to refuse his deployment orders to deploy with his unit at Fort Campbell. Colonel Roberts
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ordered that Colonel Lakin report to him at 1345 hours on that day, so I went up to talk to Dr. Lakin, let
him know that he was being directed to report to the brigade commander, Colonel Roberts, at 1345
hours.
Q. Once you told Colonel Lakin that, sir, did ---­
CDC: Objection, Your Honor, to this line of question for relevancy.
MJ: Response?
ATC2: Your Honor, one of the question at issue here is whether there was a duty for the accused
to have temporarily changed his station, and this all goes to the question of whether he had that duty.
MJ: I'm going to overrule it for now. Go ahead.
Q. SO, sir, you just testified that you went there in compliance with Colonel Roberts's
directions, and you informed him to report at 1345. Did he, in fact, report as ordered, sir?
A. No, he did not.
Q. What happened next?
A. Dr. Lakin seemed very hesitant about reporting to Colonel Roberts ---­
CDC: Again, Your Honor, I'm going to object.
MJ: Move on, please.
Q. Sir, moving on from the hesitancy of the report order, did you have - you testified he did
not report, sir. At that point, what happened?
A. Since Dr. Lakin did not report to Colonel Roberts, the purpose of Dr. Lakin reporting to
Colonel Roberts was to ---­
CDC: Objection, hearsay.
MJ: Sustained.
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A TC2: Did you have cause to okay, you testified that Colonel Lakin - I'll concede the hearsay,
Your Honor.
Q. You had cause to order Colonel Lakin to report to the Medical Center Brigade, and he
disobeyed that, as you testified, correct, sir?
CDC: Objection, relevance.
MJ: Counsel, where are you going with this?
ATC2: Ma'am, I'm going towards the duty he had to comply with his temporary change of
station orders, which were issued and the movement to ---­
[After the trial counsels conferred.] Your Honor, Colonel Lakin was counseled, which is
what the witness will testify to.
MJ: Why don't we get to that point?
Q. You testified that he did not comply with the order. What did you do next, if anything?
A. The brigade commander sent down a counseling statement, and another set of orders for
Dr. Lakin to report to him later that afternoon. Colonel Roberts wanted me to counsel Dr. Lakin, based
on his statements that he would refuse the deployment orders.
ATC2: [Retrieving PE 5.]
I'm now handing the witness Prosecution Exhibit 5.
Q. Sir, do you recognize that document?
A. Yes, I do.
Q. How do you recognize it?
A. That's the counseling statement I issued to Colonel Lakin.
Q. Does that counseling statement mention the temporary change of station orders at all?
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A. Yes, it does.
Q. What does it say?
A. Can I read it?
Q. Please, sir.
A. It says, "On 30 March 2010, this command became aware of your intentions to refuse to
follow deployment orders." Following the redacted portion, "This counseling is to inform you that your
deployment orders are presumed to be valid and lawful orders, issued by competent military authority.
You are reminded of your duty to obey those lawful orders, and to report to Fort Campbell, Kentucky on
12 April 2010" ----­
ATC2: I'll stop you right there.
Retrieving Prosecution Exhibit 5.
Q. After you counseled the accused, did you do anything else?
A. I let him read it, and he signed the counseling statement, and then I issued him the written
order from Colonel Roberts to report to Colonel Roberts at 1700 hours.
Q. Having now produced this counseling statement and the written order, did the accused
then go and discuss the TCS with Colonel Roberts?
CDC: Objection, Your Honor, relevance.
MJ: Sustained.
ATC2: Your Honor, the charge ofmissing movement includes the element that the movement
was missed by design; here, we have testimony that will speak to that.
MJ: Just ask the question of whether he complied with the memorandum.
ATC2: Yes, ma'am.
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Q. Did Colonel Lakin comply with that memorandum?
A. No, he did not.
ATC2: [Retrieving PE 6.]
Q. [Hands PE 6 to the witness.] Sir, do you recognize that document?
A. Yes, I do.
Q. How do you recognize it?
A. That is the order for Dr. Lakin to report to Colonel Roberts.
Q. Can you read that, please?
A. "Lieutenant Colonel Lakin, Terrence," it gives his social security number, "you are
hereby ordered to report to the Medical Center Brigade commander, Colonel Gordon R. Roberts's
office, at 1700 today, 31 March 2010," and it is signed by Colonel Roberts.
ATC2: [Retrieving PE 6 from the witness.]
Q. Sir, did Colonel Lakin comply with that order?
A. No, he did not.
Q. Do you know what the accused did next, if anything?
A. He left my office after I gave him the counseling statement and the order, and returned to
my office somewhere around 1615 hours, and informed me that he would not be reporting to the brigade
commander at 1700.
Q. At that point, what did you do?
CDC: Objection, relevance.
MJ: Overruled.
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A. I notified the brigade commander that Dr. Lakin had indicated that he would not be
reporting to him at 1700 hours.
Q. Did you have any other conversations with the accused?
A. On that day?
Q. Yes, subsequent to that.
A. Yes, I did.
Q. What was that?
A. A little after 1700 hours - earlier in the day, Dr. Lakin had been inquiring about his leave
status; he was scheduled to go on pre-deployment leave the very next day until the 1 st of April, and he
wanted to know ifhis leave was still valid. I'd been trying to get an answer to that the whole day. So, a
little after 1700, I went back up to Dr. Lakin's office and told him that we didn't have any indication that
his leave had been pulled, he still had a valid DA 31, so he could go on leave the next day.
Q. Do you know what type of leave this was?
A. I don't know exactly what the DA 31 said; it was leave he had scheduled to take prior to
going on his deployment.
Q. Did you ever, at any time, have any indication from Colonel Lakin that he would not
comply with his TCS order?
A. Yes, in that same conversation, after 1700 hours, he also asked me a question; he said, "If
I don't report to Fort Campbell on the 12th of April, where should I go? Should I come here to the
clinic?" I was a little taken aback and confused by the question, considering I'd just counseled him on
what his actions were to be on the 12th of April. I told him I wasn't sure, but I said, "I guess so." That
was the end of the conversation.
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Q. Did you, at any time, have any occasion to clarify what his place of duty was on 12 April
2010, sir?
A. We had a brief exchange of emails between myself and Dr. Lakin over the next day or
two. He asked for clarification about his leave form, and also asked about his place of duty on the 12th
of April. Over a couple emails, I told him his leave form was correct, and for his reference, his place of
duty should be in accordance with the counseling I gave him on the 31 5t of March.
ATC2: I have nothing further. Thank you, sir.
MJ: Mr. Puckett?
CDC: Yes, ma'am, thank you.
CROSS-EXAMINATION
Questions by the civilian defense counsel:
Q. I wanted to return to you Prosecution Exhibit 5. Is there anywhere on there in the
counseling where you directed him to be aboard US Airways Flight 1123 on the 12th of April?
A. No, there's nothing that specific.
Q. Is there anything slightly less specific in there directing him to travel by air to Fort
Campbell?
A. No, there's nothing there that directs him to travel by air.
Q. It is to get to Fort Campbell and report on the li\ that's the counseling? That's the gist
of it.
A. It says, "You're reminded of your duty to obey those lawful orders and report to Fort
Campbell, Kentucky on 12 ApriL"
Q. To obey his TCS orders?
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A. Yes.
CDC: I'll retrieve Prosecution Exhibit 5 from you.
Q. Even though it is not reflected here, did you, at any time during that counseling, or any of
the conversations you had with him, or in any of the emails you had with him, did you direct him to be
aboard Flight 1123 on US Airways on the 1th of Apri12010?
A. No, I did not.
CDC: Thank you, sir.
MJ: Redirect?
ATC2: No, Your Honor.
MJ: Questions from the members?
MEMBERS: [Affirmative responses.]
MJ: We have at least one.
[The member question was marked AE XXXI, shown to counsel and handed to the military judge.]
EXAMINATION BY THE COURT
Questions by the military judge:
Q. Lieutenant Colonel Judd, were the correct orders, the third amendment, received before
or after your counseling or by Colonel Roberts - before or after the 31 st of March 201O?
A. Ma'am, I'm not sure what the date ofthe third amending orders is.
MJ: Any follow-up based on that?
A TC2: No, Your Honor.
CDC: No, Your Honor.
MJ: Any follow-up questions from the members?
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MEMBERS: [Negative responses.]
MJ: Apparently, there are none.
[The witness was duly warned, temporarily excused and withdrew from the courtroom.]
Government, call your next witness.
ATC2: Your Honor, we'd like to call Colonel Gordon Roberts.
COLONEL GORDON ROBERTS, US Army, was called as a witness by the prosecution, was
sworn and testified as follows:
DIRECT EXAMINATION
Questions by the second assistant trial counsel:
Q. Sir, you are Colonel Gordon Roberts ofthe 1st Theater Sustainment Command, Camp
Arifjan, Kuwait?
A. That's correct.
Q. What was your previous duty position, sir?
A. I was the brigade commander for the Medical Center Brigade at Walter Reed.
Q. As part of that command, did the accused fall as one of your subordinates, sir?
A. Lieutenant Colonel Lakin - that's correct.
Q. When did you first join the Army, sir?
A. I first joined the Army on May 27, 1968.
Q. How long have you been on active duty?
A. Quite a large number of years. I don't know exactly- I had a break in service; my
commissioned time in service is since 1991.
Q. What levels of command have you held, sir?
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A. Every level of command; I've been a platoon leader, company commander, battalion
commander and brigade commander.
Q. On 31 March 2010, did you have occasion to give the accused any orders?
A. I did.
Q. Why did you have the occasion to give him those orders?
A. I ordered Lieutenant Colonel Lakin to come see me at my office.
Q. What was the purpose for giving the order on that day, sir?
A. Lieutenant Colonel Lakin had showed up at my command suite to come see me on an
open-door policy, and I wasn't there on the 30th. When he was there, he and his attorney met with my
executive officer, Lieutenant Colonel Crockett-Lynn, and informed her of his intention not to deploy as
ordered on 12 April.
Q. Was there any urgency to see since the deployment, as you testified, was 12 April, was
there any urgency to see Colonel Lakin on 31 March?
A. Yes, sir. Anytime someone would do something like that, for a medical reason or any
reason not to be able to deploy, my brigade has to take action in terms of finding someone else to take
their place, to get them trained up, everything of that nature.
Q. How long does that take? Do you have any knowledge of that, sir?
A. We prefer to have 3-4 months. There's a large number of training activities that we have
to fit into their current medical practice, when it is a doctor.
Q. Do you know how many months there were before Colonel Lakin was scheduled to join
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1 A. He received notice, I believe, in February, which was a couple months' notice prior to
2 deployment.
3 Q. So, when you ordered him to appear, did he appear, sir?
4 A. When I first tried to get him to come in, I ordered him to show up at 1300 on the 31st of
5 March. I communicated that verbally through my aide to Lieutenant Colonel Judd at the Pentagon
6 Clinic, and we received word back that I'd had my chance.
7 Q. Do you know what that was in reference to, sir?
8 A. I assumed it was in reference to the fact that he'd come in on the 30
th
on the open-door
9 policy, and I wasn't there.
10 Q. Was there a reason you weren't there for the open-door policy meeting, sir?
11 A. I do not specifically remember why I was gone. I attend a large number of conferences.
12 I'm frequently a guest speaker at different events in the Washington, DC area. I assume I was gone for
13 something of that nature.
14 Q. So you were told you had your chance - what did you do next, sir?
15 A. During that morning, after I received that notice on the afternoon of the 30
th
that he
16 intended not to deploy - during the morning, I consulted with SJA, was having a counseling statement
17 prepared, so when I received notice he wasn't going to come at 1300, I had that counseling statement
18 sent to Lieutenant Colonel Judd to hand-deliver to him, and to order him to come to my office at 1700.
19 ATC2: [Retrieving PE 5.]
20 I'm handing the witness Prosecution Exhibit 5.
21 Q. Sir, could you take a moment to review that?
22 A. [Did as requested.]
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1 Q, Do you recognize that document, sir?
2 A. I do.
3 Q. How do you recognize it?
4 A. It is the counseling statement I had prepared for delivery to Lieutenant Colonel Lakin.
5 Q. Did you give him any other document with that counseling statement?
6 A. I did, an order to see me at 1700 hours.
7 Q. What happened next, sir?
'8
A. Shortly after 1700, we received notice from Lieutenant Colonel Judd that Lieutenant
9 Colonel Lakin had consulted with his civilian defense counsel, and that they declined to appear.
10 Q. Do you know whether Colonel Lakin reported to Fort Campbell as ordered by his
11 temporary change of station orders?
12 A. I do know, and he did not.
13 Q. Do you know whether he reported after that date?
14 A. I'm not aware that he reported after that date.
15 Q. Do you know whether anyone else reported to fill in the spot for Colonel Lakin?
16 A. Someone else did ---­
17 CDC: Objection, relevance.
18 MJ: Overruled.
19 Q. You can answer the question, sir.
20 A. I am aware that someone else reported to fill that position that Lieutenant Colonel Lakin
21 did not fill.
22 Q. Do you know who that was, sir?
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1 A. Yes, sir, it was Major Dobson.
2 ATC2: I have no more questions for you, sir, but the defense may.
3 MJ: Mr. Puckett?
4 CDC: Thank you, ma'am.
S CROSS-EXAMINATION
6 Questions by the civilian defense counsel:
7 Q. Colonel, I know this has been a difficult time for you, but let me just ask you a few short
8 questions. Also, I don't know if you met his prior attorney, but I'm not the attorney who sent those
9 messages to you. I just want to let you know that.
10 A. Okay.
11 Q. Sir, did you ever communicate by email or in writing with Lieutenant Colonel Lakin, or
12 verbally with Lieutenant Colonel Lakin, and direct him to be aboard US Airways Flight 1123 departing
13 from BWI on 12 April?
14 A. I did order him to comply with the orders he'd been issued to report to Fort Campbell by
15 1500 hours on April Ith.
16 Q. I understand, sir, but more specifically, did you order him to be aboard US Airways
17 Flight 1123 departing from BWI on 12 April?
18 A. I did not.
19 Q. Did you direct anyone else to tell him that?
20 A. I did not.
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1 Q. Sir, back on the 31
51
of March, am I correct in assuming that you wanted to meet
2 personally with Lieutenant Colonel Lakin to discuss this decision that he'd apparently reached, and to
3 counsel him personally?
4 A. There was a large number of reasons why I wanted to meet with Lieutenant Colonel
5 Lakin.
6 Q. Please share those with us, sir.
7 A. First and foremost, once receiving word that he intended to not deploy, I was concerned,
8 potentially, about his mental health. This was aberrant behavior, something that I could not see anything
9 like on his record. He had previously deployed to Afghanistan and had served a year there, and the
10 commanders got concerned that potentially it was PTSD or something else at work there, so my first
11 concern was him. My second concern was whether or not he fully understood the legal ramifications for
12 the proposed action that he was taking in not deploying. My third concern was his family, and if they
13 fully understood what the probable consequences were ifhe continued with his proposed course of
14 action. My last concern was his defense counsel, and primarily because I'd been made aware of internet
15 po stings that he'd posted, and that was certainly contrary to what you'd think defense counsel would
16 advise him to do.
17 CDC: I agree.
18 MJ: Mr. Puckett.
19 CDC: Yes, Your Honor.
20 MJ: Please move on.
21 Q. Sir, continue, those were your concerns?
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A. That, and just a primary concern with him, and his understanding of what all of this
meant.
Q. But you never got the opportunity to do that, did you, sir?
A. I did.
Q. You did ultimately get a chance to talk to him?
A. Yes, he did report at 9 0' clock on the 1 st of April.
Q. So you did get to talk to him? You did get to counsel him?
A. I sent down a third order for him to report to me, with the caveat that we'd have him
escorted to my office ifhe failed to show.
Q. And he did show?
A. He did show.
Q. Did you have that discussion with him?
A. I did.
Q. Did you communicate everything you wanted to to him?
A. I did.
Q. So, sir, would I be correct in assuming that what you wanted was that which you got on
the 1 st of April- a meeting with Colonel Lakin to communicate those things to him?
A. I did.
Q. You did not want two meetings, three meetings or four meetings; you just wanted that
one meeting to look him in the eye and communicate those things to him?
A. At that time, yes.
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1 Q. SO, really, the sole purpose for you issuing the memorandum, directing him in writing to
2 be there at 1700 on the 31 st was because he had missed the verbally-directed meeting at 1345 on the
3 31
st
?
4 A. That's correct.
5 Q. So you did not intend for him to - you did not issue multiple orders to him in order to try
6 to punish him for multiple violations; you just wanted to talk to him?
7 A. That's correct.
8 CDC: Thank you, sir.
9 MJ: Redirect?
10 A TC2: Briefly, Your Honor.
11 REDIRECT EXAMINATION
12 Questions by the second assistant trial counsel:
13 Q. Sir, you were asked whether you ever instructed anyone to order Colonel Lakin to the US
14 Airways flight that was departing from Baltimore-Washington International- do you remember what
15 happened the morning that Lieutenant Colonel Lakin was scheduled to take that flight?
16 A. Yes, he appeared at work at the Pentagon Clinic.
17 Q. How did you find that out, sir?
18 A. Lieutenant Colonel Judd, I believe, gave my office a call to let us know that he had
19 arrived.
20 Q. Do you think it was possible that it was Lieutenant Colonel Edwards, sir?
21 CDC: Objection, Your Honor, speculation.
22 MJ: Overruled.
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Q. Sir, do you think it is possible that it was Colonel Edwards?
A. It could've been Colonel Edwards.
Q. Whoever instructed you that he was there, what did you do with that infonnation?
A. I simply told them not to interfere with Lieutenant Colonel Lakin, that we were aware of
the plane flight that he'd scheduled, because that was done through the military'S SA TO system, and if
he chose to get on the plane in time, we would pennit him to do so.
Q. Could you just elaborate on that in tenns of what your intent was, sir?
A. Our intent was not to obstruct him from complying with the order that he was to report at
1500 hours at Fort Campbell.
A TC2: Thank you, sir.
MJ: Mr. Puckett?
CDC: No, thank you, Your Honor.
MJ: Questions from the members?
MEMBERS: [Negative responses.]
MJ: Colonel Roberts, I have one question.
EXAMINATION BY THE COURT
Questions by the military judge:
Q. When the orders - if you don't know the answer to this, tell me that as well-the order to
get on the flight on the 12th of April 2010 to go to Fort Campbell, was that in route to the deployment, or
was that to go to Fort Campbell for a period of time prior to deploying?
A. The flight itself would have taken him to Fort Campbell in ample time to train up with
the unit prior to deployment. The unit was deploying from Fort Campbell, but he was to go to the unit
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approximately 2-3 weeks prior to their deployment to partieipate in some of the training and aeelimate
himself to the eommand.
MJ: Any follow-up based on that?
ATC2: No, Your Honor.
CDC: No, Your Honor, thank you.
MJ: Any questions from the members?
MEMBERS: (Negative responses.]
[The witness was duly warned, temporarily exeused and withdrew from the eourtroom.]
ATC2: Your Honor, the government would like to eall Lieutenant Colonel Christine Edwards.
LIEUTENANT COLONEL CHRISTINE EDWARDS, US Army, was called as a witness by the
prosecution, was sworn and testified as follows:
DIRECT EXAMINATION
Questions by the second assistant trial counsel:
Q. Ma'am, you are Lieutenant Colonel Christine Edwards?
A. Yes.
Q. Combat developer for Concepts and Requirements, Directorate of Combat Development
and Doctrine, Army Medical Department Center and School, Fort Sam Houston, Texas?
A. Yes.
Q. Did I get that right, ma'am?
A. Yes, sir.
Q. What was your previous duty position, ma'am?
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A. I was the Deputy Commander for Clinical at DiLorenzo Tricare Health Clinic at the
Pentagon.
Q. In that capacity, did you supervise the accused?
A. I supervised his work, but I was not his rater.
Q. Were you aware that Colonel Lakin had TCS orders to go from DC to Fort Campbell?
A. Yes, I was.
Q. Did you assist in the coordination of Lieutenant Colonel Lakin's TCS and deployment?
A. Yes.
Q. How did you do so, ma'am?
A. I contacted the unit to clarify training requirements, what he might need as far as his
orders also had an error in them, they had him reporting early, so I was working on clarifying on when
he was actually due to report.
Q. In that capacity, did the accused ever express any reservations to you about the TCS?
A. He did.
Q. What were they, ma'am?
A. He didn't want to deploy.
Q. When did he tell you that, ma'am?
A. He didn't really tell me in any specific way. I knew he would rather not deploy.
Q. Did he ever tell you anything more specific than just intimate at it?
A. I knew he had some concerns about whether the President was the President and didn't
feel that it was a lawful order.
Q. Did he ever express concerns about any financial liability associated with the TCS?
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A. I made all the arrangements, made sure that he had somebody picking him up from the
airport, that he had someplace to stay. He did send me an email saying something about not wanting to
be held financially responsible for missing movement.
Q. When did he send you that, ma'am? Do you remember?
A. It might've been the Friday before the Monday he was going to go.
Q. Do you remember what the date of the Monday he was supposed to go was, rna' am?
A. I believe it was the lih of April.
Q. Counting backwards, could you figure out what that Friday was, ma'am?
A. The 8
th
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t
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Q. Of April, ma'am?
A. Yeah.
Q. What happened on 12 April 2010, ma'am?
A. Dr. Lakin showed up for work at DiLorenzo Tricare Health Clinic.
Q. Around what time?
A. I believe it was around 6:30 in the morning.
Q. When did you see him, ma'am?
A. Shortly after that, probably 6:35.
Q. Did you have any conversations with him when you saw him, ma'am?
A. I was very disappointed to see him.
Q. Did you expect to see him?
A. I didn't want to see him. I wanted him to get on the plane.
Q. Did you tell him anything when you saw him, ma'am?
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1 A. I let the brigade commander know that he was there.
2 Q. Who was that, ma'am?
3 A. Colonel Roberts. I asked for guidance, what should I do; Colonel Roberts told me to give
4 him a verbal order, that he could still report to Fort Campbell.
5 Q. What did you do, ma'am?
6 A. I gave him a verbal order to report.
7 Q. What was the phraseology, because this is a key point ofthe case right here ---­
8 MJ: Alright, just ask the question.
9 Q. What was the phraseology of that verbal order, ma'am?
10 A. I basically related to him that Colonel Roberts had told me to give him a verbal order,
11 that his place of duty was to get on that plane and to go to Fort Campbell.
12 ATC2: Nothing further, ma'am.
13 CROSS-EXAMINATION
14 Questions by the civilian defense counsel:
15 Q. Colonel Roberts said that he didn't tell anyone to direct him to be on an airplane - you
16 told him to be on an airplane?
17 A. I told him that his place of duty was to be getting on that plane, so he could get to Fort
18 Campbell.
19 Q. Did you tell him to be on US Airways Flight 1123, departing BWI on 12 April?
20 A. I don't know what the flight was, but I know he had all the flight infonnation.
21 Q. You were aware that he had flight infonnation, because you were talking in those emails?
22 A. [Affinnative response.]
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Q. You knew that that was a flight that he could have taken to Fort Campbell?
A. That was the flight he was booked on.
Q. Did you tell him, specifically, that he had to be on that airplane, at that airport, on that
airline?
A. I told him his place of duty was to get on that plane to go to Fort Campbell.
Q. Did you tell him that verbally?
A. [Affirmative response.]
Q. Did you write a memorandum for record of that?
A. No.
Q. Did you report to anyone else that you'd said that?
A. I reported back to Colonel Roberts.
Q. What did you ten Colonel Roberts?
A. That 1'd given him the verbal order.
Q. What did Colonel Roberts tell you to do?
A. To give him the verbal order, and I responded back to him that I had.
Q. What was the date?
A. It was on the 1 t
h
of April.
Q. What time was that?
A. Probably somewhere around 7:30 in the morning, very early in the morning.
Q. What was your position with respect to Lieutenant Colonel Lakin? Were you in a
command position over him?
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A. I was the Deputy Commander for Clinical; Dr. Lakin worked in Clinical- he was the
Chief of Primary Care. Dr. Lakin was senior to me, so I wasn't his rater, but I did direct all the clinical
work at the clinic.
Q. He is senior to you in rank?
A. Yes, he is.
Q. Are you in his chain of command for reporting purposes?
A. Only for reporting to work, scheduling his work duty.
Q. Just scheduling?
A. [Affirmative response.]
Q. Not a rater?
A. I prepared his ratings for Dr. Block, who was his rater.
Q. But in an Army sense, you were not his commander?
A. No.
CDC: Thank you.
No further questions.
REDIRECT EXAMINATION
Questions by the second assistant trial counsel:
Q. Why don't you just state what your position was, ma'am, at the Pentagon Clinic?
A. I was the Deputy Commander for Clinical Operations.
ATC2: Nothing further, ma'am. Thank you.
MJ: Any questions from the members?
MEMBERS: [Negative responses.]
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MJ: Apparently not.
[The witness was duly warned, temporarily excused and withdrew from the courtroom.]
TC: The government may have additional witnesses, rna' am. We wonder if this might be a
good time to take a brief comfort break to figure out how we'll proceed and plan for the rest of today
and tomorrow.
MJ: Is 15 minutes sufficient?
TC: Yes, ma'am.
MJ: Members of the panel, we are going to recess the court. Please be prepared to return at
1700.
[The members withdrew from the courtroom.]
Let the record reflect the members have departed.
Is there anything we need to address before we recess the court?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: Please stop by and see me about 5 minutes before we begin.
Court is in recess.
[The court-martial recessed at 1649, 14 December 2010.]
[END OF PAGE1
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1 [The session was called to order at 1707, 14 December 2010.]
2 MJ: This Article 39(a) session is called to order.
3 Let the record reflect all parties present when the court last recessed are again present in
4 court; the members are absent.
5 I just had an RCM 802 conference with counsel briefly to discuss logistics in the case. I
6 was advised by the government that they intended to call one additional witness. Is that correct?
7 TC: Yes, Your Honor.
8 MJ: And both sides have advised me that that would be a natural break in the government's
9 case to have the court recess for the evening, and send the members home to begin proceedings with the
10 members at 0900 tomorrow.
11 Does either side desire to add further to the summary of the RCM 802 conference?
12 TC: No, ma'am.
13 CDC: No, ma'am.
14 MJ: Is there anything else we need to address before we call the members?
15 TC: No, ma'am.
16 CDC: No, Your Honor.
17 MJ: Please call the members.
18 [END OF PAGE]
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1 [The members returned to the courtroom at 1708, 14 December 2010.]
2 MJ: Let the record reflect the members have returned.
3 Members of the panel, I have consulted with counsel, and the government has one
4 additional witness they're going to call this evening, and then that's a natural break for us to go ahead
5 and recess the court for the evening, and then we'll begin tomorrow morning at 0900.
6 Government, please call your next witness.
7 TC: The government calls Kevin Starnes.
8 KEVIN STARNES, civilian, was called as a witness by the prosecution, was sworn and testified as
9 follows:
10 DIRECT EXAMINATION
11 Questions by the trial counsel:
12 Q. Could you please state your full name, and your city and state of residence for the panel?
13 A. Kevin Starnes, Alexandria, Virginia.
14 Q. What do you do, sir?
15 A. I'm a customer service manager for US Airways.
16 TC: I'm handing you what's been previously admitted as Prosecution Exhibit 7. Please
17 review that document.
18 WIT: [Did as directed.]
19 Q. What is that?
20 A. This is a copy of a record in our reservation system for Terrence Lakin.
21 Q. What is the date of the reservation on there?
22 A. It was for the 1 ih of April.
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Q. Please tell me where that information is on the document.
A. On the third page.
Q. What can you tell about that reservation, based on the information on the document?
A. The passenger did not board the aircraft; towards the end, where it says "SC" and "XS,"
those are codes for us for cancellation, and that happened because the passenger did not board the
aircraft. We have an automated system that runs 30 minutes after the flight departs; anybody that didn't
board the aircraft, it cancels that segment, and any subsequent segments in the reservation.
Q. If the reservation was cancelled prior to departure, would it have the same information?
A. No, because where it says received, "RCVD," and "BWI-PD" is a standard code in our
system for post-depa.rture, so it was done through an automated system, not by an actual agent.
Q. What was the departing time of that flight?
A. This flight was scheduled to leave at 8:40 am.
Q. From where?
A. From Baltimore-Washington International.
TC: I have no further questions. Thank you.
Retrieving Prosecution Exhibit 7.
MJ: Mr. Puckett?
CROSS-EXAMINATION
Questions by the civilian defense counsel:
Q. Are you acquainted with Lieutenant Colonel Lakin?
A. No, I have never met him.
Q. Ever spoken with him?
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A. No, I have not.
Q. Ever exchange emails with him?
A. No.
Q. DS Airways, the policies for booking and canceling flights, can flights be canceled can
bookings be canceled?
A. Bookings can be canceled.
Q. Can they be modified?
A. Yes, they can be.
CDC: No further questions, Your Honor.
MJ: Redirect?
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Mr. Starnes, was that reservation cancelled?
A. It was cancelled because the passenger did not show up.
Q. It was not cancelled by the passenger?
A. Right.
TC: Nothing else, Your Honor.
MJ: Questions from the members?
MEMBERS: [Negative responses.]
MJ: Apparently not.
[The witness was permanently excused and withdrew from the courtroom.]
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TC: Your Honor, at this point, the government asks the court to take judicial notice that the
distance between DiLorenzo Tricare Health Clinic in Arlington, Virginia via interstate to Fort Campbell
is 722 miles.
MJ: Any objection?
CDC: No, Your Honor.
MJ: The court will take judicial notice of that.
Members ofthe panel, I've taken judicial notice that Fort Campbell is 722 miles from the
DiLorenzo Health Clinic; that means you're now permitted to recognize and consider that fact without
further proof. It should be considered by you as evidence, along with other evidence in the case. You
may, but are not required to, as conclusive any matter that I have judicially noticed.
TC: Your Honor, the government rests.
MJ: Is there anything else we need to address in with the members present?
CDC: No, Your Honor.
MJ: Members of the panel, we are going to close to recess. Once again, I ask that you
remember the instruction that I gave you earlier please don't discuss this case with anyone, not even
among yourselves. Avoid contact with witnesses, potential witnesses or media representatives. Do not
read any account of this case. Do not Google, get on the internet, or look at anything with respect to this
case in the overnight recess.
Can all of you follow that instruction?
MEMBERS: [Affirmative responses.]
MJ: Is there anything else we need to address before I excuse the members?
TC: No, ma'am.
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CDC: No, ma'am.
MJ: We'll see you at 0900 tomorrow.
[The members withdrew from the courtroom.]
Let the record reflect the members have departed.
Is there anything we need to address before we recess the court this evening?
CDC: No, Your Honor.
TC: Your Honor, how does the court want to approach counsel review of findings
instructions? The government has a request for an additional instruction, and obviously, whatever
standard instructions the court wants to give, we were hoping to have the opportunity to review those
tonight. Or should we do it in the morning?
MJ: Why don't we let's meet briefly for an RCM 802 conference, and then we'll come back
on the record.
Court is in recess.
[The parties did not come back on the record after the RCM 802 conference.]
[The court-martial recessed at 1716,14 December 2010.]
[END OF PAGE]
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1 [The session was called to order at 0931,15 December 2010.]
2 MJ: This Article 39(a) is called to order.
3 Let the record reflect all parties present when the court last recessed are again present in
4 court.
S Yesterday when we closed, I believe the government rested its case?
6 TC: Y es, Your Honor.
7 MJ: Is the defense ready to proceed, or are there any issues we have to address before we call
8 the members?
9 TC: Nothing from the government, ma'am.
10 CDC: We're prepared, Your Honor.
11 MJ: Please call the members.
12 [END OF PAGE]
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1 [The members returned to the courtroom at 0933, 15 December 2010.]
2 MJ: Let the record reflect the members have returned.
3 When we recessed the court yesterday, the government had rested.
4 Mr. Puckett, is the defense ready to proceed?
5 CDC: Yes, Your Honor.
6 The defense rests.
7 MJ: Members of the panel, both sides have rested, so there are some things we need to
8 address outside of your presence, and I need to finalize my instructions for you. I'm going to ask that
9 you return at it is 0930 now, I'm going to ask that you return and be ready to proceed at 1030.
10 If you would, the same rules apply in the recess - please don't discuss the case among
11 anyone, not even among yourselves. Avoid contact with witnesses, potential witnesses or any media
12 representatives. Please do not read any account of the trial while you are on the recess.
13 You are free to go. We'll see you here at 1030.
14 [The members withdrew from the courtroom at 0934, 15 December 2010.]
15 [END OF PAGE]
16
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MJ: Let the record reflect the members have departed.
Lieutenant Colonel Lakin, you did not testify. Was that your decision?
ACC: Yes, ma'am.
MJ: Counsel, before we proceed, which exhibits do the parties believe go to the members?
Prosecution Exhibits 1-20 were admitted.
TC: Yes, Your Honor- Prosecution Exhibit 1,2,3,5,6, 7.
MJ: I just thought I admitted them all. Is there any reason not all of them go to the members?
TC: Yes, Your Honor, we pre-admitted some that we believe that would be relevant for
sentencing, but we don't believe they're relevant on the merits.
MJ: Why don't we do this? While I'm preparing my instructions, both sides go over the
exhibits and let me know if you concur with the ones that go back to the members.
TC: Yes, ma'am.
MJ: Let's talk about instructions.
We've got one Charge and Specification of missing movement through design; does
either side believe the lesser-included offense of missing movement through neglect has been raised?
TC: No, Your Honor.
CDC: No, Your Honor.
MJ: Neither do 1.
Does either side believe any other lesser-included offenses were raised?
CDC; Y es, Your Honor, failure to go under Article 86.
MJ: Does the government agree?
TC: Can we have a moment, Your Honor?
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[The trial counsels conferred.]
Your Honor, the government believes there may be a Jones situation, to the extent that
the elements aren't necessarily included.
MJ: What of the elements of failure to go to appointed place of duty that are not a subset of
missing movement by design?
TC: Your Honor, that's our question, in light of how the court is going to interpret Jones.
They're not literally the same elements; the facts ofthis case would be relevant to those elements, but to
the extent that the government believes it may have been required to charge in the alternative at the time
of charging, we don't want to create any issues now. We'd be happy to investigate it during the time for
the court to prepare sentencing instructions. That's a concern we have. We're not sure that it is a proper
lesser-included, in light of the standing case law.
MJ: As I look at Article 86, failure to report, the three elements are:
That a certain authority appointed a certain time and place of duty for the accused;
Two, that the accused knew of that time and place; and
That the accused, without authority, failed to go to the appointed place of duty at the time
prescribed.
The state of the law, with respect to lesser-included offenses in the military, in light of
United States v. Jones and United States v. Allston, this year, requires that the military adopt the test
the Supreme Court has articulated in United States v. Schmuck, that basically, the lesser-included
offense has to be a subset of the greater offense, and cannot have any additional elements. The elements
don't have to be phrased exactly the same, but the elements have to be a subset of the elements of the
greater offense.
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I've allowf"d both sides to look at that issue. Defense, are you specifically requesting this
lesser-included offense?
CDC: Your Honor, we are specifically requesting this, understanding the case law.
MJ: Are you waiving any issue oflesser-included offense as raised by Allston and Jones ---­
CDC: Absolutely.
MJ: ---- if one of these elements doesn't necessarily quite fall as a subset?
CDC: Yes, Your Honor, we are knowingly waiving that, and specifically request it.
MJ: Certainly, I'm willing to listen to why these elements are not a subset. As I read them,
they appear to be. But as I said, I'm going to prepare my instructions. I'll certainly let you look into the
issue.
TC: We'll examine it further, Your Honor, and get back with the court.
MJ: Defenses? I don't see any special defenses raised. Does either side?
CDC: No, Your Honor.
TC: No, ma'am.
MJ: I don't see any pretrial statement issues. Anything from Chapter 4, either side, from the
Benchbook instructions?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: With respect to evidentiary instructions, I intend to give­
Circumstantial evidence;
Proof of intent;
Proof ofknowledge;
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I intend to give the judicial notice instruction, based on the government's request for
judicial notice of the distance between Fort Campbell and - where was the ---­
TC: DiLorenzo Clinic in Arlington, rna' am.
MJ: Does the defense want the 'failure to testify' instruction?
CDC: Yes, Your Honor.
MJ: I intend to give the credibility of witnesses instruction, and the spillover instruction that I
gave earlier with respect to Specifications 1-3 of Charge II.
Defense, there's arguably been some evidence of a violation of the orders that has arisen
independently of the flyer. Does the defense want a separate uncharged misconduct instruction or not?
I'll defer to you.
CDC: [After conferring with ACC and DC.] No, Your Honor, we're not requesting that
instruction.
MJ: So you just want the standard spillover instruction?
CDC: Yes, Your Honor.
MJ: That's all the evidentiary instructions that I see. I didn't see any prior inconsistent
statements, or anything of that nature, that goes outside the "credibility of witnesses" instruction. Does
either side?
CDC: No, Your Honor, we don't have any requests for additional.
TC: Your Honor, the only one we might suggest, at the same time we address the lesser-
included, is the "aversion to superior officer" instruction that we discussed previously related to Article
90, but we'll propose it in a more direct way, in accordance with our position on the lesser-included.
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1 MJ: This would be a good time to synopsize the RCM 802 conference that I held with counsel
2 yesterday afternoon after we recessed the court.
3 The government advised me that it wanted additional instructions for the missing
4 movement; particularly, what the definition of "superior commissioned officer" is; that is an instruction
5 that's taken out of the standard definition in Article 90, disobedience of a superior commissioned
6 officer, and also, a standard instruction on what constitutes a duty. I believe you're going to flesh that
7 out a little more.
8 Is that correct?
9 TC: Yes, rna' am, in the event that we request that, we certainly will.
10 MJ: Captain Kobrinski, has the government had marked as an appellate exhibit the "Question
11 Presented" document that you gave me?
12 A TC2: Y es, Your Honor.
13 MJ: I'm looking at Appellate Exhibit XXXII, which is "Question Presented Whether the
14 element that the accused was required in the course of duty to move with a ship, aircraft or unit can be
15 established if the accused is not ordered to be on the flight he chose and coordinated through DTS in
16 furtherance of TCS orders," and an analysis. Has the defense had an opportunity to see Appellate
17 Exhibit XXXII?
18 CDC: We have, Your Honor.
19 TC: Your Honor, for clarity sake, the government is not asking for any additional instructions
20 relating to missing movement, but the standard instructions in the Benchbook, which the court indicated
21 you're going to give.
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I MJ: I'm going to give the standard instructions on missing movement - now I'm confused.
thought the government wanted ---­
TC: I'm sorry, not related to any case law or anything mentioned in that brief; that was a
responsive brief, in light of the conversations memorialized in the 802.
MJ: Let me know what instructions the government would like.
Defense, do you have any position at this point, or do you want to wait until they actually
have a proposed instruction?
CDC: Yes, ma'am, the latter.
MJ: Do we have the findings worksheet?
[The court reporter handed a draft findings worksheet to the court.]
I have a draft findings worksheet that has not been marked as an appellate exhibit, which
for now includes just the Charge and Specification. If the government would, please prepare a draft that
includes the lesser-included offense that we discussed, and when we come back on the record, the court
will rule which one we're going to use, and we'll have that marked as an appellate exhibit.
TC: Yes, Your Honor.
MJ: Is there anything else we need to address at this point?
TC: Nothing from the government, ma'am.
CDC: No, ma'am.
MJ: Court is in recess.
[The session recessed at 0944, 15 December 2010.]
[The session was called to order at 1104, 15 December 2010.]
MJ: This Article 39(a) session is called to order.
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Let the record reflect that all parties present when the court last recessed are again present
in court; the members are absent.
Trial counsel, has the findings worksheet been marked as an appellate exhibit?
TC: Yes, Your Honor.
MJ: The findings worksheet is marked as Appellate Exhibit XXXIII.
Defense, have you had an opportunity to look at the findings worksheet?
CDC: We have, Your Honor.
MJ: Do you agree with it?
CDC: We do, Your Honor.
MJ: Have both sides had an opportunity to look at my proposed findings instructions?
CDC: Yes, Your Honor.
TC: Yes, rna' am.
MJ: Any objections to them?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: For the record, my instructions will include the Charge and the lesser-included offense.
CDC: Thank you, Your Honor.
MJ: The government has requested that I add to the missing movement instruction the
instruction on "duty" under Article 92, which states, "A duty may be imposed by regulation, lawful
order or custom of the service." I have added that instruction as well.
Have the parties detennined which exhibits will go back to the members?
TC: Yes, Your Honor.
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CDC: Yes, Your Honor.
TC: They are assembled by the court reporter, Your Honor.
MJ: For the record, if you would,just announce which exhibits those are?
TC: Y es, Your Honor.
Prosecution 1, 2, 3, 5, 6, 7, and Prosecution 16, 17, 18, 19 and 20.
MJ: The procedure will be as follows: we'll the call members back in; I'll read the substantive
findings instructions to the members; that will be followed by argument of counsel; then I will read the
procedural instructions to the members. The members will take a brief recess before we close the court
for their deliberations. I have advised the bailiff to get their lunch orders, so we're going to have the
members deliberating and not take a long lunch break.
Anything else we need to address before we call the members?
CDC: No, Your Honor.
TC: No, ma'am.
MJ: Please call the members.
[END OF PAGE]
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[The members returned to the courtroom at 1106, 15 December 2010.]
MJ: The record will reflect the members have returned.
Members ofthe panel, I'm going to read you the substantive findings instructions; that
will be followed by argument of counsel, and then I will read to your procedural instructions. You will
have a written copy of the instructions [later marked AE XXXV] to take with you into the deliberation
room.
Members of the court, when you close to deliberate and vote on the findings, each of you
must resolve the ultimate question of whether the accused is guilty or not guilty, based upon the
evidence presented here in court, and upon the instructions that I will give you.
My duty is to instruct you on the law. Your duty is to determine the facts, apply the law
to the facts, and determine the guilt or innocence of the accused.
The law presumes the accused to be innocent of the charge against him.
You will hear an exposition of facts by counsel for both sides as they view them. Bear in
mind that arguments of counsel are not evidence; argument is made by counsel in order to assist you in
understanding and evaluating the evidence, but you must base your determination of the issues in this
case on the evidence as you remember it, and apply the law as I instruct you.
During the trial, some of you took notes. You may take your notes with you into the
deliberation room; however, your notes are not a substitute for the record of trial.
I will advise you of the elements of the offense alleged.
Charge I, missing movement In the Specification of Charge I, the accused is charged
with the offense of missing movement through design in violation of Article 87, Uniform Code of
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1 Military Justice. In order to find the accused guilty of this offense, you must be convinced by legal and
2 competent evidence beyond a reasonable doubt:
3 One, that the accused was required in the course of duty to move with US Airways Flight
4 1123, departing from Baltimore-Washington International Airport, arriving in Charlotte, North Carolina,
5 in order to deploy for a temporary change of station in support of Operation Enduring Freedom with the
6 32
nd
Cavalry Regiment, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky;
7 Two, that the accused knew of the proposed movement of the aircraft;
8 Three, that, at or near Arlington, Virginia, on or about 12 April 2010, the accused missed
9 the movement of the aircraft; and
10 Four, that the accused missed the movement through design.
11 "Movement" means a major transfer of an aircraft involving a substantial distance and
12 period of time. The word does not include practice marches of short duration or distance, nor minor
13 changes in the location of an aircraft, unit or ship. "Movement" may also mean the deployment of one
14 or more individual service members as passengers aboard military or civilian aircraft or watercraft in
15 conjunction with temporary or permanent change of duty assignments.
16 Failure of a service member to make a routine movement aboard commercial
17 transportation, however, does not violate Article 87 when such failure is unlikely to cause foreseeable
18 disruption of military operations.
19 A duty may be imposed by regulation, lawful order or custom of the service.
20 To be guilty of this offense, the accused must have actually known of the prospective
21 movement that was missed. Knowledge of the exact hour, or even the exact date, ofthe scheduled
22 movement is not required. It is sufficient that the accused knew the approximate date, as long as there is
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a causal connection between the conduct of the accused and the missing of the scheduled movement.
Knowledge may be proved by circumstantial evidence.
"Through design" means on purpose, intentionally, or according to plan, and requires
specific intent to miss the movement.
Lesser-included offense: failure to go to appointed place of duty. The court is further
advised that the offense of failure to go to appointed place of duty in violation ofArticle 86, UCMJ is a
lesser-included offense ofthe offense set forth in the Specification of Charge I. When you vote, ifyou
find the accused not guilty of the offense charged - that is, missing movement by design - then you
should consider the lesser-included offense of failure to go to appointed place of duty in violation of
Article 86, UCMJ. In order to find the accused guilty of this lesser offense, you must be convinced by
legal and competent evidence, beyond a reasonable doubt:
One, that Colonel Gordon R. Roberts and Lieutenant Colonel Christine Edwards
appointed a certain time and place of duty for the accused; that is, to report to Baltimore-Washington
International Airport in time to depart with US Airways Flight 1123, departing from Baltimore-
Washington Airport at 0840, 12 April 2010, arriving at Charlotte, North Carolina;
Two, that the accused knew he was required to be present at this appointed time and
place ofduty; and
Three, that, at or near Arlington, Virginia, on or about 12 April 2010, the accused,
without proper authority, failed to go to the appointed place of duty at the time prescribed.
The offense charged in the Specification of Charge I, missing movement by design,
differs from the lesser-included offense of failure to go to appointed place of duty, in that the offense
charged requires, as an essential element, that you be convinced beyond reasonable doubt that the
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1 accused missed the movement of the aircraft through design; whereas, the lesser-included offense does
2 not include such an element.
3 Evidence may be direct or circumstantial. "Direct evidence" is evidence which tends
4 directly to prove or disprove a fact in issue. If a fact in issue was whether it rained during the evening,
5 testimony by a witness that he saw it rain would be direct evidence that it rained.
6 On the other hand, "circumstantial evidence" is evidence which tends to prove some
7 other fact, from which, either alone or together with some other facts or circumstances, you may
8 reasonably infer the existence or non-existence of a fact in issue. If there was evidence the street was
9 wet in the morning, that would be circumstantial evidence from which you might reasonably infer it
10 rained during the night.
11 There is no general rule for determining or comparing the weight to be given to direct or
12 circumstantial evidence. You should give all the evidence the weight and value you believe it deserves.
13 I've instructed you that for the charged offense, the accused's intent to miss the
14 movement through design must be proved beyond a reasonable doubt. Direct evidence of intent is often
15 unavailable. The accused's intent, however, may be proved by circumstantial evidence. In deciding this
16 issue, you must consider all relevant facts and circumstances.
17 I've instructed that for both the charged offense, and the lesser-included offense, you
18 must be satisfied beyond a reasonable doubt that the accused knew of the prospective movement of US
19 Airways Flight 1123. This knowledge, like any other fact, may bc proved by circumstantial evidence.
20 In deciding this issue, you must consider all relevant facts and circumstances.
21 You have the duty to determine the believability of the witnesses. In performing this
22 duty, you must consider each witness's intelligence, ability to observe and accurately remember,
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1 sincerity and conduct in court, and prejudices. Consider also the extent to each witness is either
2 supported or contradicted by other evidence; the relationship each witness may have with either side,
3 and how each witness might be affected by the verdict. In weighing a discrepancy between witnesses,
4 you should consider whether it resulted from an innocent mistake or a deliberate lie.
5 Taking all these matters into account, you should then consider the probability of each
6 witness's testimony, and the inclination of each witness to tell the truth. The believability of each
7 witness's testimony should be your guide in evaluating the testimony, not the number of witnesses
8 called.
9 I've taken judicial notice that Fort Campbell, Kentucky is 722 miles from DiLorenzo
10 Medical Clinic; this means that you're now permitted to recognize and consider those facts without
11 further proof. It should be considered by you as evidence with all the other evidence in the case. You
12 may, but are not required to, accept as conclusive any matter I've judicially noticed.
13 The accused has an absolute right to remain silent. You will not draw any inference
14 adverse to the accused from the fact that he did not testify as a witness. The fact that the accused has not
15 testified must be disregarded by you.
16 An accused may be convicted based only on evidence before the court, not on evidence
17 of a general criminal disposition. Each element must stand on its own, and you must keep the evidence
18 of each offense separate. Stated differently, the accused, pursuant to his plea of guilty, has been found
19 guilty of failing to obey a lawful order in Specifications 1-3 of Charge II. You may not use the fact that
20 the accused has pled guilty, and has been found guilty of these offenses, as a basis for inferring,
21 assuming or proving that he committed the offense charged in the Specification of Charge 1, or its lesser­
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included offense. If evidence has been presented which is relevant to more than one offense, you may
consider the evidence with respect to each offense to which it is relevant.
The burden is on the prosecution to prove each and every element of each offense beyond
a reasonable doubt. Proof of guilt of one offense carries with it no inference the accused is guilty of any
other offense.
You are further advised:
First, that the accused is presumed to be innocent until his guilt is established by legal
and competent evidence beyond a reasonable doubt;
Second, if there is a reasonable doubt as to the guilt of the accused, that doubt must be
resolved in favor of the accused, and he must be acquitted;
Third, ifthere is a reasonable doubt as to the degree of guilt, that doubt must be resolved
in the lower degree of guilt as to which there is no reasonable doubt;
Lastly, the burden of proofto establish the guilt ofthe accused beyond a reasonable doubt
is on the government; the burden never shifts to the accused to establish innocence, or to disprove the
facts necessary to establish each element of the offense.
A "reasonable doubt" is not a fanciful or ingenious doubt or conjecture, but an honest,
conscientious doubt suggested by the material evidence, or lack of it, in the case, It is an honest
misgiving, generated by insufficiency of proof of guilt.
"Proof beyond a reasonable doubt" means proof to an evidentiary certainty, although not
necessarily to an absolute or mathematical certainty. The proof must exclude not every hypothesis or
possibility of innocence, but every fair and rational hypothesis, except that of guilt.
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The rule as to reasonable doubt extends to every element ofthe offense, although each
particular fact advanced by the prosecution which does not amount to an element need not be established
beyond reasonable doubt. However, if, on the whole evidence, you are satisfied beyond a reasonable
doubt of the truth and each and every element, you should find the accused guilty.
You should bear in mind that only matters properly before the court as a whole should be
considered. In weighing and evaluating the evidence, you are expected to use your own common sense,
and your knowledge of human nature and the ways of the world.
In light ofall the circumstances in the case, you should consider the inherent probability
or improbability ofthe evidence. Bear in mind that you may properly believe one witness, and
disbelieve several other witnesses whose testimony is in conflict with the one. The final determination
as to the weight or significance ofthe evidence, and the credibility of the witnesses in this case, rests
solely upon you.
You must disregard any comment or statement or expression made by me during the
course of the trial that might seem to indicate any opinion on my part as to whether the accused is guilty
or not guilty, since you alone have the responsibility to make that determination. Each of you must
impartially decide whether the accused is guilty or not guilty in accordance to the law I've given you,
the evidence admitted in court, and your own conscience.
At this time, you will hear argument by counsel. Counsel may make reference to the
instructions that I gave you. In that regard, I would merely say that if there is any inconsistency between
what counsel may say about the instructions, and the instructions I give you, you must accept my
statement as being correct.
As the government has the burden ofproof, trial counsel may open and close.
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Government, you may proceed.
ATC: Thank you, ma'am.
[During argument, the assistant trial counsel used AE XXXIV.]
May it please the court, Colonel Gerding, members of the panel, General Patton said, "I
am a soldier. I fight where I am told, and I win where I fight."
We are here because the accused did not act like a soldier. He did not fulfill his duty, and
he did not fight where he was told.
The accused is a squadron surgeon, as you heard, and he was necessary to fill a specific
position with the 1I32d Cav of the 101 st. The 1/32d Cav deployed in the spring of 2010, but Colonel
Lakin decided he was not with them, and they're still at FOB Bostic in eastern Afghanistan ---­
CDC: Objection, Your Honor, arguing facts not in evidence.
ATC: And here, still, is the accused.
Members of the panel, you heard the judge instruct on missing movement and failure to
report. This case is not about failure to report. This case is about missing movement. The military
judge instructed you on the elements of missing movement, which are:
One, that the accused was required in the course of duty to move with - in this case, a
commercial aircraft;
Two, that the accused knew of that movement;
Three, that the accused missed the movement; and
Four, that he missed the movement through design, which means intentionally.
You heard the testimony ofthe S3, Major Ivener, that the accused's name came up in
PROFIS, which was the system that's used to fill professional slots in units. He showed you the copy of
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the tasker that he sent to the accused on 16 February 2010. That tasker said, "Deploy dates: 12 April
2010 to 8 July 2010, [Lieutenant] Colonel Terrence Lakin."
You heard from Colonel Ivener as well that from this tasker, the TCS orders were issued.
The first order, which was issued 23 February 201 0 - and it says the number of days, "12 April 2010
through 8 July 2010," "will proceed date: 12 April 2010." There is a mistake on that with the report
date, "13 March 2010," so they had to do an amendment. You heard about the corrected copy, which
came out on 11 March 2010; and on the corrected copy, the report date was changed to 12 April 2010,
with a report time of 1500 hours.
There are three different versions of those orders; these are the first two, and then the
third one was issued on 9 April 201 O. You heard Major Ivener testify that the only change on this order
was that they removed the portion about reporting to the CRC; everything else on this order was the
same.
You also heard Major Ivener testify that when he had that second order, the accused was
very concerned, emailed back and forth, that he wanted to make sure that that one wrong date was
changed, even though they assured him that it was correct, because he did not want to miss movement.
So, he was cognizant ofthat fact.
And the third and final set of TCS orders, which were issued on 9 April 2010, they only
removed that one instruction. Major Ivener told you on the stand that he didn't report to the CRC
because he was going to join his unit and to integrate, and to complete his required deployment training
before he moved out with the rest of his unit. Everything else on the orders remained the same.
That's just a timeline for you, members of the panel. The third and final TCS orders
were actually issued after the flight was booked, after the accused had violated the order of Colonel
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Judd, after receiving the counseling from Colonel Judd, and after he violated the order of Colonel
Roberts. But the entire time, from February of2010, the understanding was, and the order stated, that
he'd be deploying on 12 April 201 0, going to Fort Campbell on that date.
So, it was clear that the accused knew of his duty well before he received that final set of
orders. You heard Ms. Behan, the budget analyst from DiLorenzo Clinic, and she testified that the
accused gave her that second set ofTCS orders in March 2010, and she used those to coordinate with the
accused to set up his flight. She said that she looked at the available flights, and she came back to the
accused with two options; and from those options, he chose to fly out of BWl; the specific time that he
was going to fly; and he chose the flight that would get him to Fort Campbell shortly before the report
time, which was 1500 hours on 12 April 2010.
Because he chose, he knew that his US Airways Flight 1123 was leaving from BWI to
Charlotte, North Carolina at 8:40 AM, and that Flight 966, which followed, was to arrive in Nashville,
Tennessee at noon. You heard testimony that he had coordinated with the company commander, and
knew that the company commander would be waiting in Nashville, Tennessee when he arrived around
noon, and after he picked up his luggage, to drive the accused the approximate hour to Fort Campbell,
getting him there soon before 1500 hours. He knew that ifhe did not make that flight, he would not be
able to get to Fort Campbell on time.
But the accused did not make the flight Instead, you heard Colonel Edwards testify that
he reported to DiLorenzo Clinic around 0630 that day. Colonel Edwards, the accused's deputy
commander, called Colonel Roberts, the brigade commander, who told her to tell the accused that he
could still make that flight. Colonel Edwards said on the stand that she told the accused that his place of
duty was on that plane to Fort Campbell, and she told the accused that he still had time to make that
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1 flight. He had all the flight infonnation, and had coordinated with the unit for that particular flight.
2 Still, he intentionally missed the movement of Flight 1123 to get him to Fort Campbell to prepare to
3 deploy with the 1/32d.
4 Many service members think ofmissing movement as a soldier missing a military aircraft
5 to get to Kosovo, or to Kuwait. But that's not always the case, members of the panel. The military
6 judge instructed you that movement means, "A major transfer of a vehicle, including an aircraft,
7 involving a substantial distance and period of time/' and that movement may include the deployment of
8 a civilian aircraft in conjunction with TCS assignments. That is exactly what we have here - a civilian
9 aircraft moving a substantial distance and period of time, in conjunction with a TCS assignment.
10 The judge also infonned you that missing movement is not the failure of a service
11 member to make a routine movement, when such failure is unlikely to cause foreseeable disruption to
12 military operations.
13 But this was not a routine movement. The accused deliberately missed his flight to Fort
14 Campbell, via Charlotte and Nashville, to integrate into his unit and receive the required training for his
15 imminent onward movement to Afghanistan. This disruption was not only foreseeable, it was
16 deliberate. Remember, the accused had notice of this TCS date since 16 February 2010, but he chose
17 not to infonn the command that he may not deploy until 30 March 2010. Even then, he did not
18 absolutely say that he was not going to deploy.
19 The accused hinted to various people, including Colonel Edwards, to whom he stated that
20 he did not want to be accountable for fraud, waste and abuse if missed movement. But this was less than
21 2 weeks before the accused had to report to Fort Campbell to join his unit, with whom he was supposed
22 to deploy, and he told his commanders that he may not go.
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Then, he avoided his commanders, who were trying to plan for the contingency and
preempt the possibility that the accused would miss movement, and the 1I32d would deploy without
their fully-trained flight surgeon.
Based on this, you heard the command testify that they scrambled to get a replacement to
fill the position that was left open by the accused. However, they only had less than 2 weeks to try to
get somebody there. Again, they did not know for sure ifhe was going to miss that movement. All the
indications that they had said he was going to go. He worried about the fact that his travel orders were
correct. He booked his flight. He tried to get a government travel card turned on. He talked about
getting a rental car. He ultimately told Ms. Behan, and you heard her testify, that he was all set, that
he'd coordinated with the gaining unit for his transportation when he got to Fort Campbell, when he
took Flight 1123.
His command did not know that he was not going to show up until 12 April 2010, when
he appeared at DiLorenzo. He chose the last possible moment to declare that he was going to miss
movement. He knew that he couldn't make the 722 miles to Fort Campbell on time by 1500 when he
chose to miss that flight. To make it on time driving, he would've had to leave DC immediately after
speaking to Colonel Edwards, drive 90 miles an hour the entire time, all the way from DC. That's not
just impractical, members of the panel-- that is impossible.
Again, members of the panel, missing movement - the accused was required in the
course of duty to move; he knew of the movement; he missed the movement; and that was through
design.
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1 The government has met its burden and proven each and every element of missing
2 movement, which is why the government is confident that when you return from deliberations, you will
3 find the accused guilty ofmissing movement. Thank you.
4 MJ: Mr. Puckett?
5 CDC: Thank you, Your Honor.
6 Good morning, Colonel Gerding, members ofthe court. Thank you for your patience
7 with all we went through yesterday, and your patience waiting today. So much of this is waiting, and we
8 really appreciate that.
9 Where to begin? What you have to decide today is not whether Lieutenant Colonel Lakin
10 disobeyed his orders to move to Fort Campbell, whether he disobeyed Colonel Roberts's orders. You
11 don't have to decide those things, because he's already pled guilty to those things. That's really what
12 this case is about.
13 In fact, most of the witnesses we heard from yesterday, who were purportedly testifying
14 on the missing movement really were talking about the fact that he knew he had to go, and he didn't go.
15 That's what all those witnesses were talking about.
16 So, the instructions that you were just read, and that you'll be able to see, talk about two
17 options you have here actually, you have three options. You can find Lieutenant Colonel Lakin not
18 guilty as charged ofmissing movement; or you can find him guilty of either missing movement or
19 failure to go to his appointed place of duty. What's the difference between those two? The judge told
20 you what the difference was. There were lots of instructions, but let me focus on the difference. Here is
21 what she said, and here is what she'll read on the paper.
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They differ in that the offense charged, missing movement, requires as an essential
element that you be convinced, beyond a reasonable doubt, that the accused missed movement ofthe
aircraft: through design. The key word here, really, is "design." Whereas, the lesser offense does not
include such an element; failure to go does not have as an element "design."
What does "design" mean? Captain Overgaard just said that "design" means
intentionally. No, that is not what it means; it has never meant that. The word "intentionally" is found
throughout the Uniform Code of Military Justice and the Manual for Courts-Martial. When the law
means "intentionally" for offenses, it says "intentionally."
So, what is "design?" There has never been any issue about intent here - that is clear.
What is "design?" Design is something greater. Design is a plan; design is a scheme; design is a
strategy. It is not just an intent to do something. It is, at a minimum, a plan. He had a design to do this.
Just think about the word "design." To design something, you're sketching it out, you're drawing it out,
you're doing a wire diagram, you're designing things. You're not just intending something.
So, don't be misled by, 'well, it is just intentional,' because it is not. That is very
important here. It is very important in this case. Because we know, and you'll see it in the evidence,
and it has been referenced here - we know, specifically, what Lieutenant Colonel Lakin was thinking.
How do we know that? We know that by emails. Actually, Captain Overgaard
mentioned it in her argument to you. She said, 'Lieutenant Colonel Lakin told others,' I'm paraphrasing
here, 'told others, and it is in emails, and you'll see it, that he did not want to miss movement.' You'll
see emails where he says, '1 don't want to miss movement.' She also said, 'He chose the last possible
moment to decide not to go.' Is that a design? Is that a design to miss the movement of an official
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transportation? No, that's not a design. He chose the last possible to make up his mind. It is not a
design.
She also referenced the fact that the common understanding of missing movement is
and you all know this, because you've dealt with this before the common understanding is, a unit has
transportation arranged for them -- maybe it is a charter flight on one of the charters that cooperate with
the US government; everybody shows up at the airport, or in the case of we Marines, everybody shows
up at the dock and we load onto a Navy ship and we go, soldiers and others climb onto aircraft and we
go; and we move as a unit. Folks, we've got failure to go offenses, we've got AWOL offenses, to cover
not showing up.
But there is a very special separate offense that has been designed in military law that
contemplates a Soldier, a Marine, or a Sailor or Airman, choosing, by design, not to deploy with his unit.
Deployment is only one example. It could be - our unit is moving from a west coast camp to an east
coast camp, and that would be a substantial movement, and we're all going together, and here is the date
we're going. That would be missing movement.
She is also right in that the law does permit, under very special circumstances provided it
is all kind of designated and planned out in advance - and a very important question came from one of
the members yesterday, did that cause an addendum order to be spit out? I forget the nomenclature - in
other words, did that cause a modification of the orders once that was made? Well, no, it didn't create a
modification to the orders.
You can hearken back to Colonel Roberts's testimony, where I specifically asked him,
'Did you, directly or indirectly through a subordinate, tell him to get on that plane?' He said, 'No, I
didn't say that.'
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Colonel Edwards recollected that she told Lieutenant Colonel Lakin, 'Your place of duty
is to get your butt on that airplane.' What she did not say is, 'Colonel Roberts told me to say this.' She
told you that she has this deputy commander job, and that she helps prepare his OER. You can say,
well, maybe she is in a command position above him. But really, what that's about is, and we know
this, these are doctors and nurses and hospital professionals, and they figure out some kind of
organizational structure that suits them, but when it comes to the command position, I'll bet the
commander position is designated in Army regulations, and I'll bet those three sub-level deputy
commander positions are just ---­
ATC: Objection, facts not in evidence.
MJ: Sustained.
CDC: An inference.
MJ: Sustained.
CDC: It is possible. It is possible that those things are not authorized by Army regulation,
because you don't have any evidence in front of you that those deputy commander positions were
authorized by the Secretary of the Army. You don't have any evidence ofthat.
So, her position could be very informaL
In any case, it wasn't delivered as, 'Colonel Roberts said put your butt on the plane.' She
was offering it as a friend. She cared about him. They were peers. That was her opinion about what he
ought to be doing.
So, there is some doubt about whether there was a duty to move, as to whether or not to
apply that to missing movement.
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Here is the interesting thing that I want you all to consider. I do want you to reference ­
the military judge has stated you can't use the fact that he has pled guilty to the offense of failing to
obey his orders as proof that he also missed movement. Everybody testified about this. What was the
idea here? What was Colonel Roberts's idea? He wanted to talk to Lieutenant Colonel Lakin, and did
get to talk to Colonel Lakin, and said, 'You know, it is really important that you do this, that you follow
your orders. The Anny needs you to do that. That unit needs you to do that. You need to go there.
You need to be there. What can I tell you to convince you to do that?'
That's what this case is about. Now, because there is a narrow, little thread to which you
can sometimes designate a specific airplane and an individual movement as missing movement, which I
would argue is not the real reason why that offense exists, the government has taken that opportunity to
say, 'What else can we get him for? How many things in the UCMJ can we find to charge him with?'
What it becomes is, really, getting away from the central problem here, and the problem is he refused his
orders. He'll talk to you about that later today. He'll tell you all about that.
MJ: Counsel
CDC: Thank you, Your Honor.
This is really about failing to obey his orders. I will tell you that, and the judge has given
you this, and you'll be able to read it really, what happened that day on Aprilli
h
is he failed to go to
his appointed place of duty. That's what he did. He didn't have the design to miss movement. That
never entered his mind. There is no evidence that, in his mind, was a design to miss movement. In fact,
the evidence would indicate that he waited until the very last possible day to actually decide not to obey
his orders, not to transfer on his TCS orders.
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1 There is no evidence of design. I will tell you that, rather than calling this missing
2 movement, had they just charged him with failing to go, he would have pled guilty to it ---­
3 A TC: Objection, Your Honor.
4 MJ: Counsel, that is objectionable. Proceed.
5 CDC: Thank you, Your Honor.
6 I want you to consider those facts about missing movement, and about the concept of
7 design, and understand that you don't have evidence in fact, you have evidence to the contrary - that
8 Lieutenant Colonel Lakin had a design, a plan, a scheme, to miss movement. There is not only no
9 evidence ofthat, there is evidence to the contrary. So, there is just simply no way that you can reach a
10 finding of guilty for Lieutenant Colonel Lakin for missing movement. That is not what the law is about.
11 That is just piling on. It is unfair. You should demand fairness.
12 What you certainly can find him guilty of, what you certainly do have evidence of -
13 through Lieutenant Colonel Edwards, through him making arrangements, through connection to his
14 orders, that he should have gone to BWI on Aprillih. He failed to go to his appointed place of duty.
15 Let's not try to stretch, imagine or make it something that it is not, make it something we don't have
16 proof beyond a reasonable doubt of; in fact, something we have proof to the contrary of. Call it what it
17 IS. Call it failure to go to his appointed place of duty, as is spelled out in the instructions.
18 He is not blameless here. But that's aU this was about yesterday. This was about failure
19 to go to one's appointed place of duty.
20 So, when you finish getting instructions, and you go back and deliberate and chat about
21 this, and have discussions and deliberations about this, you ought to be very easily all concur that that's
22 what this is. Calling it something greater doesn't make it that, and it doesn't magically create evidence
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of that. There is no evidence of design. So, simply call it failure to go, find him guilty of that, and w : ~ ' l l
move on.
Thank you very much.
MJ: Trial counsel, rebuttal argument?
ATC: Yes, ma'am.
Members of the panel, you heard the defense attorney say in opening that the only reason
that the accused is not guilty is because no one will come in and testify that he was told to get on the
plane. But somebody did. This is not a failure to report. The accused had a duty to report to Fort
Campbell to integrate and prepare to do his pre-deployment requirements to move forward with his unit
to Afghanistan. He knew of that duty in February 2010. In the course of that duty, he picked the day,
the airport, the time, the flight, one that would get him there right before he needed to report. His
choices were intentional; they were by design.
"Through design," as the military judge instructed you, means, "on purpose,
intentionally, or according to plan, and requires the specific intent to miss the movement." The accused
intentionally missed that movement. He got to DiLorenzo that morning, and Colonel Edwards, the
deputy commander, said, "Your place of duty is on that plane to Fort Campbell." He had a duty to be on
that flight. He had a duty to make that movement.
That is why, members of the panel, that the accused is guilty.
MJ: Members of the panel, the following procedural rules apply to your deliberations and
must be observed:
The influence of superiority in rank will not be employed in any manner in an attempt to
control the independence ofthe members in the exercise of their own personal judgment. Your
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deliberations should include a full and free discussion of all the evidence that has been presented. After
you have completed your discussion, then voting on your findings must be accomplished by secret,
written ballot, and all members of the court are required to vote.
If you find the accused guilty of any specification under a charge, the finding as to that
charge must be guilty. The junior member will collect and count the votes. The count will then be
checked by the president, who will immediately announce the result ofthe ballot to the members.
The concurrence of at least two-thirds of the members present when the vote is taken is
required for any finding of guilty. Since we have eight members, that means six members must concur
in any finding of guilty. You may vote only once on the specification and charge. If you have at least
six votes of guilty of any offense, then that will result in a finding of guilty for that offense. If fewer
than six members vote for a finding of guilty, then your ballot resulted in a finding of not guilty, bearing
in mind the instructions I just gave you about voting on the lesser-included offense.
You may reconsider any finding prior to its being announced in open court. However,
after you vote, if any member expresses a desire to reconsider any finding, open the court and the
president should announce only that reconsideration of a finding has been proposed. Do not state
whether the finding proposed to be reconsidered is a finding of guilty or not guilty, or which
specification and charge, or lesser-included offense, is involved. I will then give you specific further
instructions on the procedures for reconsideration.
As soon as the court has reached its findings, and I have examined the findings
worksheet, the findings will be announced by the president in the presence of all parties. As an aid in
putting your findings in proper form and making a proper announcement of the findings, you may use
Appellate Exhibit XXXIII, the findings worksheet, which the bailiff may now hand to Colonel Gerding.
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1 [The bailiff did as directed.]
2 Colonel Gerding, as indicated on Appellate Exhibit XXXIII, the first portion will be used
3 ifthe accused is acquitted or convicted of the Charge and its Specification; the second part will be used
4 if the accused is convicted of the lesser-included offense of failure to go to appointed place of duty.
5 You'll note that the findings worksheet has been modified to reflect the words that will be deleted, as
6 well as the words that will be substituted therefor if you find the accused guilty of the lesser-included
7 offense. This modification to the worksheet in no way indicates an opinion by myself or counsel
8 concerning any degree of guilt of this accused; this is merely an aid to you in understanding what
9 findings may be made in the case, and for no other purpose whatsoever. The worksheet is provided only
10 as an aid in finalizing your decision.
11 Do you have any questions about the worksheet?
12 PRES: No, Your Honor.
13 MJ: If during your deliberations you have any questions, open the court and I will assist you.
14 The Unifonn Code of Military Justice prohibits me, and everyone else, from entering your closed­
15 session deliberations.
16 As I mentioned at the beginning of the trial, you must all remain together in the
17 deliberation room during deliberations. While in your closed-session deliberations, you may not make
18 communications to, or receive communications from, anyone outside the deliberation room, by
19 telephone or otherwise.
20 If you have need of a recess, if you have a question, or when you have reached findings,
21 you may notify the bailiff, who will then notify me that you desire to return to open court to make your
22 desires or findings known.
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Further, during your deliberations, you may not consult the Manual for Courts-Martial or
any other publication, unless it has been admitted into evidence.
Colonel Gerding, would you like a brief recess before we close the court for
deliberations? How long would you like?
PRES: Ten minutes?
MJ: We'll go ahead and recess the court. We'll reconvene at 1210.
[The members withdrew from the courtroom at 1250, 15 December 2010.]
[END OF PAGE]
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MJ: Let the record reflect the members have departed.
Is there anything we need to address before we recess the court?
TC: Yes, Your Honor.
The government requests a curative instruction, in accordance with the sustained
objection, about the impropriety of arguing charging decisions to the panel. It was mentioned more than
one time. The objection was sustained. The government would like clarification that that's not before
the panel. It is not proper argument, and it is not for their consideration.
MJ: Draft an instruction, and I'll consider it.
TC: Yes, ma'am.
MJ: Court is in recess.
[The session recessed at 1151, 15 December 2010.]
(The session was called to order at 1211, 15 December 2010.]
MJ: This Article 39(a) session is called to order.
Let the record reflect all parties present when the court last recessed are again present in
court; the members are absent.
I'd like a copy of the findings instructions marked as the next appellate exhibit [AE
XXXV.]
Lieutenant Colonel Lakin, Mr. Puckett, in his closing argument, discussed with the panel
the possibility of them finding you guilty of the lesser-included offense. Did he consult with you with
respect to that portion of the argument?
ACC: Yes, Your Honor.
MJ: Do you agree with that?
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1 ACC: Yes, Your Honor.
2 MJ: Finally, the government has proposed that I give the following instruction to the
3 members: "During closing argument, defense counsel improperly made reference to charging decisions
4 in this case. You are hereby directed to disregard any such comments in your deliberations. You have
5 previously been instructed to make your decision as to the guilt or innocence based solely on whether
6 each element has been proven beyond a reasonable doubt." I've had that marked as the next appellate
7 exhibit in line [AE XXXVI].
8 I'm not going to give that instruction, but I am going to give the following: "Members of
9 the panel, I advise you that your duty as court members is not to speculate or determine why any
10 particular charge or charges were referred to this court for trial. Your duty as court members is to
11 determine whether the accused is guilty or not guilty ofthe Specification of Charge I, or its lesser­
12 included offense, based on the evidence presented here in court and upon the instructions that I will give
13 you."
14 Is there any objection to that instruction?
15 TC: No, ma'am.
16 CDC: No, Your Honor.
17 MJ: I'll have that as the next appellate exhibit in order [AE XXXVII].
18 Is there anything else we need to address before we call the members?
19 TC: No, ma'am.
20 CDC: No, Your Honor.
21 MJ: Please cal1 the members.
22
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[The members returned to the courtroom at 1214, 15 December 2010.]
MJ: Let the record reflect the members have returned.
Members of the panel, before we proceed, 1'd like to advise you of one thing.
I advise you that your duty as court members is not to speculate or detennine why any
particular charge or charges were referred to this court for trial. Your duty as court members is to
detennine whether the accused is guilty or not guilty of the Specification of Charge I, or its lesser-
included offense, based on the evidence presented here in court, and upon the instructions that I will
give you. Can all of you follow that instruction?
MEMBERS: [Affinnative responses.]
MJ: A written copy of my instructions are Appellate Exhibit XXXV, which I will ask the
bailiff to give to Colonel Gerding.
Counsel, are the exhibits prepared?
TC: I believe they are, Your Honor.
MJ: Bailiff, would you please hand the exhibits to Colonel Gerding as well?
[The bailiff did as directed.]
Are the members ready to close the court for deliberations?
PRES: Yes, Your Honor.
MJ: Anything else we need to address?
CDC: No, Your Honor.
TC: No, ma'am.
MJ: The court is closed for deliberations.
[The court-martial closed at 1215, 15 December 2010.]
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1 [The session was called to order at 1216, 15 December 2010.]
2 MJ: Let the record reflect the members have departed; this Article 39(a) session is called to
3 order.
4 Lieutenant Colonel Lakin, regardless of what the members come back, based upon your
5 earlier plea and findings, we will be having sentencing proceedings in this case.
6 You have the right to present matters in extenuation and mitigation; that is, matters about
7 the offenses or yourself that you want the court to consider in deciding your sentence.
8 In addition to the testimony of witnesses, and the offering of documentary evidence, you
9 yourself may yourself testify under oath as to these matters, or you may remain silent, in which case, the
10 court will draw no adverse inference from your silence.
11 On the other hand, if you desire, you may make an unsworn statement. Because the
12 statement is unsworn, you cannot be cross-examined on it; however, the government can offer evidence
13 to rebut any statement of fact made in your unsworn statement. An unsworn statement may be made
14 orally, in writing or both; it may be made by you, by counsel on your behalf, or both.
15 Do you understand these rights?
16 ACC: I do, Your Honor.
17 MJ: Counsel, are you prepared to proceed to see if the data on the front page of the charge
18 sheet is accurate?
19 TC: The data is not accurate, Your Honor. We need to make an amendment as to the
20 accused's basic pay.
21 MJ: Are you prepared to do that?
22 TC: Yes, we are, Your Honor. We believe the proper amount is $7,535.10.
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1 Ml: Is that correct?
2 ACC: Yes, Your Honor.
3 Ml: Lieutenant Colonel Lakin, how many years of service do you have?
4 ACC: I have 17, ma'am.
5 Ml: Did you say $7,535. to?
6 TC: Y es, Your Honor.
7 Ml: Would you like to make that change?
8 TC: Yes, ma'am.
9 [The trial counsel amended original charge sheet as described.]
10 Ml: [Reviewing charge sheet.] I see the changes to the basic and total pay in blocks 7a and
11 7c. Are there any additional changes that need to be made to the original charge sheet?
12 TC: No, ma'am, not from the government.
13 CDC: No changes, Your Honor.
14 We have an additional issue we'd like to raise.
15 Ml: For sentencing, or for now?
16 CDC: Sentencing, Your Honor.
17 Ml: Why don't we go ahead and finish this.
18 CDC: I'm sorry, Your Honor, I didn't mean to interrupt. I've made you mad enough.
19 Ml: I'm not mad, Mr. Puckett.
20 Has Lieutenant Colonel Lakin been punished, in any way, prior to trial that would
21 constitute illegal pretrial punishment under Article 13?
22 CDC: No, Your Honor, he has not.
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MJ: Lieutenant Colonel Lakin, what Article 13 is is a provision in the Uniform Code of
Military Justice, which essentially prohibits anyone from imposing pretrial punishment upon you, except
for the amount of restraint necessary to insure your presence for trial. In addition, your chain of
command may not publically humiliate or degrade you as a form of punishment.
Have you been punished, in any way, prior to trial in violation of Article 13?
ACC: No, ma'am.
MJ: Based on my understanding, there was no pretrial confinement involved in this case, so
no pretrial confinement credit issues?
CDC: No, Your Honor.
MJ: I believe that's it. What issue would you like to raise?
CDC: Thank you, Your Honor.
TC: I apologize, Your Honor,- the government does have a brief issue to raise, perhaps in an
802, regarding findings, prior to discussing anything that relates to sentencing.
MJ: We can do that. What's the issue you want to raise?
TC: I don't want to take it out of order, Your Honor, in case it is sentence-specific.
CDC: I think it doesn't matter, the order.
Your Honor, we really didn't have evidence of this until it was presented through Colonel
Roberts' testimony, but I would like the court to consider my motion to find the first two specifications
of Charge II an unreasonable multiplication of charges, and here is why.
He testified - we certainly can review his testimony he testified that at the heart ofboth
his verbal and written order, he wanted one meeting with Lieutenant Colonel Lakin. He ultimately got
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that meeting, but in the meantime, Lieutenant Colonel Lakin, obviously, did not show up for the first
meeting, and he did not show up for the second meeting, both on the same calendar day.
We believe that the government is not permitted to punish the ultimate offense here is
that he missed a meeting with his commanding officer. A multiplication in the number or form of
directions given to come to a meeting should not form the basis for additional charges. In other. words,
he could have been told - conceivably, he could have been told; multiple messengers could've been
sent; multiple times could have been set for a meeting. They could've been slid every half-hour. That
would be no different than there being a meeting at 1345 and a meeting at 1700, and the ultimate offense
really is that he missed a meeting with the commanding officer.
I understand that they were two separate meetings, but based on Colonel Roberts's
testimony - and I asked him pretty carefully about this - the offense here is that he missed a counseling
session with the commanding officer. I don't believe that multiple orders to come to a counseling
session with the commanding officer should generate multiple charges.
I would ask that those two be combined for sentencing purposes, and there be only 6
months of confinement authorized for those two offenses, taken together.
MJ: Are you asking that they be multiplicious for sentencing?
CDC: Yes, Your Honor, not findings.
MJ: Government, would you care to respond, or do you want some time?
TC: The government is prepared to respond, but could use additional time. We don't have the
case law handy to argue that particular multiplication argument. The government disagrees and opposes
the motion, and would appreciate an opportunity.
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MJ: Why don't we do this? I'll take that under advisement while the members are
deliberating, and you can prepare additional argument that either side would like to raise.
Is the government prepared to raise any issue now, or do you want to think about it?
TC: We're fine, ma'am. We'll go ahead and wait for the next opportunity.
MJ: Does either side desire to introduce any documentary evidence? I believe the
government already has some.
TC: Yes, rna' am, some of our documentary evidence has already been introduced; in addition,
the government has some audio and video files, which we've tried to come up with the most efficient
way to authenticate, for purpose ofthe defense, and then offer for use in sentencing. Some of them
would be related to, we believe, the government's case in aggravation; some ofthem may be related to a
rebuttal case, in the event the accused makes an unsworn or sworn statement.
The government's intent is to offer the entire universe of the files now, with the
authentication, which the defense has reviewed; and in the event we want to publish particular portions
to the panel, publish them as separate exhibits, so we can make clear what the source evidence is, and
then what is published to the paneL
MJ: Are you intending on publishing to the panel audio-visually?
TC: Yes, Your Honor, there is at least one video we're intending to publish to the panel in
our case in aggravation, in its entirety; we already had that video marked as a separate exhibit - it
doesn't have the authentication information there, just merely the video. Then there are other portions
of the audio-visual files contained here that we'd like to offer either in our case in aggravation, or
potentially, in our case in rebuttaL At the time, we would clarify for the record and to defense which
portions we were offering, and what the relevance was.
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1 The goal now is to admit all of them, but not necessarily that we would publish all of
2 them to the panel - that they would take them back for their sentencing deliberations.
3 If there is a more efficient way, Your Honor, the government is happy to do it; I just
4 wanted to make sure the record was clear that they were authentic, the defense waived the objection to
5 authenticity, or consented to the authenticity, and they were admitted, and how would use them in a way
6 that's efficient for the sentencing case.
7 MJ: Am I understanding you correctly that you have all of the audio-visual materials on that
8 CD/ROM that you're talking about?
9 TC: Yes, ma'am.
10 MJ: Some will be in your case-in-chief in aggravation; some mayor may not be in rebuttal.
11 TC: Yes, ma'am.
12 MJ: Even though you're admitting the entire CD - you want the entire CD/ROM admitted, if
13 you don't have a rebuttal case, and you won't use those parts in rebuttal, those pieces will not go back to
14 the members?
15 TC: Yes, Your Honor. Our intention was not to to the extent that some of the other files
16 involve interviews, where there is other people talking, we wanted to make sure that the completeness
17 requirements were satisfied, so it is clear to the record and to the defense what the evidence is; not every
18 portion ofthat evidence would be relevant, depending on what the government's case in aggravation is,
19 or what comes in during any defense case in extenuation and mitigation.
20 Yes, Your Honor, we would want to publish - not necessarily even to give to the panel,
21 some portions, perhaps, in rebuttal. Perhaps doing it during sworn testimony of the accused, or after, in
22 rebuttal of unsworn testimony of the accused. But there are some we want to use in aggravation, and we
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want to make sure - that's why the government is bringing it up now. The most efficient way to put
those in, so that it is clear to the court and the record what is in and what is being shown.
We're happy to submit and mark them individually, as separate exhibits, and then offer
them at the time we use them. But they were downloaded and assembled and authenticated together on
this disc. We've since then turned this disc into separate exhibits. Provided the defense doesn't have
objection, we're fine marking them completely separately and moving that way.
MJ: Defense, do you have any objection to - what is that prosecution exhibit?
TC: It is unmarked yet, rna' am.
CDC: Could we discuss that privately first?
MJ: Yes. We'll come back on the record before the members come back with findings.
TC: Just for clarity sake, Your Honor, in the event that there is any statement from the
accused, the government does intend to move forward with a case in rebuttaL That's why we would
want to pre-authenticate and pre-admit, if possible, so we can save ourselves time for the smooth
administration; we have time now, that's why we're trying to put them all in.
MJ: We can certainly address any authentication objections.
CDC: There will be no authentication objections, Your Honor.
MJ: No objections based on authenticity.
Have you discussed what you introduce in your case-in-chief?
TC: The government is aware of what we intend to offer in our case-in-chief. We can get
with the defense counsel to insure that that won't present any particular other objections, as to
admissibility, and then we'll confer with the court.
MJ: Rebuttal, that remains to be seen.
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1 TC: Yes, ma'am.
2 MJ: Is there anything else we need to address at this time?
3 CDC: Yes, Your Honor, we'd like to pre-admit Defense Exhibits A-E [for IDJ.
4 MJ: Any objection from the government to Defense Exhibits A-E?
5 TC: We don't believe so, Your Honor. We have copies of them; we've reviewed them. We'd
6 like to make copies of the documents, but we have no objection to their authenticity or admissibility.
7 MJ: Defense Exhibits A-E are admitted.
8 Is there anything else we need to address at this time?
9 TC: No, Your Honor.
10 CDC: No, Your Honor.
11 MJ: The court is in recess, awaiting the member's findings.
12 [The session recessed at 1229, 15 December 2010.]
13 [The session was called to order at 1334, 15 December 2010.J
14 MJ: This Article 39(a) session is called to order.
15 Let the record reflect all parties present when the court last recessed are again present in
16 court; the members are absent.
17 I have been advised by the bailiff that the members have some questions.
18 Please call the members.
19 [END OF PAGE]
20
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[The members returned to the courtroom at 1335, 15 December 2010.]
MJ: Let the record reflect the members have returned.
Colonel Gerding, the bailiff advises me that the members have questions?
PRES: Yes, Your Honor.
MJ: Have you written those down?
PRES: Yes, Your Honor.
MJ: Please give them to the court reporter, bailiff, to have them marked as an appellate
exhibit.
[The member questions were marked AE XXXVIII.]
I have one clarification on number four - I can't read the fourth word.
[The bailiff returned AE XXXVIII to the president for clarification, then returned AE XXXVIII to the
military judge. ]
I'm going to ask, on number four, to clarifY that in context what charge and
specification you're talking about.
[The bailiff returned AE XXXIX to the president. ]
PRES: I'm not sure I understand how you want me to do that.
MJ: Well, okay, return it to me and I'll see if we can figure it out.
[The bailiff returned AE XXXIX to the military judge.]
I have to address this with counsel outside of your presence for a few minutes. I'm going
to ask you to return to the deliberation room. We'll call you back in.
[The members withdrew from the courtroom at 1338, 15 December 2010.]
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MJ: Let the record reflect the members have departed.
Their questions are as follows:
One -- What are the dates ofthe pre-deployment leave?
Two -- Can we get a copy of the leave form?
Three - What was the date that Lieutenant Colonel Lakin's replacement reported to Fort
Campbell?
Four - What is the definition of "required?" That's what I sent back for clarification; I
wanted to see if we could figure that out ourselves first, before I ask them to do that.
It appears to me that the first three questions are factual; the members would like
additional information, which they can get under the Rules for Court-Martial.
Does either side have any objection to figuring out a way to have this information given
to the members?
CDC: There could also be relevancy objections, so they may be wanting things that we would
determine may not be relevant. As it happens, the dates of his pre-deployment leave and his leave form,
that would seem to be fine; but I question the relevance ofthe date his replacement reported, because
while that might go to sentencing, if they found him guilty, the unit being deprived of a doctor for "x"
number of days, it doesn't seem to be relevant on the issue of whether or not the elements of the two
alternative charges have been proven.
MJ: So, you don't have any objection to providing one and two?
CDC: Ifwe can find them, Your Honor, no, I don't have any objection to those.
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TC: The government will have to look to see, Your Honor, if and how we could introduce that
evidence; if we actually just have the leave fonn, that could speak for itself, or if there'd need to be
testimony about that. We can look into that and get back to the court.
MJ: Ifthe parties wish, we could also look at stipulations of fact or expected testimony for
those two pieces.
TC: Yes, ma'am.
CDC: Yes, ma'am.
TC: The government's belief is that number three certainly could be relevant, to the extent
that foreseeable disruption, they were instructed that missing routine movement is not a crime, unless
there is foreseeable disruption. Clearly, from a 401 standpoint, the actual disruption or the tendency of
the replacement to come in behind, is directly relevant to whether or not the disruption was foreseeable
or reasonable.
So, the government believes that number three could be relevant as well.
I'm not sure we've addressed the fourth one, Your Honor.
MJ: It appears to the court that the fourth request, "What is the definition of required," I
believe that's referring to element one of Charge I , "that the accused was required in the course of duty
to move with US Airways Flight 1123," and I can ask them ifthat's the case when we call them back.
Does either side have a proposal on whether we should address that, and how to address
that?
CDC: Your Honor, I think I've seen this work before. I think that since there is no the
members could come back on any case and say, 'What is the definition of is,' and then we'd say, 'Look
at Webster's.' I think the answer, and this answer has been proposed before, is - you have the
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1 instructions, there are no more instructions we can give you about that. What is required? Well, you
2 can say the normal meaning, whatever that is. But for us to pick a Webster's definition, or pick an
3 Oxford English Dictionary definition ­
4 They're looking for some kind of magic black box answer here, and there really isn't any.
5 I think it is clear enough on its face that they ought to just deal with it.
6 TC: Understanding the problem, Your Honor, it does seem to go to the difference, if any,
7 between having a duty and having a requirement to do something in the course of a duty; the language is
8 there, so the government doesn't necessarily think it is as simple as just saying, 'The requirement in the
9 course of a duty means having a duty,' because we're not prepared to say that that's necessarily the state
10 ofthe law.
11 Ifthat's what they're asking for, it is very well possible that the current instruction is
12 contemplated, and there are no additional instructions. But the government would, in addition to
13 considering the other options, would appreciate an opportunity to digest this and determine what we
14 think the best course of action is.
15 MJ: Certainly. Do both sides agree that, absent any specific definition in the Manual, the

16 normal statutory 1rrMreetien would be that the word would have its ordinary dictionary meaning?
17 CDC: Exactly, Your Honor.
18 TC: Yes, Your Honor.
19 MJ: I'll certainly give the parties some time to address these issues. Does everybody have the
20 issues clearly?
21 CDC: Yes, Your Honor.
22 TC: Yes, ma'am.
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MJ: How long do you think you'll need?
Te: Fifteen minutes, Your Honor.
In addition to conferring on this, we're going to try to track down the leave form, so
maybe until 1400 or 5 'til?
MJ: Why don't we go ahead and do this? We'll recess the court until 1400. Tell the members
- call the members out briefly, and I'll talk to them.
[END OF PAGE]
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[The members returned to the courtroom at 1344,15 December 2010.]
MJ: Let the record reflect the members have returned.
Colonel Gerding, just to clarify - number four, when you asked "What is the definition of
'required," are you referring to the first element of the Specification of Charge I?
PRES: Yes, Your Honor.
MJ: The parties and I are going to need a little bit of time to respond to your requests. We are
looking at taking about a 20-minute recess. The reason I called you back in is I want to make sure that
you understand the difference between when the court is closed and when court is recessed.
When we recess the court, once again, don't discuss your deliberations, not even among
yourselves, until you go back into your closed-session deliberations and we actually close the court for
further deliberations.
Can you all follow that instruction?
MEMBERS: [Affirmative responses.)
MJ: The court is in recess.
[The members withdrew from the courtroom at 1346, 15 December 2010.)
Is there anything else we need to address before we recess?
CDC: No, Your Honor.
TC: No, ma'am.
MJ: Court is in recess.
[The court-martial recessed at 1346, 15 December 201 0.)
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1 [The session was called to order at 1428, 15 December 2010.]
2 MJ: This Article 39(a) session is called to order.
3 Let the record reflect all parties present when the court recessed are again present in
4 court; the members are absent.
5 Counsel and I just met briefly in an RCM 802 conference; once again, that is a
6 conference where I meet with counsel to discuss issues that are arising in cases. I want to make sure that
7 we put forth what was discussed on the record.
8 First of all, I understand that the government has procured a leave form; that would
9 answer questions one and two, is that correct?
10 TC: Yes, Your Honor.
11 MJ: Have you shown it to the defense?
12 TC: We sure have.
13 CDC: Yes, Your Honor, we have seen it, and we believe that it to be the leave form they've
14 asked for; we believe it is accurate; it is for the dates 1-9 April, inclusive.
15 MJ: This has been marked as Prosecution Exhibit 21 for identification.
16 Does the defense have any objection to giving Prosecution Exhibit 21 for identification to
17 the members?
18 CDC: No, Your Honor.
19 MJ: Prosecution Exhibit 21 for identification is admitted.
20 Number three was, "What was the date that Lieutenant Colonel Lakin's replacement
21 reported to Fort Campbell?" I believe the government has that date. What was that date?
22 TC: 26 April, Your Honor.
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1 MJ: Of2010?
2 TC: 26 April 2010.
3 MJ: Does the defense agree with that date?
4 CDC: Yes, Your Honor, we agree with that date.
5 MJ: As I advised earlier, the members, in addition to the parties, have the right under Rule for
6 Court-Martial 913( c)( 1 )(F) to request additional evidence in the case. Member requests, like the
7 requests of counsel, are subject to objection. The defense advised me in the RCM 802 conference that
8 they do have an objection.
9 Mr. Puckett?
10 CDC: Thank you, Your Honor.
11 I appreciate the opportunity. Your Honor, we object to the admissibility of the date that
12 his replacement reported on two grounds - 401, relevancy, because it doesn't go to any ofthe elements
13 of the offense here. Earlier, in open court, the trial counsel had made an argument concerning your
14 instructions that had to do with what would not be considered missing movement, and that would be
15 things that wouldn't be anticipated to be a disruption, if you miss the movement. They want to offer this
16 as proof that there was some kind of disruption.
17 The first argument I would make, Your Honor, is that this information about how many
18 days it took to get a replacement into the unit goes to sentencing, it goes to aggravation, it goes to impact
19 on the unit. Because it is aggravating, it appears that because of the ruling of this court, the court would
20 let it in, whether the individual reported the day after, or whether the individual reported on the last day
21 of the unit's deployment, on the same theory.
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Our point here, Your Honor, is that we'd also like to raise an MRE 403 objection; we
believe it is more prejudicial than probative because it introduces aggravation evidence. It co-mingles
aggravation evidence and findings evidence, and would cause members who do not have legal training
to assess an adverse impact on the unit, therefore, he must be guilty ofmissing movement because the
judge said something about - I don't really understand it, but the judge said something about adverse
impact, foreseeable impact, so this must be proof that it did have an adverse impact, therefore, he must
be guilty of the offense because he would've known that.
First of all, there's no evidence before this court that my client knew how long it would
take to get a replacement, or when that replacement actually arrived.
Again, Your Honor, on 401 and 403 grounds, we object to giving them that information
because it might confuse them, cause them to misuse it, and it is more prejudicial than probative.
TC: Your Honor, the government concedes and agrees with the objection, and joins the
defense, and supports not putting that fact before the panel, in accordance with argument by the defense.
MJ: So, the government does not want the date of the replacement to go before the members?
TC: The government is not answering that question for them, based on that it is not relevant;
not to clarify for the panel why, just to say that we're not going to answer that question.
MJ: In my response to the members on question three, "What was the date that Lieutenant
Colonel Lakin's replacement reported to Fort Campbell," I'll just advise the court, "Your questions, like
questions of counsel, are subject to objection. The court will not be further answering that question."
CDC: That's fine, Your Honor, I'll just simply say that, 'For evidentiary reasons, the court
cannot answer your question at this time.' That sounds fair, what you said.
MJ: I'd like to get language agreed to by the parties.
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Does the government agree with "For evidentiary reasons?"
TC: The government prefers the court's original formulation, Your Honor.
CDC: The main idea, Your Honor, is that it is coming from the court, not the parties.
MJ: How about this? "I advised you earlier that questions by members, as questions of
counsel, are subject to objection. You can assume that this question has resulted in a sustained
objection."
TC: That's fine for the government, Your Honor.
CDC: We agree, Your Honor, and perhaps an admonition not to speculate as to the answer?
MJ: I'll include that as well.
My instruction on number four will be, "Required' does not have a specific definition in
the UCMJ or missing movement. Under normal statutory construction, when there is no specific
definition given in the law, you should consider the word 'required' as you believe it is commonly
defined and used in the English language."
Does either side have objections to that?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: Is there anything else we need to address before we call the members?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: Please call the members.
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[The members returned to the courtroom at 1436, 15 December 2010.]
MJ: Let the record reflect the members have returned.
In response to your questions, for questions one and two, "What are the dates of the
predeployment leave," and, "Can we get a copy of the leave fonn," I have admitted Prosecution Exhibit
21, on agreement of the parties. You'll have that to take back with you into the deliberation room.
[The bailiff handed PE 21 to the president.]
With respect to question three, "What was the date that Lieutenant Colonel Lakin's
replacement reported to Fort Campbell," I advise you of the following-
Your questions, like questions of counsel, are subject to objection. You can assume - the
court is not going to answer your question, and you can assume that it is the result of a sustained
objection. The court is further advised not to speculate as to what the answer to this question is.
Can all of you follow that instruction?
MEMBERS: [Affmnative responses.]
MJ: Positive response from the members.
With respect to number four, "What is the definition of required," "required" does not
have a specific definition in the Unifonn Code of Military the offense of missing movement.
Under nonnal statutory construction, when there is no specific definition given in the law, you should
consider the word "required" as you believe it is commonly defined and used in the English language.
Are the members ready to go back into closed-session deliberations?
PRES: We are, ma'am.
MJ: Anything else to address before we send the members back?
CDC: No, Your Honor.
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TC: No, ma'am.
MJ: The court is closed.
[The court-martial closed at 1439, 15 December 2010.]
[END OF PAGE]
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1 [The session was called to order at 1439, 15 December 201 0.]
2 MJ: Let the record reflect the members have departed; this Article 39(a) session is called to
3 order.
4 Is there anything else we need to address before we await the member's findings?
5 TC: No, ma'am.
6 CDC: No, ma'am.
7 MJ: The court is in recess.
8 [The session recessed at 1440, 15 December 2010.]
9 [The session was called to order at 1454, 15 December 2010.]
10 MJ: This Article 39(a) session is called to order.
11 Let the record reflect all parties present when the court last recessed are again present in
12 court; the members are absent.
13 I've been advised that the members have reached findings.
14 Is there anything we need to handle before we call the members?
15 CDC: No, Your Honor.
16 TC: No, ma'am.
17 MJ: Please call the members.
18 [END OF PAGE]
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FINDINGS
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[The members returned to the court in open session at 1454, 15 December 2010.]
MJ: Let the record reflect the members have returned.
Colonel Gerding, have the members reached findings?
PRES: Yes, Your Honor.
MJ: Are the findings reflected on the findings worksheet?
PRES: Yes, Your Honor.
MJ: If you would, please hand that to the bailiff, who will hand it to me.
[The president and bailiff did as directed.]
[Reviewing AE XXXIII.] The findings appear to be in proper form.
Bailiff, if you would, please return the findings worksheet to Colonel Gerding.
[The bailiff did as directed.]
Accused and counsel, please rise.
[The accused and his counsel did as directed.]
Colonel Gerding, please read the findings of the court.
PRES: Lieutenant Colonel Terrence L. Lakin, this court-martial finds you:
Of Charge I and its Specification: Guilty.
MJ: Please be seated.
[The accused and his counsel did as directed.]
Colonel Gerding, if you would, please hand the bailiff the findings worksheet, the
instructions and the exhibits.
[The president did as directed, and the bailiff returned the exhibits to the court reporter.]
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1 Members of the panel, we are going to enter sentencing proceedings in this case. Would
2 you like to take a brief recess before we do that?
3 PRES: No, Your Honor.
4 MJ: Counsel, do we need to take a brief recess before we ---­
5 CDC: No, Your Honor.
6 TC: No, Your Honor.
7 MJ: Trial counsel, please read the personnel data concerning the accused as shown on the
8 charge sheet.
9 TC: Your Honor, the charge sheet contains the following data:
10 Block 1 - NAME OF THE ACCUSED: LAKIN, Terrence L.
11 Block 3 - GRADE OR RANK: Lieutenant Colonel
12 Block 4 - PAY GRADE: 05
13 Block 5 - UNIT OR ORGANIZATION: Headquarters Company, Medical
14 Center Brigade, Walter Reed Army
15 Medical Center, Washington, DC
16 20307
17
18 CURRENT SERVICE:
19 Initial date: 18 June 1993
20 Term: Indefinite
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22 Block 7 - PAY PER MONTH:
23 a) basic $7,535.10
24 b) sea/foreign duty None
25 c) Total $7,535.10
26
27 Block 8 NATURE OF RESTRAINT OF ACCUSED: None
28 Block 9 DATES IMPOSED: Not applicable
29
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1 MJ: Does the government have anything further to present at this time?
2 TC: Yes, Your Honor.
3 At this time, the government offers Prosecution Exhibit 22 into evidence, which is a disc
4 containing the video previously discussed with counsel posted on YouTube on 30 March 2010, and we'd
5 request permission to publish to the paneL
6 MJ: Any objection?
7 CDC: No, Your Honor, but we're anticipating that publishing will be by way of playing it?
8 MJ: Yes.
9 TC: Yes, Your Honor.
10 MJ: Have I admitted that?
11 TC: Not yet, Your Honor.
12 MJ: Prosecution Exhibit 22 for identification is admitted into evidence.
13 [PE 22 was played.]
14 [Several persons in the gallery applauded at the conclusion ofPE 22. The bailiffs and military judge
15 admonished the gallery to come to order.]
16 TC: Your Honor, the United States calls Colonel Gordon Roberts.
17 COLONEL GORDON R. ROBERTS, US Army, was recalled as a witness by the prosecution, was
18 reminded he was still under oath, and testified as follows:
19 DIRECT EXAMINATION
20 Questions by the trial counsel:
21 Q. Sir, if you would, please reintroduce yourself to the paneL
22 A. My name is Colonel Gordon Roberts.
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1 Q. Sir, just to clarify, when counsel introduced himself to you, he mentioned what a
2 particular honor it was to meet you. Just so the parties understand, were you, up until several weeks
3 ago, the only active-duty Medal of Honor winner in the United States Army?
4 A. That's correct.
5 Q. If you could, in some more detail, please describe when you came in the Army, the
6 positions you held, and how you came to be here?
7 A. I joined the Army in 1968, as I mentioned during my testimony. I've held everything
8 from a Private in the infantry through squad leader. I came back on active duty after time in the
9 Reserves and National Guard in 1991. Since then, I've been a company commander on three occasions,
10 a battalion commander twice, and a brigade commander at Walter Reed.
11 Q. Sir, please tell the panel, when was the first you became aware that the accused might not
12 deploy?
13 A. The late-afternoonlearly-evening of 30 March.
14 Q. What did you find out?
15 A. I found out by a call from my executive officer, Lieutenant Colonel Crockett-Lynn, that
16 Lieutenant Colonel Lakin and his attorney had come to the office and presented her with a letter
17 addressed to President Obama, stating that he intended not to deploy.
18 Q. Did she show you that letter?
19 A. No, they did not leave a copy of the letter with her.
20 Q. So they showed it to Colonel Crockett-Lynn and then they took it back?
21 A. That's correct. She asked to keep a copy of that, and was not permitted to do that.
22 Q. Did she tell you anything else about what they said in that meeting?
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1 A. Very little.
2 Q. What did you do, having heard that report from Colonel Crockett-Lynn?
3 A. I told her I'd be in in the morning, and that I'd consult with SJA, and that my intention
4 was to have him corne in and see me personally.
5 Q. Did you communicate that, that he could corne and see you again that morning?
6 A. Yes, when I got there in the morning, after talking with SJA, I told my assistant, Staff
7 Sergeant Best, to call down to the Clinic and have him ordered to corne see me at l300 hours that day.
8 Q. Were you aware of the response from the accused?
9 A. Yes, we received a phone call from Lieutenant Colonel Judd, and it simply stated, "You
10 had your chance."
11 Q. Once you received that phone call, was it Colonel Judd's understanding when he told you
12 that that the accused was not going to report?
13 A. That he was not going to report at l300 hours - once that time elapsed, I had the
14 counseling statement, which I prepared that morning, sent to Lieutenant Colonel Judd to give to him
15 personally, so that he saw it, along with the order to report to me at 1700 hours.
16 TC: I'm handing you Prosecution Exhibit 4.
17 Q. Is that the original counseling statement that you prepared?
18 A. [Reviewing PE 4.] Yes, sir, it is.
19 TC: [Retrieving PE 4.]
20 Q. What was your purpose in wanting to meet with Lieutenant Colonel Lakin?
21 A. A number of things. As I'd expressed during the trial itself, I was concerned about him.
22 I'd had his record examined if I had met him in the past, and I may have when visiting the clinic - I
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did not remember that, but I had his record examined. There was really an exemplary military record.
He'd deployed in the past. I was concerned, potentially, about PTSD, something like that, might be
giving rise to this. I wanted to clarify whether or not applied only to the deployment; the President of
the United States governs all of us. I wanted to make sure that it was only going to apply to that and not
other work areas. The fact that he was not showing up when ordered by me to see me started giving me
concern that he wasn't going to work at all, and what we were going to have to do with that.
I was also very concerned in terms of - I had short notice now to identify an officer to
replace him for that deployment, if that was his intention. I wanted to make sure that was the case
before I started spinning someone up in pre-deployment mode to take his place.
Q. You mentioned, sir, when you found out he didn't come to the first meeting and when the
time passed, you wrote the counseling statement. How was that given to the accused?
A. It was given to the accused by Lieutenant Colonel Judd.
Q. Was it your intention to give it to him in person in your office?
A. It was very much my intention to give it to him in person, so that I could talk with him
and, again, try and make an assessment of what his mental condition was; also, to insure that his family
was aware ofwhat he was doing, what the probable consequences of those actions were.
Q. Did you get a chance to meet with him that day?
A. He did not show up at 1700, as ordered; then I had it conveyed to him that he was to
come see me the following day, or he would be escorted in.
Q. Before we get to the next day, sir - the facts are before the panel; you issued him a
written order, "You will report at 1700" that day.
A. That's correct.
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Q. And obviously, he did not do that?
A. That's correct.
Q. The next day, through the chain of command, you indicated he would have him escorted
up to see you?
A. That's correct.
Q. Did he eventually report?
A. He did.
Q. What did you tell him when he reported on 1 April?
A. First of all, I explained to him that the not reporting was also a violation of the Uniform
Code of Military Justice because it was a direct order from myself, as the commander. I also explained
to him that he's an officer in the United States Army and obligated to follow the orders given; that
unlike an enlisted soldier, his oath doesn't have in there the statement, "I will obey the orders of the
President and those appointed over me." It says, "I will serve with no mental reservation." At the point
in time that you have mental reservation, you have an affirmative obligation as a commissioned officer
to either resign, request early retirement - some action, other than to try and continue serving. I was
also concerned about whether or not this was trying to use the deployment itself as the show issue.
Q. When you say "show issue," what do you mean, sir?
A. For news media, for coverage - the deployment and refusing that order is sexy, attracts
attention.
Q. Were you aware at that time that the accused had posted a Y ouTube video, declaring his
intention to disobey his deployment orders?
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1 A. I was - again, on the night of the 30
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, my 83 called me and said that that was showing
2 up. I have not yet seen it.
3 Q. When the accused came to see you, did you explain to him how serious the misconduct
4 he was discussing was?
5 A. Yes, very much. In fact, it is laid out explicitly in the counseling statement.
6 Q. Did you reemphasize to him the consequences of his actions?
7 A. Absolutely.
8 Q. What did you say?
9 A. I explained to him that it could result in court-martial; it could result in confinement; it
10 could result in loss ofretirement benefits, Veterans Administration benefits - everything.
11 Q. Did you discuss with him the impact on his family?
12 A. Very much - again, that, for me, was a central focus. I've been in the Army a long time.
13 I've gone on a large number of deployments, and know the consequence and sacrifice that families
14 make. They are a contributing member to our nation's defense. They are owed all ofthese entitlements
15 and things that we get as a result as well.
16 Q. At that time, you communicated to him that he was putting all ofthat at risk by deciding
17 to disobey his deployment orders?
18 A. Yes.
19 Q. Did you encourage him to obey them?
20 A. Oh, yes. I explained to him that at 1500 hours, by whatever means, he was to be at Fort
21 Campbell on the lih of ApriL
22 Q. Obviously, you're aware that he did not report?
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A. That's correct.
Q. How much attention has this case gotten, and how great an impact has it had on your unit,
on good order, morale and discipline?
A. At Walter Reed, significantly; that's one of the other things I talked to him about, that we
were going to try and keep this as low-key as possible, because I was concerned about its impact on
junior soldiers, particularly the junior soldiers down at the Pentagon Clinic. When you have a senior
leader that is questioning the authority of the President of the United States, it is not a circumstance you
can tolerate; good order and discipline in the military is key for us to be able to operate.
Q. Sir, you've indicated you've been a Private - how crucial is it for junior soldiers to see
officers set an example of following orders, regardless of whether they agree with them?
A. It is essential to what we're doing. Tomorrow, I'll go back to Kuwait, and it is very
difficult to leave your family. When a junior soldier, who is not as experienced as someone like myself,
is going through the same feelings, if there's a mode and way of getting out of that deployment, some
mental justification for not getting on that plane, it has got to be very difficult, and that's not something
the Army can tolerate.
Q. Sir, you mentioned, in particular, you were concerned about the prospect that the accused
might be doing this to generate media attention?
A. Yes.
Q. Do you believe that's why he did it?
A. Absolutely.
Q. Do you believe that achieved its desired effect?
A. Yes.
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Q. Did you see him interviewed on CNN?
A. I did, I saw him - the one thing that I have seen was the interview that was done by - I
believe the gentleman's name was Anderson, on CNN.
Q. Anderson Cooper?
A. That's correct.
Q. Have you continued to follow whatever other media discussion of the case, or how it has
A. I have not followed it at all.
Q. Intentionally so?
A. Intentionally so.
Q. Are you aware of a particular adverse impact upon the unit, on 1I32d based on the
accused's failure to follow his orders to deploy?
A. I'm sorry?
Q. You mentioned, sir, spinning up a replacement?
A. Sure.
Q. Are you aware of the impact on 1/32d that he was not there to deploy when they
deployed as scheduled?
A. Yes, very much. We had to name another doctor, Major Dobson, and he had to deploy in
his place.
Q. Having been in command repeatedly, and having deployed in command, how crucial is it
to deploy with professionals on your staff prepared to enter into the theater?
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A. Completely crucial. Lieutenant Colonel Lakin was given a couple months' notice, had
ample opportunity to get to ranges, different medical training that we had available. I can't
overemphasize how important it is - a lot of medical professionals will diminish, in importance, things
like ranges. The one thing that I do, and did, when I was the commander at Walter Reed was to take the
doctors out and explain to them, '1 understand your willingness to self-sacrifice, and your willingness to
perhaps forgo these ranges, but it is important for you to understand that the young soldier sitting in the
seat of a vehicle with you, their family depends upon your ability to do these basic military skills.'
When you're deploying, particularly as a doctor, as a brigade surgeon, it is important that that
commander there have them there well in advance, that the soldiers get comfortable with them. That's
the primary person that a young solider in a brigade is going to go to when they are having a problem of
some sort - beyond the medical. The doc is the doc for these military units.
Q. How fundamental is it to being an officer in the Army that you follow orders?
A. We have no choice. There is nothing more fundamental to civil military relationships
than officers following orders.
TC: Can 1 have a moment, Your Honor?
MJ: Yes.
TC: [After conferring with co-counsel.] The government has no further questions.
MJ: Mr. Puckett?
CDC: Thank you, ma'am.
[END OF PAGE]
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1 CROSS-EXAMINATION
2 Questions by the civilian defense counsel:
3 Q. Sir, do you think it is important that when soldiers have problems that they use their
4 chain of command to solve those problems?
5 A. I do.
6 Q. Sir, you said that you weren't really familiar with Lieutenant Colonel Lakin, or his
7 record, when he first came to your attention. Did I also hear you say that you asked to see his record to
8 familiarize yourself with his background?
9 A. Yes, I did.
10 Q. Did you note there that he was a qualified flight surgeon, also qualified in occupational
11 medicine and family medicine?
12 A. Yes, sir.
13 Q. Is it unusual to have three separate certifications or qualifications - I'm not sure of the
14 right designation is it important, or is it - it is unusual to have those three in one doctor?
15 A. It is.
16 Q. Would you consider a doctor with those kinds of qualifications to be a valuable asset?
17 A. I would.
18 Q. Were you aware of his duty performance at the clinic under your command?
19 A. Not at that time, but I became familiar with it.
20 Q. Again, did he appear to be performing is duties as he was told?
21 A. Yes, sir, exemplary.
22 Q. You said exemplary?
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1 A. Yes.
2 Q. So, you wouldn't disagree with the notion that aside from this deviation of what is
3 expected of an officer, a doctor with Lieutenant Colonel Lakin's qualifications would be an asset to any
4 medical unit in the Army?
5 A. If you put aside what he has done here, yes.
6 Q. Yes, sir, that's what I said, aside from that.
7 A. Yes.
8 Q. Basically, what he brings to the fight, what he brings in terms of health care, medicine,
9 treating wounded on the battlefield, all those things are of value?
10 A. Absolutely.
11 CDC: No further questions, Your Honor.
12 MJ: Redirect?
13 TC: Briefly, ma'am.
14 REDIRECT EXAMINA nON
15 Questions by the trial counsel:
16 Q. So, you were asked questions about your opinion of his duty performance?
17 A. Yes.
18 Q. Would you agree that there's more that goes into being an officer than just how you
19 perform your duties at work?
20 A. Absolutely.
21 Q. Would your opinion of someone change if you heard they were a good duty performer,
22 and then they committed crimes like we're looking at in this case?
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A. Yes -let me put it simply. If I were a commander and he was being assigned to me, prior
to this happening, I would've taken him over probably anybody's credentials than I could've possibly
seen. Knowing that he's done what he's done, I would not accept him ---­
CDC: [Standing.]
MJ: Counsel ---­
TC: Yes, ma'am
Q. Sir, not getting into those specifics, we understand your answer.
A. Okay.
MJ: Mr. Puckett, recross?
CDC: No, Your Honor, thank you.
MJ: Questions from the members?
MEMBERS: [Negative responses.]
MJ: Apparently, there are none.
[The witness was permanently excused and withdrew from the courtroom.]
TC: Your Honor, the government calls Major Craig Dobson.
MAJOR CRAIG DOBSON, US Army, was called as a witness by the prosecution, was sworn and
testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Sir, could you please state your name and your current unit of assignment for the record?
A. I'm Major Craig Pritchard Dobson; I'm at Walter Reed, A Company.
Q. Sir, where were you previously assigned before coming to Walter Reed?
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A. I was in civilian training sponsored by the military for 3 years; I was at Children's
National Medical Center.
Q. Did you recently return from a deployment?
A. I did, yes.
Q. Who did you deploy with?
A. I deployed with the 1132 Cavalry Squadron ofthe 101
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Airborne.
Q. Were you the replacement that the unit received following Colonel Lakin's refusal to
deploy?
A. Yes, I was.
Q. Please describe for the court members how you became aware of this deployment, and
the actions that you took.
A. I believe it was April 6
th
, I received a call from the head ofthe Department of Pediatrics,
asking in could deploy on short-notice, potentially as early as the next Monday; there'd been an issue
with a doctor who couldn't go. After we discussed the mission, I said I would do it. We left it there
thought I was definitely leaving, prepared my family, and then I got an email saying, 'Well, hold on.
We're not sure, he may go.' I was sort of in limbo for about a week, and then the next Monday, I was
told it was definite.
Q. When you say you were told it was definite, what do you mean by that?
A. That I was told that I was definitely going to deploy with the unit.
Q. You mentioned preparing your family. Could you please tell the panel members about
your family, your spouse, your children?
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A. Sure. My wife is an active duty neonatologist she does intensive care for premature
babies; and my son is 2 :h -- that's my family.
Q. Had your wife recently returned from a deployment herself?
A. She had. She was in Afghanistan as well until November ofthe previous year, of2009.
Q. Were you, at the time, scheduled to deploy anytime soon?
A. I was not. I was told that there was maybe something on the horizon around the
December timeframe; this was in April, so around the December timeframe, I might end up deploying,
but it was not set in stone at alL
Q. So, your wife's dwell time after her deployment was going to sync up with you being
here?
A. They were trying to give us as much time together as a family, to be together before I
would have to deploy again.
Q. Did that happen?
A. It was shortened dramatically because of this.
Q. Sir, if you would, please discuss your preparations in order to comply with the orders to
go to Fort Campbell, and then how you deployed to join the unit.
A. Sure.
First, it was the administrative concerns; we cancelled a lot of patients, maneuver them
around and get other doctors to see them, because I had a full schedule for the next few weeks. We
cancelled the Captains Career Course reservation that my wife and I were both planning on attending.
Then there was a lot of outprocessing from Walter Reed, that sort ofthing - scrambling until I left to
join the unit.
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Q. Sir, when you got to Fort Campbell, was the unit still there?
A. Most ofthe unit had already left. There was a small contingent that was left behind. I
joined them, and then we all deployed together, sort of a trail party.
Q. When did you arrive at Fort Campbell?
A. The 26
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of April.
Q. They had left already?
A. They had, most of the unit.
Q. Did you then immediately deploy forward?
A. No. They had some other things, issuing of items - RFl, ClF, all those sorts ofthings ­
and that took about 2 weeks, and then I deployed.
Q. Those were the minimum requirements for you to go join the unit, as far as equipment?
A. Absolutely.
Q. Were you able to attend the pre-deployment courses that the unit had intended for their
surgeon?
A. No as is mandatory for a battalion-Ievel- squadron-level, in my case - surgeon, it is
mandatory that you attend TCMC tactical combat medical care course in San Antonio.
Q. Were you able to attend that?
A. No, [ was not.
Q. Please describe the situation when you got to the unit forward. Where were they, and
what were their medical operations?
A. The unit was on the Pakistan border in the Kunar Province, just north ofJalalibad, at a
small forward operating base. The previous unit had left a P A behind, since our medical wasn't in
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place; she was very happy to see me when I arrived. It is a very kinetic area of operations; we have a lot
of traumas coming through there, and we even had a mass-casualty situation on the second day I was
there.
Q. Your unit had a mass-casualty the second day you were there?
A. We did.
Q. How many casualties?
A. I believe that was 16 patients.
Q. I'm assuming you were still adjusting to the time zones, figuring out where everything
was. But did that impact how you were able to react?
A. I did. I'd never trained with the unit. The medics had to accept a new leader. As a team,
we hadn't been together at alL I certainly had not gone through the course that was intended to prepare
you for that.
Q. Given several weeks or months in country, were you able to smooth out any problems
like that?
A. Yes, by the end, everything was good for us.
Q. Are you confident you would've been able to make some progress, had you been given
more time before the deployment?
A. I think so.
Q. How long did you deploy for?
A. Six months.
Q. Please explain why you returned and who filled?
A. I had my pediatric cardiology boards in November, so I returned for that.
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Q. Are those very difficult to move?
A. They're impossible to move; they're only given every 2 years - on one date every 2
years.
Q. Was there a replacement for you to finish up the second half ofthe unit's deployment?
A. There was, yes, Lieutenant Colonel Spencer replaced me.
Q. Where is he right now?
A. He is currently at our base with the 1/32 Cav, the fOlWard operating base next to the
Pakistani border.
Q. Did 1I32d have frustration that you were able to tell as you coordinated with them to join
with them in fOlWard operations, based on the fact that they deployed without their surgeon?
A. They were upset, I'd say, but they were happy to have a replacement; they didn't take it
out on me.
Q. Of course not, sir, but they were happy to have you there?
A. They were happy to have me.
TC: No further questions ofthis witness, ma'am.
MJ: Mr. Puckett?
CDC: Thank you, Your Honor.
CROSS-EXAMINATION
Questions by the civilian defense counsel:
Q. How many years have you been in the Army?
A. I've been active for 10 years, and I was in Reserve status for 4 years before that.
Q. So, 14 years in total?
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A. Correct.
Q. Do I understand that this was your first wartime deployment?
A. No, I had been in Iraq in 2003 into 2004.
Q. Who were you with there?
A. The 82d Airborne.
Q. You mentioned earlier that you were aware that you were in a deployment queue, and
you guesstimated that you might have been joining a unit that would've deployed as early as December
of the same year this month?
A. Correct. Everyone is sort of in a deployment queue; there's no exact numbered order, it
is more of, if you haven't gone in a while, you should expect that at some point, you will go.
Q. I don't know the metrics on this, but not having deployed since 2003/2004, is that
considered "a while?"
A. It has been a while, yes.
Q. So you would've considered yourself ripe for assignment to a deployment?
A. At some point, I would expect that in the next year, I would've deployed.
Q. So it wasn't unanticipated, it was just earlier than you thought it might be?
A. Absolutely.
Q. Would you consider your 6-month deployment to have been professionally rewarding for
you? As a doctor, was it professionally rewarding for you?
A. As a doctor and officer, I'm always proud to do my duty, and it is rewarding to be part of
military health care.
Q. So, that experience was a good one for you?
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1 A. Yes, I would say that it is a good experience for me, regardless of my family.
2 Q. That's what I meant - you, personally and professionally.
3 A. Right.
4 Q. Unlike standard-length deployments, which are how long?
5 A. For a subspecialist like myself, 6 months is actually fairly standard.
6 Q. Routine?
7 A. [Affirmative response.] It depends - at the battalion level, the battalion commander has
8 the discretion to say, 'You have to stay for 12,' or he can say six; if you're a sub specialist, it generally
9 argues for 6. But the battalion commander does not have to do that.
10 Q. So, the 6-month deployment that you were on was also relatively routine, given the
11 standards for subspecialists?
12 A. [Affirmati ve response.]
13 CDC: Thank you.
14 No further questions.
15 MJ: Redirect?
16 TC: No, Your Honor.
17 MJ: Are there any questions from the members?
18 MEMBERS: [Negative responses.]
19 MJ: Apparentl y not.
20 [The witness was permanently excused and withdrew from the courtroom.]
21 TC: Your Honor, the government calls Major Nicole Dobson.
22
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MAJOR NICOLE DOBSON, US Army, was called as a witness by the prosecution, was sworn and
testified as follows:
DIRECT EXAMINATION
Questions by the assistant trial counsel:
Q. Could you please state your name and your current duty location?
A. I'm Nicole Roddick Dobson; I'm currently assigned at Uniformed Services University.
Questions by the trial counsel:
Q. I believe that your husband is also Major Dobson, who just testified?
A. That is correct, yes.
Q. If you could just introduce yourself to the panel, how long you've been in the Army and
what you do, please?
A. I'm Major Nicole Dobson; I've been on active duty for 10 years; I'm a neonatologist - I
do newborn intensive care. At the University, I spend about two-thirds of my time doing research and a
third clinical time, and a lot of teaching.
Q. Directing your attention, ma'am, to the fall of 2009 and spring of2010, were you
deployed in that time?
A. I was. I returned from deployment in November of '09.
Q. Where were you and your husband living at that time?
A. We were here in Washington, DC; actually, I was assigned at Walter Reed at the time.
Q. Was your husband scheduled to deploy at that time?
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A. When I returned home, he was not. There was some talk, I think, that in early 2010, he
would be replacing another physician from our unit who'd deployed; I don't remember the exact
timeframe, but we were told it would be 6-8 months in the future.
Q. Were you planning on accomplishing any personal or professional things in that time,
now that you were back with your husband?
A. Well, we were hoping to expand our family; I'd just returned from deployment, and we
obviously wanted to reconnect with our young son and reestablish ourselves as a couple.
Q. How about any courses or professional responsibilities?
A. We had both actually signed up to attend the Captains Career Course in May of '09, with
the hope that we would both go together to further our Army careers.
Q. What's the beneficial impact on your family for you to both go together? Obviously, you
have a young son.
A. We were planning to take him with us and have a family member go with us to help take
care of him while we were there.
Q. Were you able to do that?
A. We were not. My husband deployed shortly before we were supposed to go, and I just
decided, because of the disruption to our family, to delay attending the course at that point.
Q. Have you since gone, rna' am?
A. I have. Actually, I just returned this week.
Q. How about your husband?
A. We did. We ended up going together.
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Q. Could you please describe, ma'am, the impact upon your family of the sudden
deployment of your husband to Afghanistan?
A. It was certainly difficult. As a dual active-duty military family with a young child, we
obviously need to be prepared for these things, and we were fortunate to have a strong family support
network. Two weeks' notice was very difficult to prepare ourselves, especially with the fact that I'd
only been home for 6 months, we felt like we'd finally reconnected as a family. To have him suddenly
have to leave was very difficult.
Q. In particular, were there any awards or ceremonies he wasn't able to attend that would've
been meaningful to you?
A. There was. I had been home from deployment for about 3 months when I found out I'd
been awarded the Bronze Star for my deployment service. For various reasons, we had delayed it being
presented until early-May, when both our families could be in town for it. My husband left, I think, a
week before that ceremony.
TC: No further questions.
CDC: No questions, Your Honor.
MJ: Any questions from the members?
MEMBERS: [Negative responses.]
MJ: Apparently not.
[The witness was permanently excused and withdrew from the courtroom.]
TC: Ma' am, at this time, the government has some additional exhibits that are already
admitted that we'd like to publish to the panel; I believe we might need to make copies. I think we have
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some additional audio to play. It may be an appropriate time for a brief comfort break, so that we can
put that evidence in.
MJ: 1545, is that sufficient, or do you need a longer recess?
TC: 1545 should be sufficient, Your Honor.
MJ: Members of the panel, we're going to recess the court until 1545.
[The members withdrew from the courtroom.]
Let the record reflect the members have departed.
Is there anything we need to address before we recess the court?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: Court is in recess.
[The court-martial recessed at 1537, 15 December 2010.]
[END OF PAGE1
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1 [The session was called to order at 1602, 15 December 2010.]
2 MJ: This Article 39(a) session is called to order.
3 Let the record reflect that all parties present before the recess are again present in court;
4 the members are absent.
S Is there anything we need to address before we call the members?
6 TC: No, ma'am.
7 CDC: No, ma'am.
8 MJ: Please call the members.
9 [END OF PAGE]
10
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(The members returned to the courtroom.]
MJ: Let the record reflect the members have returned.
Captain O'Beirne?
TC: Yes, Your Honor.
The government is retrieving Prosecution Exhibits 23, 24 and 25 [for ID] from the court
reporter. Your Honor, at this time, the government offers what has previously been marked as
Prosecution Exhibits 24, 25 and 23 into evidence; Exhibit 24 is a current printout/screenshot from the
news section of Safeguardourconstitution.com; Exhibit 25 is a current screenshot, printed immediately
before this recess, of the Y ouTube page on which the video previously viewed is posted; and
Prosecution Exhibit 23 is an audio CD containing an interview given by the accused on the Barry Farber
radio show on 3 September 2010.
The government offers all three into evidence at this time.
MJ: Any objections?
CDC: No, Your Honor.
TC: In addition, Your Honor, the government requests permission to publish a section of
Prosecution Exhibit 23 to the panel at this time.
MJ: Prosecution Exhibit 24 for identification is admitted; Prosecution Exhibit 25 for
identification is admitted; and Prosecution Exhibit 23 for identification is admitted.
You may proceed to publish.
[PE 23 was published to the court.]
TC: Your Honor, the government rests.
MJ: Mr. Puckett, is the defense ready to proceed?
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1 CDC: We are, Your Honor.
2 Your Honor, the defense calls Colonel Monte Willoughby.
3 COLONEL MONTE WILLOUGHBY, US Army, was called as a witness by the defense, was
4 sworn and testified as follows:
5 DIRECT EXAMINATION
6 Questions by the trial counsel:
7 Q. Please state your full name, rank and unit of assignment for the record.
8 A. I am Colonel Monte Willoughby, and I'm currently a student at the United States Army
9 War College, Carlisle, Pennsylvania.
10 TC: Thank you.
11 Questions by the civilian defense counsel:
12 Q. Sir, give us a brief overview of your Army career - when it started, some of the jobs
13 you've had, some of the training you've had.
14 A. I first entered the service in 1986 I started with basic training for the National Guard. I
15 got into ROTC and was commissioned in 1988, and came on active duty in 1989; I've been in the active
16 Army since then. I've served with various units. I'm an armor officer by trade - armored cavalry
17 platoon leader, company commander, field grade officer, S3, XO, squadron commander, and recently
18 before moving to the War College, I was the Rear Division Commander for the 4th Infantry Division.
19 Q. Do you know what your follow-on assignment after the War College will be?
20 A. Yes, I've been selected to take command of Task Force Sinai on the Sinai Peninsula.
21 Q. What's the mission there?
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1 A. It is part of the multi-national force of for the peace treaty between Israel and Egypt, and
2 I'll command the US forces; the US commander is also dual-hatted as the Chief of Staff for the multi­
3 national force.
4 Q. Sir, are you thinking of making the Army a career?
5 A. I'd think that I've already made the Army a career.
6 Q. Sir, how do you know Lieutenant Colonel Lakin?
7 A. I first met Terry Lakin in late-2003 before a deployment; we were at 3/25 Cav, 25
th
8 Infantry Division in Hawaii; he was our PROFIS doctor and came to the squadron just a few months
9 prior to our deployment as a last part of our train-up.
10 Q. What is a PROFIS doctor?
11 A. . It is a doctor that is assigned usually from a military medical command to fulfill a unit's
12 need for a doctor for a deployment.
13 Q. Was this an aviation unit?
14 A. At the time, it was a light cavalry squadron for the division cav unit, and at that time,
15 both ground scouts and air troops were in the same squadron.
16 Q. What was his billet description? What was his job?
17 A. He was one of our flight surgeon, specifically coded rank-wise - I think it could've been
18 a captain or major, because we had another captain who was also a flight surgeon, and we also had a
19 physician's assistant that was not coded as a flight surgeon position.
20 Q. What was his rank at the time?
21 A. He was a major.
22 Q. How would you describe his duties? What were his duties?
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1 A. A couple of different duties - one is to be the flight surgeon for the squadron, taking care
2 of the medical needs of the pilots, and we had ground scouts and other soldiers, so he also saw them as
3 well; that's the reason you have two flight surgeons in the squadron, so when you do split-base
4 operations, you could have one flight surgeon in both places.
5 Q. Is that common?
6 A. In a deployment, it is often common.
7 Q. What was your job at the time?
8 A. I was the squadron XO.
9 Q. Did you deploy?
10 A. I did.
11 Q. With that unit?
12 A. I did, yes.
13 Q. Did Lieutenant Colonel Lakin deploy with you?
14 A. Yes, he did.
15 Q. Describe his duties on the deployment.
16 A. He was the lead flight surgeon, since he was the senior medical individual, the lead
17 medical officer for our squadron. We also had an officer that was in charge of the medical piece, the
18 medical service officer, but he was the lead doctor for the squadron.
19 Q. Typically, in your experience during that deployment or other deployments, what does
20 the flight surgeon do during a deployment, or some of the things they're tasked to do?
21 A. They'll see soldiers that are injured; specifically, in the aviation side, when a pilot gets
22 injured or has any type of illness, they see the flight surgeon and the flight surgeon can clear them to fly
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and continue their mission, and prescribe medicine for them - some medicine, you can fly under, some
medicine you can't. Some illnesses, you can fly, or there may be limited duty stuff that they can do.
Q. Do you recall the dates ofthe deployment?
A. In 2004, it would've been April; the squadron advance party was in March, the squadron
finally closed in May, because of flying the aircraft in C5s and C17s until March/April of2005.
Q. So, 2004 into the spring of2005?
A. Yes.
Q. Was he there with you the entire deployment?
A. Yes, he was.
Q. Did you have any opportunity to observe his performance of duty?
A. I did. As the squadron XO, even though we're the same rank, Terry essentially worked
directly for me. The untimely death, unfortunate death, of our squadron commander, I assumed
command of the squadron for about 3 months from the end of November through February, and Terry
worked directly for me.
Q. Would you consider that event disruptive within the unit?
A. Yes, it was.
Q. Was Lieutenant Colonel Lakin helpful during that time?
A. He was.
Q. In what ways?
A. First of all, having a senior field grade officer, along with the two other majors who were
in the squadron the individual who came to be the squadron XO and the squadron S3, the three of us,
Terry, another major, had a lot of things to do; the squadron was split over a large chunk of ground o v ~ r ,
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at the time, western Afghanistan. So, even though it was a little bit out of his tactical skills, the
leadership that Terry provided assisted the squadron.
Q. How does a doctor provide leadership in a squadron?
A. Like I said, we had a split base, so we had the squadron separated, and the area that we
lived on, a large, diverse population, some other units there, different medical needs, Afghan local
nationals that worked on our installation. Sometimes, they'd get sick or might get injured. We had the
Afghan national army that lived with us - no medical care, so keeping the unit together and going in the
right direction, health care was a huge chunk of that.
Q. Did he do any duties in addition to his required duties that you found interesting?
A. We had our own - we made our own water, had our own ROPU - reverse osmosis unit
to purify water; all the health services; we were cooking our own meals we had a little bit of fresh stuff
coming in, a lot of it was the unitized rations, but one ofthe things that Terry did was do inspections on
all our workers for hepatitis, things like that. At one point, we had over a hundred workers from the
Afghan national army that we interfaced with - checkpoints and guard points, quite frequently, we'd
check them, make sure that they were safe, and also making sure that health areas, you know, the water
was good, safe to drink. We had lived mostly in older buildings; some ofthem did have asbestos, we
were pretty concerned about that. At his urging, we had sealed those off after we figured out what they
were. So, Terry it was his direct finding of that that led us to stop using that building.
Q. For the period ofthat deployment, and for the entire period he was with the squadron,
how would you rate his performance of duty as a medical officer?
A. Exceptional. 1'd rate Terry - our team ofmedical professionals, the other physician, the
physician's assistant, and the medics - they did a pretty large training program with all our medics to
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1 increase their capabilities and skills. I'm not talking about reading stuff out of a manual; I'm talking
2 about hands-on learning-type stuff.
3 Q. Did he ever do anything that you considered above and beyond the call of duty?
4 A. Because of the size ofthe squadron and size of the area, we normally sent our ground
5 scout patrols out on numerous day patrols, when they weren't living out at some ofthe far-flung bases.
6 Generally, a platoon would live at one of the far outposts, one ofthe forward FOBs, and another platoon
7 would go on an extended patrol, a 5, 6 or 7-day patrol; Terry routinely sought to get out to make sure the
8 ground scouts were taken care of, and if there was a need, he was the first one to volunteer - although
9 not the best choice, and he didn't always get selected, but the first one to volunteer and say, '1 want to go
10 out and be with the ground scouts.' We had some forward FARPs - forward air refueling points - that
11 we'd established; soldiers have to maintain those, and it is generally a 2 or 3-day operation to do that,
12 because we'd put them out for a certain operation, leave them for an extended period oftime, and then
13 bring them back.
14 Q. Was he required to do those things?
15 A. He was required, to the effect that they had to be put out, and at times, we put physicians
16 with them, either the P A and senior medic, or a surgeon and senior medic, so in that case, yes, he was.
17 Q. But he regularly volunteered to be that guy?
18 A. He did.
19 Q. Do you consider that important?
20 A. I do.
21 Q. So, during that period of time, how would you rate his overall performance of duty, both
22 as a soldier and medical officer?
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A. Absolutely exceptional, outstanding.
Q. That Dr. Terry Lakin that you knew, would you serve with him again?
A. Yes, I would.
Q. Anything else you'd like to share that we've missed about your impressions or opinion of
Dr. Lakin?
A. No, I don't think so. It was a pretty good team they had with the whole medical team.
Q. Led by him?
A. Yes.
CDC: No further questions.
CROSS-EXAMINATION
Questions by the trial counsel:
Q. Sir, you testified that Colonel Lakin joined your unit several months before the
deployment?
A. I think it was about November or December, just prior to our advance party taking off in
February.
Q. He got there in time to take part in some of the pre-deployment training?
A. There was some pre-deployment training. If I remember right, we had to do some live
fires, some different qualification live fires that had been changed with the aircraft, and ground convoy
operations.
Q. You were the XO at the time?
A. I was.
Q. You were a large part of the planning for the pre-deployment training?
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A. I was.
Q. That was specifically geared towards preparing the unit, so when it hit the ground, it was
effective?
A. Yes.
Q. I'm sure that training did make it so you were effective?
A. Yes.
Q. You were asked questions - obviously, tragically, your squadron commander was killed?
A. That was later that following year November 2004.
Q. Obviously, that caused tremendous disruption and consternation within the unit?
A. Yes.
Q. Was it the systems that you had in place with the staff, how they worked together and did
their responsibilities, that allowed you to recover from that and continue to complete the mission?
A. Yes.
Q. You testified that Colonel Lakin performed his duties very well when he was deployed?
A. Yes.
Q. You're basing that on the fact that he did what you told him to do?
A. Yeah - when he fell in on the team, with the systems that we'd helped establish during
the pre-deployment training, and when we first occupied an area at Kandahar, before we moved after a
few months, when we shifted out west.
Q. Understood, sir. Literally, he was a good duty performer, and he did what his duties
were?
A. Yes.
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Q. You never gave him an order and he said, 'No, I'm not doing that.'
A. Right, that's correct.
Q. Your opinion of his duty performance would've changed had he looked at you and said,
'No, I'm not going to do what you're telling me to do.'
A. Certainly.
Q. Especially if it had to do with the absolute core function of what he was there to do?
A. Yes.
Q. Are you aware of what he has been charged with in this case?
A. I am.
Q. Are you aware that he was just found guilty of missing movement?
A. I was not aware of that.
Q. The panel just found him guilty of missing movement of a flight to take him to Fort
Campbell to deploy with his unit. In addition, he pled guilty to refusing two orders to go see his brigade
commander to discuss his deployment, and disobeying his TCS orders. You'd agree that that's serious?
A. Yes.
Q. Unacceptable from ---­
CDC: Objection, Your Honor.
MJ: Sustained.
Q. How crucial was it for you during that deployment that the senior leaders, like Colonel
Lakin, did follow orders?
A. It is absolutely critical for leaders at our level within reason, as long as it is not an
unlawful order, or an immoral order, for them to follow the orders.
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1 Q. Even if they disagree with it?
2 A. At a point, you disagree, and the disagreement may not center on the order, but maybe
3 how you're going to implement that order, plan or course of action, yes.
4 Q. Once you understand it is an order, even if you disagree, it is a legal order and you move
5 out?
6 A. Yes.
7 Q. And you execute it?
8 A. Yes.
9 TC: Thank you, sir.
10 No further questions.
11 MJ: Redirect?
12 CDC: No, thank you, Your Honor.
13 MJ: Questions from the members?
14 MEMBERS: [Negative responses.]
15 MJ: Apparently none.
16 [The witness was permanently excused and withdrew from the courtroom.]
17 CDC: Your Honor, the defense calls Mr. Timothy Mayhak.
18 [END OF PAGE]
19
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1 TIMOTHY MA YHAK, civilian, was called as a witness by the defense, was sworn and testified as
2 follows:
3 DIRECT EXAMINATION
4 Questions by the civilian defense counsel:
5 Q. State your full name, sir.
6 A. Timothy Paul Mayhak.
7 Q. Where do you live, Mr. Mayhak?
8 A. I currently reside in North Pole, Alaska; it is very near Fairbanks, Alaska.
9 Q. You're serious?
10 A. lam.
11 Q. That's where I used to send my letters to Santa.
12 A. That's true, and the Post Office will put that North Pole postmark on there for you.
13 Q. Sir, have you ever served in the military?
14 A. I have.
15 Q. Which branch?
16 A. I served both in the Navy and the United States Army.
17 Q. Tell us about your Naval service.
18 A. I went in the Navy in mid-summer 1975 for basic training; I went to a Class A school, an
19 AIT -type schooL I served aboard the USS Midway, forward deployed to Yokosuka, Japan. I served
20 aboard the USS Coral Sea - about 6 years total time in the United States Navy.
21 Q. What was your rate in the Navy?
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A. I was an aviation boatswain mate; I worked on the flight deck and in primary flight
control.
Q. When did you leave the Navy? What year?
A. That would've been 1981.
Q. Why did you leave the Navy?
A. I got a direct appointment from the Navy to the Army for warrant officer flight training.
Q. Tell us about that experience. How did you qualify for that?
A. A normal screening process - aviation testing, physical exams, intelligence testing, flight
aptitude testing. I qualified for flight school and was accepted in 1981 to attend Army flight schooL
Q. That's at Fort Rucker?
A. Correct.
Q. When did you start at Fort Rucker?
A. August of 198] .
Q. How long was that course of instruction?
A. Twelve months.
Q. Did you eventually become a qualified pilot?
A. I did.
Q. In what aircraft?
A. Initially, a UH-I, Bell "Huey" helicopter, Warrant Officer One Army aviator designation.
Q. Did you transition to other aircraft in your career?
A. Not until the second portion of my career. I flew the UH-I and the OH-58A/C through
1995, at which time I retired and went on the retired rolls with a little over 20 years of active duty.
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Q. You retired from active duty in 1995?
A. I did.
Q. What'd you do then?
A. I attended a trade school and worked at a Harley-Davidson dealership. Motorcycles are
one of my passions, so I endeavored to work on Harley-Davidsons. I changed careers a little bit, started
some schooling - I started nursing school, and then went to work for Rocky Mountain Helicopters and
flew civilian helicopters, emergency medical services.
Q. Medevac-type flights?
A. Correct.
Q. How long did you fly helicopters in a medevac role?
A. The civilian portion, I flew medevac for about a year. I'd flown medevac before in the
Army in Hawaii, the 68
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Medical Detachment, so I had prior experience in medical evaluation.
Q. Did you later return to active duty at any time?
A. I did. In 2001, the Retired Aviator Recall Program came about, and I returned to active
duty in 2001.
Q. Where did you report to duty at?
A. Fort Rucker, Alabama as a flight instructor.
Q. How long did you continue as a flight instructor?
A. I worked at Fort Rucker, Alabama for approximately 2 Yz years, at which time my recall
period was over, and they asked me to remain on active duty.
Q. Did you agree?
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1 A. I did. I enjoyed what I was doing, and I enjoyed returning to the active duty rolls. They
2 offered me the chance to fly the Kiowa "Warrior." I took that. I transitioned to the OH-58D/R Kiowa
3 Warrior.
4 Q. What's the mission of that aircraft?
5 A. It is a light attack reconnaissance aircraft.
6 Q. It's armed?
7 A. Correct.
8 Q. What was your rank at that time?
9 A. I retired in 1995 as a Chief Warrant Officer Three, and again returned as a Chief Warrant
10 Officer Three, which I remained until I departed later on.
11 Q. So you are currently a CW3 (Retired)?
12 A. Correct.
13 Q. Sir, do you know Lieutenant Colonel Lakin?
14 A. I do.
15 Q. How do you know him?
16 A. I met Colonel Lakin in Afghanistan.
17 Q. Under what conditions? How did you cross paths with him?
18 A. My transition to the OH-58D/R assigned me to the 3/25 Cavalry, who were, at that time,
19 forward-deployed to Afghanistan. I joined the unit in Afghanistan in August of '04. At that time, all
20 aviators have to go through a physical exam prior to flying when they report to their unit, and Colonel
21 Lakin was the flight surgeon at that time, and that was my initial meeting.
22 Q. Was this the same unit that Colonel Willoughby was in?
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1 A. Correct, yes.
2 Q. So, what was your duty with that organization? What was your job?
3 A. I was initially assigned to 3125 Cavalry as a tactical operations officer; basically, aviation.
4 As I came into the unit and got clearance to fly, I began flying with the unit, getting checked out, joining
5 the mission. My extracurricular activities were tactical operations, at which time I became designated as
6 a battle captain for 3125 Cavalry in the tactical operations center.
7 Q. So, you assumed greater and greater responsibilities?
8 A. Correct.
9 Q. How is it that you came to become acquainted with Lieutenant Colonel Lakin? How was
10 it that you two interacted, ifhe is a doctor and you're a pilot?
11 A. Doctors and aviators, or flight surgeons and aviators, often times have a closer
12 relationship, because the doctors do need to monitor their aviators. They talk to them frequently, and in
13 that course of action, Colonel Lakin and I became good friends. We came to find out we were both from
14 Colorado. We had common interests. We grew up very close to each other - he in Greeley and me in
15 Fort Collins. As we discussed my flight activities and my physical wellbeing, we also discussed
16 personal items and became friends.
17 Q. Are you close in age?
18 A. I don't recall. I think I'm a couple years older than he is.
19 Q. You found common ground with him?
20 A. Correct.
21 Q. So your relationship is both personal and professional?
22 A. Correct.
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Q. You mentioned the nature of the relationship between pilots and the flight surgeons.
Were you in a position to evaluate him as a flight surgeon, against other flight surgeons you'd seen?
A. Absolutely. I've had to deal with flight surgeons throughout my aviation career in the
Army. Colonel Lakin is easily one of the top flight surgeons that I've had to deal with.
Q. Why?
A. His demeanor, his approach - I've often come across flight surgeons that were very
pushy and pointed, short-sighted, narrow view of aviation, very strict. Not that he wasn't strict, but he
had a manner or demeanor that would allow you to comply in an easy way. He was never forceful,
although he would emphasize that these were the regulations and they needed to be followed. As
aviators, we couldn't perform our jobs properly if we weren't physically fit and physically capable to
fly.
Q. Would you say he had a good bedside manner?
A. Oh, sure.
Q. Did he also have a reputation in the squadron for being a good doctor?
A. He really had more of a reputation as a good doctor. Often times, he was - he was an
osteopath, so he could manipulate, you know.
Q. Tell us what that means.
A. He could massage - he had his manipulation table that he brought with him to
Afghanistan, and he'd bring that table out in the evenings during his personal time, or for lack of a better
term, "off-time," while we were forward-deployed. He'd give manipulations and massages to aviators.
We were flying 8 or 9 hours a day, day/night, night vision goggles - it was very stressful, a lot of flight
hours under stressful conditions. Him coming out and manipulating us, speaking to us, just talking to us
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as he massaged our muscles and eased our stress, it made it easier for us to fly our missions, it made it
better for us.
Q. So you're talking about spinal alignments, joints, things like that that might be painful or
cramped?
A. Correct.
Q. Is a flight surgeon also supposed to - although maybe not as a psychiatrist, but also
supposed to evaluate the mental status ofthe pilots as well?
A. Oh, absolutely. In my experience as a senior instructor pilot and squadron
standardization officer, I had the opportunity to work with all the aviators of the squadron, and all the
troops of the squadron. It was my job to evaluate them in an elementary level, see if they were actually
capable of flying, what their state of mind was. Often times, in concert with flight surgeons,
standardization officers would consult them and ask them to talk to people that may have higher stress
or trouble at home. Terry was good at that. As a tactical operations officer, I worked very closely with
that assigned standardization officer on the mental and physical wellbeing of all the aviators.
Q. So, would it be fair to say that he added additional value, beyond what he was there to
do?
A. In many arenas. He made himself - often times, he would come by the squadron air
station, where he was assigned I lived there in one of the rooms as well- often times, Colonel Lakin
would come by and we'd go to dinner together, just to talk. He sometimes would ask me about different
aviators, "What about that guy? You've flown with him. How's he doing?" His manipulation I know
a lot ofthe pilots went in and got manipulated, and it relieved a lot of physical stress on their bodies,
their muscles.
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1 Q. Did he demonstrate compassion?
2 A. Absolutely.
3 Q. Did you ever see him practice the profession ofmedicine? Did you ever see him work on
4 anyone, or perform surgery, anything like that?
5 A. Again, I worked in the TOC, and I lived very close by where the squadron aid station
6 was. The everyday coming and going of sick call for the squadron soldiers, Colonel Lakin was there for
7 hours, available for soldiers for things from sniffles to twisted ankles, whatever the case may be. Local
8 Afghanis were brought into the aid station, and he treated various injuries - I remember particularly a
9 little girl that had been burned that he treated, and we worked up a civilian medevac for that little girl.
10 Q. Did she survive?
11 A. I believe she did, yes.
12 Q. Was there any battle-related trauma, or anything that he had to do with?
13 A. There was. We had some unexploded ordnance that local civilians had run into, and
14 Colonel Lakin treated them. We had a Special Forces unit assigned to Shindad, that local area there.
15 One ofthose Americans was brought in one night, wounded, and I was the battle captain that evening,
16 and we were setting up a medevac to get that soldier to higher care a traumatic, serious injury. The
17 medevac was calling me for blood pressure and vital signs - I had a little bit of a medical background,
18 so I knew what they were talking about, and I was querying the squadron aid station over the radio. I
19 wasn't getting the information I needed, so I walked over to the squadron aid station, and that Special
20 Forces soldier was there on the table, blood everywhere. Colonel Lakin, blood all over his hands we
21 lost that soldier. The 18D's and Colonel Lakin did everything they could for that soldier.
22 Q. You witnessed that yourself?
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A. I did.
CDC: Thank you, sir.
I have no further questions.
MJ: Trial counsel?
CROSS-EXAMINATION
Questions by the trial counsel:
Q. You're friends with the accused from a prior deployment, you mentioned?
A. Correct.
Q. You've remained good friends with him?
A. We've communicated over emails over the last couple years.
Q. Have you communicated with him recently?
A. Recently, in light of the trial and being on the witness list, I have. Most recently, we
spoke briefly over the last couple years; I asked him for a letter of recommendation at one point - I
believe that was in the 06/07 timeframe.
Q. You testified that you observed his duty performance when you were in Afghanistan?
A. Yes.
Q. And that his duty performance was very good?
A. Absolutely.
Q. Obviously, this is a very plain question, but it was good because he was doing his duty.
A. Of course, he was doing his duty, but he did more than his duty.
Q. Fair enough, but had he done less than his duty, then you wouldn't have thought his duty
performance was good.
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1 A. Probably.
2 Q. Had he blown off the squadron commander and said, 'No, I'm not obeying your orders,'
3 or had he not shown up to work, had he not performed the duties of a squadron surgeon, he would not
4 have had good duty performance, would he?
5 A. He wouldn't have done that, unless he had a good reason for it.
6 Q. Sir, my question to you is, did he do that at the time?
7 A. No, he didn't.
8 Q. That's why your opinion is that he was a good duty performer?
9 A. Correct.
10 Q. You mentioned that you were a standardization officer for the squadron?
11 A. Correct.
12 Q. Safety and standardization in the aviation community are paramount.
13 A. It is actually two separate people, but they run hand-in-hand, yes.
14 Q. I didn't mean to suggest you were doing both; I'm saying that the principles of, and the
15 doctrines of, safety and standardization are paramount in the aviation community?
16 A. Correct.
17 Q. There are rules about aircraft limitations, safety, inspections, maintenance and health that
18 have to be followed or people die?
19 A. Yes.
20 Q. Soldiers can't go around deciding, 'I disagree with this regulation. I disagree with how
21 the standards officer is running things. I'm going to do my own thing.'
22 A. For the most part, yes.
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Q. Because when soldiers do that, there could be terrible accidents and people could die.
A. I've known people in the aviation community that have actually queried procedures and
had them changed to the better, so there are times when yes, in aviation, whether it be safety or
standardization, or at the pilot or maintenance level, that procedures do need to be questioned and have
been questioned. There are actually forms to fill out to submit that query to rectify the situation.
Q. Are you finished with that answer about safety and standardization?
A. Yes.
Q. When you were the standardization officer, if you set policies and soldiers just disobeyed
them, saying, 'We disagree with them; that would've been acceptable to you, because they would've
been questioning the regulations, they would've been thinking independently, and that would've been
fine when you were the standards officer?
A. Not always, no.
Q. Not always.
A. I had many discussions with aviators on procedures, and having to write doctrine for the
squadron, based on current regulations, we changed things often.
Q. "We."
A. Yes.
Q. At the squadron level?
A. Sure, but it begins with one person.
Q. Your testimony on direct is that there were regulations that needed to be followed, and he
assisted the unit in following those regulations. Is that accurate, sir?
A. Say that again, please.
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Q. You testified on direct that you were describing his duties, and you said there were
regulations that needed to be followed, and he assisted, examining pilots, etcetera, so that those
regulations were followed.
A. Correct.
Q. So that soldiers could fly missions safely?
A. Correct.
Q. You were talking about questioning orders when you were a battle captain at nighttime,
and there were troops in contact, and the commander told you, 'We're going to send these assets over
here to go assist,' if you said, '1 disagree with you, I don't think that's a good idea. I'm not going to do
that,' that would've been unacceptable, right?
A. Yes.
Q. Are you aware of what the accused has been convicted of today?
A. Say again?
Q. Are you aware of what the accused has been convicted of today?
A. I'm not completely.
Q. The panel just convicted him of missing movement, in violation of Article 87, for
refusing to board the plane to go deploy with his unit at Fort Campbell. Were you aware of that?
A. No, I am now, though, yes.
Q. You were not told that in your conversations with the defense?
A. No. We've been sequestered in the other room, so we really - I haven't been kept up to
date on the proceedings.
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1 Q. Prior to the contested proceedings, he pled guilty to failing to go to his brigade
2 commander's office twice, and refusing to deploy. Were you aware of that?
3 A. Yes.
4 Q. What are your thoughts about those crimes?
5 CDC: Objection, Your Honor.
6 TC: It goes to bias, Your Honor. The government believes we have reason for proper ---­
~ ~ ) c." { ( s)
7 CDC: Outside the scope of 100 . .
8 MJ: No, that's overruled.
9 TC: Bias is always relevant for witness testimony, Your Honor.
10 MJ: Proceed.
11 Q. What is your opinion about the crimes that he's committed today?
12 A. My opinion ofthe crimes?
13 Q. Yes.
14 CDC: Objection, Your Honor, relevance.
15 TC: Goes to the bias of his testimony, Your Honor, as far as following responsibilities.
16 MJ: Overruled.
17 A. My opinion on the crimes?
18 Q. Yes.
19 A. If the court has convicted him, I don't see where my opinion really has any bearing. I'm
20 not familiar with exactly all of the details.
21 Q. So when we spoke before, you told me you thought he was being patriotic by committing
22 the acts that he did. Is that not true?
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A. I don't know if I used that. I think I said that there were times - when you and I spoke on
the phone?
Q. Yes.
A. I believe it was you.
Q. Yes, it was.
A. I said that orders needed to be followed, but there were times that they should be
questioned, or they may be questioned.
Q. Sir, your exact words were, "His crimes were an act of patriotism." You told me, you
said that, did you not - on the speakerphone, to myself and my two co-counsel.
A. I don't recalL I may have said that, yes.
Q. And you believe that the President's eligibility to be president is an open question.
CDC: Objection, relevance.
TC: Goes to bias and sympathy with the accused's crimes, Your Honor - the reasonableness
of his opinion.
MJ: Overruled.
A. Say that again, please.
Q. You believe that the President's eligibility to be president is an open question.
A. [Pause. ] Yes, I do.
Q. And you believe that until that question ---­
A. Can I explain that?
[Applause from several persons in the gallery.]
MJ: Members of the gallery -­
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TC: Sir, you can answer my question; you'll have the opportunity to clarify any answers
you'd like on redirect examination.
Q. My question to you is - you believe the President has a responsibility to prove to Army
officers that he is the president, before they have the responsibility to follow orders. Isn't that true?
A. Restate that, please.
Q. You believe that the President has a responsibility to prove that he is the president before
officers, like the accused, have a responsibility to obey any order they receive.
A. I believe that as the Commander-in-Chief, the President should show that he is an eligible
Commander-in-Chief.
Q. Before officers have a responsibility to obey any orders.
A. [Pause.] I think those officers that are on active duty should be compelled to question
when they feel that lawful orders have not been issued.
Q. Sir, I'll ask you one last time. You believe that there are no lawful orders in the Army
right now because the President has not proven that he is the President. Yes or no?
A. I can't say - I don't know.
Q. In fact, your concern about the President's eligibility was one of the reasons that you got
out of the Army in January 2009, isn't that correct?
A. That's not true.
Q. We asked you on Friday, was that a factor when you got out of the Army in January
2009, and your answer was, it was a factor.
A. I said it may have some bearing, but that was not the main reason, no.
TC: No further questions, Your Honor.
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MJ: Redirect?
CDC: Thank you, Your Honor.
REDIRECT EXAMINATION
Questions by the civilian defense counsel:
Q. Mr. Mayhak, Captain O'Beirne promised you an opportunity, when I stood back up here
again, that you'd be able to explain what you meant by what you said earlier. Would you do that for us?
A. I believe that there is an ultimate authority in the military. It is an unwritten rule, where it
seems like military people have always understood that the Commander-in-Chief issues the orders. He
may issue those orders through someone, but ultimately, there has to be a stopping point for issues to be
ordered to the military.
Q. What do you mean by a stopping point?
A. They have to originate from somewhere.
Q. Or a starting point, maybe?
A. A starting point, okay.
That starting point is the Commander-in-Chief. I don't know if the Commander-in-Chief
is eligible or not. I don't think anybody in this room can answer that question, because things have not
been revealed. I think answers - I think that the military and the American people deserve to know
something about their President. Whether that has a bearing here, I think it does. I think military
officers, by virtue of being Americans, and having the ability to properly question their chain of
command on the validity of orders, I think that is important. I think Army officers are compelled to
decipher and look down the road, and if they obey the simple order, and they do something, it is easier
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to question the simple order than it is to question a more difficult order, if you're downrange or in
combat.
A simple order can be questioned or queried through your chain of command to prevent a
more complex situation later on, if you're downrange or in combat.
Q. So, based on that belief in that proposition, do you think that your chain of command
should answer your questions?
A. Absolutely. I believe that when an officer queries his higher headquarters, they owe him
- that soldier, that officer - an answer to their query, sufficient for them to understand whether to
comply or not comply with orders.
Q. Do you feel that that states your beliefs sufficiently, sir, what you've just said?
A. Pretty closely, yes.
CDC: Thank you, sir.
No further questions.
TC: No questions, Your Honor.
MJ: Questions from the members?
MEMBERS: [Negative responses.]
[The witness was permanently excused and withdrew from the courtroom.]
CDC: Your Honor, can we have maybe a 5-minute comfort break?
MJ: Why don't we recess until 5 minutes to 1700.
Members of the panel, we'll be in recess.
[The members withdrew from the courtroom.]
Let the record reflect the members have departed.
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1 Is there anything we need to address?
2 CDC: No, Your Honor.
3 TC: No, ma'am.
4 MJ: Court is in recess.
5 [The court-martial recessed at 1650, 15 December 2010.]
6 [END OF PAGE]
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1 [The session was called to order at 1709, 15 December 2010.]
2 MJ: This Article 39(a) session is called to order.
3 Let the record reflect all parties present when the court last recessed are again present in
4 court.
S Is there anything we need to discuss before we begin?
6 TC: No, Your Honor.
7 CDC: No, Your Honor.
8 MJ: Please call the members.
9 [END OF PAGE]
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[The members returned to the courtroom.]
MJ: Let the record reflect the members have returned.
Mr. Puckett?
CDC: Thank you, Your Honor.
Your Honor, at this time, Lieutenant Colonel Lakin would like to make an unsworn
statement to the members.
UNSWORN STATEMENT
LIEUTENANT COLONEL TERRENCE L. LAKIN, US Army, the accused, took the witness
stand, and with the assistance of counsel, made the following unsworn statement:
CDC: Lieutenant Colonel Lakin, we've had 2 fairly long days of court here. It is now your time
to speak. I'd first like to hear a little bit about who you are, where you come from, where you were
born.
ACC: I was born in Greeley, Colorado, kind of a small, rural area in northeast Colorado.
CDC: In what year?
ACC: I was born in 1965.
CDC: Did you go to high school there?
ACC: I did. There's three major schools there, but the school I went to was a smaller one
associated with the university, and I attended kindergarten through 12th grade in the same school.
CDC: Did you go to college after high school?
ACC: I did.
CDC: Where'd you go to?
ACC: I went to Colorado College in Colorado Springs, a small liberal arts school.
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CDC: Continue with your education.
ACC: I always enjoyed different experiences, and after 2 years of college, I decided I needed to
experience a little real world. I became an EMT and worked a year as a 911 dispatcher in our city,
dispatching fire and ambulance. I enjoyed that, and then decided to go back and finish college and go
on to medical school after that.
CDC: Did you go back to the same college you started at?
ACC: I did, yes.
CDC: So you graduated?
ACC: Yes.
CDC: How'd you end up going to medical school?
ACC: I found out in college that my love was medicine. I grew up in a service-oriented family;
my father was a professional educator, higher administration; my brother had been involved in the
military, and my other brother involved in police work - I desired to serve. It was my duty to contribute
back to the community and our society.
CDC: Are your parents and your two brothers with us here today?
ACC: They are. They've been here - they traveled out from Colorado and Kansas. It was a
tough trip on them; our parents are elderly and have medical issues, too.
CDC: But they're here.
ACC: They are.
CDC: So, tell us about medical school. At some point, you must have entertained Anny
service. How did that come about?
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ACC: I knew about the Anny medical program, and the scholarships involved, and I applied for
medical school to a few places. The average wait for medical school was 5-7 years of applying. The
first year, I did not make it. I then spent a year working at the beef packing plant; I was an EMT, and I
was given the responsibility of being the night nurse; pretty much, a dangerous time for the beef packing
plant, lots ofmaintenance injuries. That was employment until I could apply the next year, and I got
accepted to medical school, and applied for a military scholarship to help me out with that.
CDC: Why the Anny?
ACC: The Anny, I heard, was the best training. The Air Force had better locations, and the
Navy was kind of in between, but I heard that the Anny - it really gave me the fantastic training and
better opportunities; it may not be the locations that the Air Force had.
CDC: Did you qualify for a scholarship?
ACC: I did.
CDC: Did the Anny partially or fully pay for your medical degree?
ACC: It was fully funded with the Health Profession Scholarship Program, and I was given a
small stipend, but books and tuition were paid for, greatly relieving me of any kind of financial hardship
or need from family members to help pay for an expensive medical school.
CDC: When were you commissioned, and when did you begin your Anny service?
ACC: We get commissioned in the Reserves when we start that program, and we're inactive
Ready Reserve throughout medical schooL After our graduation ceremony, we have a commissioning
ceremony and get commissioned as captains at that time.
CDC: When were you commissioned?
ACC: In 1993.
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CDC: Tell us some of the additional training that you've received since medical school, some
additional certifications.
ACC: After medical school, everybody has to have an internship, and I went into internal
medicine in Denver, Colorado at Fitzsimmons Army Medical Center; that was a hospital that was
starting to close down, and my wife and I were together there - we met in medical school. She was
training at a civilian internal medicine program in Denver, and I was at Fitzsimmons Army Medical
Center in internal medicine. We hardly saw each other during this internship. That was my initial
training for becoming a general medical officer. I loved being in the same city with my wife, but we
really didn't see much of each other, and she was going to have we both had 2 more years in our
program. Along that way, I decided that family practice was my true love; I thought family practice,
treating all ages of people, was better suited to me than internal medicine - family practice was more
hands-on. So I elected partway through to do a utilization tour, and my first utilization tour with the
Army was as a flight surgeon down in Honduras.
CDC: How long was that tour?
ACC: It was an unusual assignment. It was a PCS move, a I-year unaccompanied hardship
tour. I was the flight surgeon. They had removed their flight surgeon 6 months prior to her assignment
being over, so they'd been without a flight surgeon for 6 months, and I reported down to them and spent
a year with them.
CDC: Was that a good experience?
ACC: It was austere environments. We were actually located across the airfield from our
medical element, so we were essentially removed from backup by 20-30 minutes. I was the only
physician. We did have several cases throughout the year that I think my experience saved two
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gentleman's lives. We weren't in a combat environment, but we were in an austere environment. My
quick diagnoses of them, despite having the medical element, my backup, perhaps second-guessing me,
I persisted with my diagnoses of these two gentlemen, two active duty guys - we medevac'd them out in
a much quicker manner, and I believe that they directly benefited from that.
CDC: What was your next assignment after Honduras?
ACC: After Honduras, I was applying to try and get back to a civilian program, close to my
wife, and the Army wouldn't release me from the military programs, so I continued on with utilization
tours. I went to Germany, and met with - upon my arrival in Germany, they were slotted to go to
Bosnia right away. I believe I had a month with the unit before we were marching into Bosnia. I was
assigned to the Apache battalion of 4th Aviation Brigade; we were the first unit into Bosnia. Most ofthe
aviation unit stayed behind for several weeks.
After we had originally pushed into Bosnia, I learned that my brigade surgeon had been
using our narcotics that we had, and he essentially got relieved of his brigade flight surgeon job, and I
became the brigade flight surgeon. We opened up a very austere post, Comanche Base. It was an
abandoned airfield. We stayed the winter in tents as we built up hard-backs. We had a lot of ancillary
units that joined us, and there was only myself and another flight surgeon caring for 1,700 troops on that
base.
CDC: Where'd you go from did you redeploy back to Germany from there?
ACC: I did, for a short time. I stayed with the unit to get them redeployed, and I had applied for
a family practice residency at Womack.
CDC: Did you get that?
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ACC: I did. It worked out timing-wise. My wife had finished up with her program by then and
was able to join me at Womack.
CDC: You started training as a flight surgeon, and then got a certification in family medicine, is
that right?
ACC: Yes.
CDC: When did the occupational health certification come along?
ACC: After my family practice residency, my next PCS was to Schofield Barracks in Hawaii. I
was medical director of the acute care clinic for 2 years, and became Chief of Primary Care. I was Chief
of Primary Care for about a year, and then the division in Hawaii, 25
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Afghanistan. I knew they needed another flight surgeon - I was raising my hand, saying, 'I'm ready to
go. I've been here for 3 years.' They tried to utilize other people several times. I believe there was
three physicians that initially trained with the unit and couldn't deploy for one reason or another, until
they finally got down to choosing me, and I'd been raising my hand the whole time, saying I'm ready to
go.
CDC: And you went?
ACC: I went.
CDC: This was the unit that Colonel Willoughby was the XO of?
ACC: Yes.
CDC: He already told us about what happened during that tour.
What was your next tour?
ACC: After Afghanistan, I redeployed with the unit back to Hawaii, but did get accepted for
secondary training in occupational medicine.
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1 CDC: Where was that?
2 ACC: That was here at Bethesda. The occupational medicine program was an intense year of
3 earning a Master's in Public Health for 1 year, and then you do clinical rotations in your specialty of
4 occupational and environmental medicine, which is a branch of preventive medicine.
5 CDC: So you held three certifications?
6 ACC: Yes.
7 CDC: I want to kind of divert attention now to a different subject.
8 You'd mentioned your wife a moment ago. What is your wife's name?
9 ACC: My wife's name is Pili short for Pilaiporn; she was born in Thailand, her parents are
10 both Thai.
11 CDC: When were you married?
12 ACC: We fell in love in medical school the first 2 years; the third and fourth year of medical
13 school, we did rotations all around the country for a month at a time, and we tried to see each other
14 when we could, but we got married during internship in 1993.
15 CDC: Is she a doctor as well?
16 ACC: She is.
17 CDC: What is her specialty?
18 ACC: She specializes in internal medicine.
19 [DE B was displayed.]
20 CDC: Is that Pili?
21 ACC: That's Pili, yes.
22 CDC: Where do you live now?
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1 ACC: We live north of Bethesda.
2 CDC: When was this picture taken?
3 ACC: This would've been last April.
4 CDC: Is she practicing medicine right now?
5 ACC: No, she practiced for a couple years when we were at Womack, and she worked at the
6 Veterans Administration hospital there. When we had our first child, she became a stay at home mom,
7 and has been raising our three children.
8 CDC: In that case, Major Kemkes, if you'd move from Defense Exhibit B to C
9 [The defense counsel was assisting with displaying the exhibits.]
10 Is that your family?
11 ACC: It is.
12 CDC: Introduce us.
13 ACC: Our oldest daughter is she's 11 years old. She is an incredible little girl. She took
14 up piano about 5 years ago; she practices very hard at piano. She's won some regional competitions,
15 and is a good budding pianist. Her true love is gymnastics, and she wants to be an Olympic gymnast.
16 She also spends 12-16 hours a week in the gym, doing gymnastics.
17 CDC: What grade is she in?
18 ACC: She just started middle school, sixth grade.
19 CDC: Next?
20 ACC: is my 8-year old boy, born in Hawaii. He is a great little kid. He is developing,
21 good at baseball; he was on the all-star team last year. We've been doing karate together for 3-4 years.
22 We've both advanced to brown belts.
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1 CDC: He has a brown belt, and you have a brown belt?
2 ACC: Yes, we do.
3 CDC: Who is tougher?
4 ACC: He is. He can hit harder.
5 CDC: Who is next?
6 ACC: is our soon-to-be 3-year old. He is a December 31 8t baby, so he's got a birthday
7 coming up. He was born here at Bethesda during my training. He's just quite a little bruiser.
8 CDC: How would you describe his personality?
9 ACC: He's a tough guy. He doesn't take any flak from his brother and sister.
10 CDC: Ten us about your current assignment. When did you arrive at your current duty station
11 and assignment?
12 ACC: My utilization tour after my occupational and environmental medicine residency - I
13 worked up at Aberdeen Proving Ground for 2 years. At that time, I was completing my utilization tour
14 of 2 years. I was looking for another position. After some changes, I found that there was a flight
15 surgeon job at the Pentagon opening, so I actively sought that out, and I became the Chief of Primary
16 Care and the flight surgeon at the Pentagon clinic.
17 CDC: Starting when?
18 ACC: That was starting in July oflast year.
19 CDC: You understand that the purpose of this hearing is for the members to determine an
20 appropriate punishment for your offenses against the UCMJ. I want you to go back to the beginning of
21 when you started to have concerns about the Constitution. Give us a timeframe for that.
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ACC: As I recall, it was - the primary elections were going on. I was working at Aberdeen
Proving Ground as the occupational medicine program manager. Every job I've had, like all Army
people, I worked 10-12 hours a day getting everything done. In the free time I had, I learned about a
controversy of the candidates. There was an issue of the question of the natural born citizen issue with
Barack Obama.
CDC: Why did that attract your attention?
ACC: I was trying to learn about the candidates. I'd also learned that John McCain had this
issue.
CDC: With what issue?
ACC: The issue of the question of his natural born citizen status.
CDC: Someone challenged it?
ACC: The opposing party in the prior election challenged his eligibility for the presidency.
CDC: How could they possibly do that? What grounds?
ACC: He'd been born in Panama; his father was an admiral assigned in Panama, and his mother
was they were both US citizens, but on military duties in Panama. There was concern that he was born
on foreign soil, and therefore, not eligible to be our Commander-in-Chief or President.
CDC: Did he resolve that, or was it resolved?
ACC: He provided everything that he could, from what I could gather. He provided a birth
certificate that had the hospital name, doctor's name, and gave the location; and also, his parents were
on active duty orders, and they were both citizens.
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1 CDC: Now comes the problem with Senator Obama running for the presidency, and you started
2 to do some research. What was it about the research? What did you find in your research that caused
3 you concern?
4 ACC: Just the lack of information, the lack of scrutiny or people looking into the true merits of
5 what was going on. There was questions about the image of a birth certificate that was produced on the
6 internet that was supposedly his birth certificate, but gave no points for validating that no hospital
7 name, no doctor's name. There was questions about relatives that said they were at his birth in Kenya.
8 CDC: You're relying on reports that you're reading on the internet, right?
9 ACC: Yes.
10 CDC: You're gathering all the information you can get hold of.
11 ACC: I had an open mind, I'm skeptical, and wanted to know the truth. It was troubling to me
12 that there would be one issue that is spelled out in our Constitution, that you need to be a natural-born
13 citizen to be president, and there was a candidate that had gone through scrutiny and probably complied
14 with that requirement, and another candidate - there was a lack of information.
15 CDC: Why were you so curious about that?
16 ACC: I just became - by reading newspapers. I like to stay involved in current events, and I
17 think that's important.
18 CDC: How did you feel after the election of 2008?
19 ACC: After the election ---­
20 CDC: Were you still concerned about it?
21 ACC: Extremely concerned.
22 CDC: Why?
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ACC: I think that this issue is not about politics, it is not about anything else, other than
complying with the supreme law of our land, the Constitution.
CDC: Are you just mad because you voted republican and your candidate lost?
ACC: No, I could care less about that. I want a valid Commander-in-Chief.
CDC: So, beyond research on the internet, did you attempt to get an answer to this question
about whether or not there was validity?
ACC: I did. It affected me so much that, at the time, I'd heard that my unit I deployed to
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my friend, who was now the division surgeon, and I was interested in deploying. I knew it was my time.
He needed somebody with my skills; he knew my talents and work habits, and really wanted me to go
with them. He was going to do a "by name" request. As I learned more and more, and the election
happened, I said I'm not comfortable with this anymore.
CDC: Why weren't you comfortable?
ACC: Because I was concerned that our Constitution was not being followed.
CDC: In what specific respect?
ACC: In having a Commander-in-Chiefthat was eligible to hold that office.
CDC: How does that affect you though? How does that issue affect you?
ACC: I believe my oath as an officer is to protect and defend the Constitution, and I ---­
CDC: What did you perceive about the Constitution?
ACC: I perceived that this was an issue that may weaken our Constitution; our Constitution is
what holds our country together.
CDC: Did you know, for sure, that the President was ineligible?
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ACC: No.
CDC: Do you know today, for sure, that the President is ineligible?
ACC: I do not. I have this question, and I don't think anybody can know the answer. It is a
question that I believe the country needs to know, but it remains a question. It bothered me.
CDC: So you made a connection between your oath to support and defend the Constitution of
the United States against all enemies, foreign and domestic, to be your connection to the issue of
whether or not the Constitution had been followed in the election. Is that a fair statement?
ACC: Yes.
CDC: What further efforts did you make as a soldier to get answers to the questions that you
had? Start at the beginning. What was the first thing that you did?
ACC: I sought out advice.
CDC: From who?
ACC: Advice from friends, advice from my command, advice from senior leaders. I called
Legal Assistance, told them about my concerns and how important they were to me, and they said they
needed to research this and they'd get back to me.
CDC: Who was your command at that time when this first started?
ACC: This was at Aberdeen Proving Ground.
CDC: Go ahead.
Did anyone answer your question?
ACC: No, Legal Assistance never returned my calls. I'd called them maybe twice a week for
several weeks at a time, leaving voice messages, and they never replied back to me.
CDC: Did any commanders ever answer your question?
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ACC: No. I talked to the company commander at length. I talked to my supervisors. They all,
pretty much, said this was an issue and a question, but we don't know what to do. I had to research it on
my own, look at a new process, an Article 138 complaint against the command.
CDC: Tell us about that. What is an Article 138 complaint?
ACC: An Article 138 is a complaint that a soldier can do against his command for any reason
they feel they were mistreated or had concerns.
CDC: Did you initiate one ofthose?
ACC: I did.
CDC: What was thc subject matter of that?
ACC: The subject matter was, 'Please, somebody in my chain of command, tell me that there is
not an issue about following potentially illegal orders, or orders that are being promulgated by
somebody that is ineligible to hold the office.' I think I worded it to beg and plead that ifthis is not the
right process, tell me what process I need to use.
CDC: Who was the addressee for your first Article 138 complaint?
ACC: It went through my company commander, the captain, and I asked him to channel it up
the chain as far as he needed to go.
CDC: Who gave you an audience to answer your question on that Article 138 complaint?
ACC: Nobody. The reply I got back from him was this was a deficient complaint, and they
don't have to address it any further.
CDC: What was the next step you took after that was done?
ACC: Again, I asked what was the next step. I asked if I could do a congressional inquiry, and
was told that I could. So I wrote up congressional inquiries to my congressmen.
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1 CDC: How many?
2 ACC: Three ofthem, the two senators and the representative.
3 CDC: Were they the same? Did they have the same content?
4 ACC: Yes, they did. One senator did not reply; another senator gave me a reply back, saying
5 that this issue had been Twittered and found not to be an issue; the representative sent it on to Military
6 Affairs, who sent it down to my company commander again, and I got the same reply - that my
7 complaint was found to be deficient and didn't need to be addressed.
8 CDC: So, no congressional inquiry answered your question?
9 ACC: No.
10 CDC: Wasn't there another Article 138 complaint?
11 ACC: There was. By that time, I continued to pursue what else I could do. When I transferred
12 to the Pentagon ---­
13 CDC: In 2009.
14 ACC: In July 2009 - almost immediately, I started addressing it with my command there. I
15 have this concern, I have these issues.
16 CDC: At a low level? Did you start asking at the bottom of your chain of command?
17 ACC: No, with my clinic commander. Again, there was no real- there was the
18 acknowledgment of a concern and issue, but no real guidance on what to do. I proceeded to tell him that
19 I'd try another Article 138 through this chain of command, and I prepared an Article 138.
20 CDC: Was it sent up the chain of command?
21 ACC: I actually sent it to General Casey, and I asked him the same things. In that Article 138, I
22 believed that I'd validated my concerns using the AmlY Values, that I alone had to research, and thought
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I was complying with Army leadership values to question this issue. The reply back that I got was,
essentially, that General Casey was not in my chain of command and did not have to address this.
CDC: Did you think General Casey was in your chain of command?
ACC: I did.
CDC: Why?
ACC: He's the Chief of Staff of the Army. I believe he is the highest person in my chain of
command in the Army.
CDC: So, what step did you take next after you got that deficient reply? Did you address any
higher personally, one-on-one, with anybody in your chain of command?
ACC: I had talked about it at opportunities that I could. When I got these when I became
aware that I was on the short list for a deployment, this greatly concerned me. I ended up making'
appointments with congressional members on the Hill.
CDC: Did you go see them?
ACC: I did.
CDC: How many?
ACC: Face to face with one congressman, and I met several high-level staffers and had long
meetings with high-level staffers at the time.
CDC: What answers did you get there?
ACC: It was like they were taking a step back. They said - I was directly told, 'We knew there
was a problem during the election. We made some efforts to try and address it. The media ridiculed us,
and we couldn't get any traction with it.'
CDC: So they were done with it?
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ACC: And we had to let it go. One even advised me, 'Maybe what you should do is go on your
deployment and then raise the issue when you're on deployment,' which, to me, seemed like a worse
answer.
CDC: Why is that a worse answer? Go on your deployment, but then raise this while you're on
deployment. Why is that not as good a solution?
ACC: That would be extremely wrong to raise this in a combat zone. I considered myself in
garrison, trying to address this issue through proper chain of command, and doing everything I could.
CDC: How did you present the issue ofthe possibility of not complying with your orders to
transfer to a unit at Fort Campbell? How did you first make that known to anyone?
ACC: I was tom. I wanted to deploy and do my duty. I thought that this was such a concern
about our Constitution that ---­
CDC: You thought you thought that if you deployed, it's possible that if the Commander-in-
Chief weren't authorized to be the Commander-in-Chief, or eligible to be President, you thought that
following that order might retroactively, or retrospectively, be determined to be an illegal order because
he wasn't validly holding the office. Is that a fair statement?
ACC: I did see some connection there.
CDC: At what point in time did you seek the advice and assistance of an attorney about what to
do about this? Wasn't there a time when you talked to an attorney?
ACC: I did. It was 2 Y2 years ago, I was at the ILE course. During the small-group discussions
ILE is our intermediate level training for the military - several officers in the small group. I was the
ranking member of the group, the small-group leader. But there were several lawyers in the group, and I
chose one of them to say, 'I have issues with this. Tell me what to do.'
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1 CDC: Did you lay it out for him?
2 ACC: He hadn't looked into it, he said he didn't know about it, but he called this person, and I
3 subsequently talked to a lawyer.
4 CDC: So he referred you to an attorney?
5 ACC: Yes.
6 CDC: Who was that attorney?
7 ACC: That attorney was Paul Jensen.
8 CDC: Where were his offices?
9 ACC: In California.
10 CDC: Did you call him?
11 ACC: I did.
12 CDC: Why did you call him? Why were you directed to him?
13 ACC: I was not receiving any guidance from any military lawyers about seeking somebody out
14 about this issue. There was no responses, or the responses that I did get were invalid complaints.
15 CDC: Is this an attorney that the JAG you talked to knew or knew of?
16 ACC: Yes.
17 CDC: So he said, 'Call this guy. Call Jensen.'
18 ACC: Yes.
19 CDC: Did Mr. Jensen have any military experience?
20 ACC: Very little.
21 CDC: What did he have?
22 ACC: I think several months on the appeals court.
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CDC: He was a judge?
ACC: No, as a lawyer-clerk, I believe.
CDC: A clerk for who?
ACC: I believe it was - I can't recall the name.
CDC: Some appellate judge?
ACC: Yes.
CDC: But he'd never been in the military?
ACC: No.
CDC: Much less, a military lawyer, right?
ACC: No.
CDC: Had he ever done a court-martial before?
ACC: No.
CDC: Mr. Jensen had no connection with military legaJ process at all, is that right?
ACC: No.
CDC: He's the guy that you were recommended to tum to for advice. Did you ultimately hire
him?
ACC: I did.
CDC: When did you begin to be represented by Mr. Jensen?
ACC: I received deployment orders that were coming up, and on the bottom ofmy deployment
orders, it said, "Bring a copy of your birth certificate." To me, I thought there was an issue here.
[Several members of the gallery applauded.]
It was a conflict for me, huge turmoil.
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CDC: So it says on your orders, "Bring a copy of your birth certificate," and you had this
question about, 'Nobody else has to show theirs, like the President; right?
ACC: Yes.
CDC: Back to my question. My question is - when did you first begin to be represented by Mr.
Jensen? Do you remember when that was?
ACC: I think it was March.
CDC: March ofthis year?
So, this crucial time when you were trying to make a decision, you turn to Mr. Jensen for
legal advice.
ACC: Yes.
CDC: What'd he tell you?
ACC: We had several discussions; this was an issue, a Constitutional issue, and several other
people, including him, had told me that we have a unified chain of command that starts at the top.
CDC: Did he seem to know about this issue, about that native-born issue?
ACC: Yes, he did.
CDC: How did he know about that?
ACC: I believe he'd been following it, too, and was well-researched into it.
CDC: Was this a cause that he'd taken up himself?
ACC: Not until I'd spoken with him.
CDC: What did he recommend that you do?
ACC: This was such an important question to me that I felt I had to do something to get an
answer, and I think our ---­
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CDC: What did he recommend that you do?
ACC: [No response.]
CDC: What was his advice to you about how to deal with this? You've got the deployment
orders; you don't know if, later, you deploy, somebody is going to say, 'Look, there's the Kenyan birth
certificate, the President shouldn't have been the President, and therefore, I obeyed an illegal order, but
at the time, it was legal.' What did he recommend that you do?
ACC: We discussed, and I took the action of not going on deployment.
CDC: Based on his advice?
TC: Your Honor, this is gets into what we believe would be in conflict with the providence,
and we'd like a 39(a) session.
MJ: rIllet it continue. Proceed.
CDC: Who made the decision to say to your command, 'I'll deploy, if someone can prove to me
that the President is eligible.' Who made that decision?
ACC: I did.
CDC: Who is responsible for that decision?
ACC: I am.
CDC: Is that your lawyer's fault?
ACC: No.
CDC: It's your fault, right?
ACC: It's my fault.
CDC: Do you take responsibility for that?
ACC: I do.
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1 CDC: You didn't believe, as your orders were written, they were illegal, did you?
2 ACC: No, I had ­
3 CDC: So no, you didn't believe they were illegal, but you were concerned that there's still this
4 Constitutional issue, so you used the occasion of these orders to raise the level of visibility on the
5 question, did you not?
6 ACC: I did. I think that this is such an important question, our country needs an answer.
7 CDC: Once you did that, and you didn't get an answer, you had to follow through with it in
8 order to be taken seriously, didn't you?
9 ACC: Yes.
10 CDC: There were lots of people advising you to go in that direction, weren't there? Lawyers
11 and non-lawyers. They were supporting you in this effort.
12 ACC: Yes.
13 CDC: And they were urging you to stick to your guns, to do things consistent with that, and
14 don't back down; and that continues to this day, doesn't it?
15 ACC: It does, including enlisted members and other military members - other officers.
16 CDC: You're getting lots of support, aren't you?
17 ACC: Yes.
18 CDC: But the decisions you made at each and every occasion were yours and yours alone?
19 ACC: Yes, they were.
20 CDC: Twice, you refused to meet with Colonel Roberts, is that correct?
21 ACC: Yes.
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CDC: Wasn't it Mr. Jensen who advised you that that course of action would be consistent with
your original position of refusing to deploy until you got proof?
ACC: Yes, and I wrongly followed that suggestion or advice.
CDC: That turned out to be really bad advice, didn't it?
ACC: Yes, in hindsight.
CDC: Did you personally communicate to Colonel Roberts, "You had your chance?"
ACC: No, I did not.
CDC: Who said that to your chain of command?
ACC: I believe that was Paul Jensen, talking to Lieutenant Colonel Judd.
CDC: Who then relayed it to Colonel Roberts?
ACC: Yes.
CDC: You never told Colonel Roberts, "You had your chance," did you?
ACC: The gentleman is a Medal of Honor recipient; no, I would never disrespect him in that
way. It was horrible enough not going up to see him and refusing those orders.
CDC: Do you regret that?
ACC: Definitely.
CDC: You ultimately went to see him, didn't you?
ACC: I did.
CDC: Should you have gone the first time he asked?
ACC: Certainly.
CDC: Even if you had misgivings that first time, that second time, you should've gone,
shouldn't you?
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ACC: It was a confusing time for me, very emotional, and I chose wrongly.
CDC: Because by this time - when had you met Major Kemkes?
ACC: I hadn't really met him.
CDC: You called him?
ACC: I called him.
CDC: Why did you call his office?
ACC: I called him when I was going to submit my Article 138 to General Casey. I was seeking
further advice.
CDC: Did you have occasion to seek Major Kemkes's advice before deciding whether or not to
go see Colonel Roberts?
ACC: Yes, I did.
CDC: What did Major Kemkes tell you to do?
ACC: He advised me that I needed to go see him.
CDC: Both times, right?
ACC: Yes.
CDC: Didn't he also advise you not to refuse your orders to Fort Campbell?
ACC: Yes, he did.
CDC: Isn't it true that Mr. Jensen would sometimes tell you you ought to do this, and then when
he was on the phone with Major Kemkes, he would take Major Kemkes's position?
ACC: He would give me a small disclaimer and certainly elaborate on the disclaimer ---­
CDC: The disclaimer was?
ACC: Legalese, saying, "I cannot advise you to do this."
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1 CDC: He could not advise you to violate the law?
2 ACC: Yes.
3 CDC: But in private conversations, he had basically said, "Well, you know, it would be
4 consistent, you should probably do this."
5 ACC: Yes, with small disclaimers of, 'I can't advise you to do this.'
6 CDC: So you were consulting two lawyers, and they gave you what could call conflicting advice?
7 ACC: It was difficult.
8 CDC: Did that add to your confusion?
9 ACC: Of course it did.
10 CDC: Did you understand at the time that you finally decided not to go to BWI and get on the
11 US Airways flight that you helped schedule - did you understand at the time that you were crossing a
12 line?
13 ACC: I did.
14 CDC: Did you know there would be consequences to crossing that line?
15 ACC: I did. 1 knew that my career was over. I was subject to confinement and --­
16 CDC: You're a Lieutenant Colonel (Promotable), aren't you?
17 ACC: I was selected for Colonel several months prior to that, and would be pinning on next
18 year.
19 CDC: But now, you've got a federal conviction, don't you?
20 ACC: I had to weigh in my mind what the risks were for our country and Constitution, written
21 by these incredible gentlemen behind the panel here [motioning to portraits of Washington, Jefferson
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and Lincoln], who risked their lives for establishing that Constitution. To me, risking my career and
confinement was a small order compared to that.
CDC: To raise the issue to higher visibility, so that it could be addressed, so you could get your
question answered, is that fair?
ACC: Yes.
CDC: Even today, your question hasn't been answered?
ACC: No, it has not, and I ---­
CDC: What do you think would've happened if you'd been invited to General Casey's office?
And General Casey, along with his primary legal advisor, sat you down and explained the law to you -­
Constitutional law, the political process, the inaugural process, the impeachment process, and all the
processes available - and explained to you, as you now know, that as long as the President serves in
office, he carries the full weight and authority of that office, and can only be removed by a certain
number of ways the impeachment process; he dies; he decides to quit; or he is voted out of office.
That's pretty much it, as you now know, right?
ACC: Yes, I know that now. I would've valued that input. I thought that I was begging for that
input on my Article 138s.
CDC: Would it be fair to say that if someone had answered your question and proven to you,
one way or the other, what the answer to that question was, you would no longer have had a question in
your mind, right?
ACC: Right.
CDC: But nobody did that?
ACC: No, no one did.
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CDC: So you, doing your own internal mental analysis, eame to your own conclusion that this
final, last-ditch step, had to be taken?
ACC: This was something that I was left alone with to research also, and I turned to Army
manuals; I turned to FM 6-22 on leadership, and I found correlations that I was upholding the Army
Values in questioning this in a garrison setting. This was not a combat issue at the time.
CDC: So, you thought - between the two decisions of deploying and questioning it from the
battlefield it would be less egregious or less disruptive to question it before?
ACC: Unquestionably, yes. That would not have been done ifI would've deployed. I would
not question it from there.
CDC: Because you've had the sage and experienced advice of Major Kemkes and Mr. Puckett,
isn't it true that you now understand - you really knew at the time - that Army commanders have their
own authority to issue orders, isn't that right?
ACC: I do understand that.
CDC: And when Colonel Roberts says, "Come see me," what that means is, "Come see me,"
right?
ACC: It does.
CDC: His authority as the commander exists completely independently, you now understand,
from the authority, or lack thereof, of the current holder of the Commander-in-Chief slot, isn't that
right?
ACC: I do understand that.
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CDC: So, do you now understand that the Army, as an institution, up to and including General
Casey, through whatever Article 138 complaint or whatever, do you understand that the Army is going
to be unable to answer your question, one way or the other?
ACC: I do.
CDC: So you tried everything that you knew to try in the Army, is that right?
ACC: I did.
CDC: Are you a conscientious objector?
ACC: No.
CDC: Are you afraid to go to war again?
ACC: No. I would deploy tomorrow. I have unique capabilities, I think, that are wonderful for
deployments.
CDC: What is different now than what was different back in March? Why are you saying 'I'll
deploy' now?
ACC: That's my job, that's my duty. I have sought everything that I could to answer this
question that I had. I've come up short, and I understand that it cannot be answered by the Army.
CDC: Earlier in here, we heard an audio where somebody asked you this question, "Would you
do this again?" What's your answer today?
ACC: I would not do this again.
CDC: Why has that answer changed? Is it because you know more now than you knew then?
ACC: Better information from the guidance I was seeking earlier.
CDC: So, that opinion you expressed earlier on a radio interview, that was an opinion that you
had at the time, based on inadequate input?
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ACC: Yes.
CDC: Do you feel better educated now?
ACC: I do.
CDC: Why should these good people let you keep your job?
ACC: Because I don't want it to end this way. I want to continue to serve the military. I think I
have done a lot of training, and I think I have unique skills that the Army can use, especially on the
battlefield; my family practice experience is ideal for that setting. My osteopathic skills, manipulating
people and using that modality to help people out with muscular-skeletal issues. I've been trained in
acupuncture now, and the use of battlefield acupuncture is incredible for pain management, for stress
and psychiatric issues on the battlefield. I don't know anybody that has my training in family practice,
occupational and environmental medicine and acupuncture skills, and being a flight surgeon who has
been on numerous deployments. It crushed me not to be on the deployment, and I feel that I cheated
myself out of a deployment. I'm ready. I can serve the Army. I can be on a plane tomorrow and
deploy. I would truly do that.
CDC: We saw a giant image of you up on the wall there, telling us all that you invited this
court-martial. How do you feel about that now, now that you're convicted at a general court-martial?
How does that feel to you? Are you proud ofthat?
ACC: No. It is crushing. It is crushing to my family. It is crushing.
CDC: The cute little 3-year old guy sitting up there [referring to DE C], if they send you to jail
today, which they can do, how are you going to feel about that cute little cherub there coming to visit
you on Christmas Day in jail, if you're even close enough for them to do that? Does that make you
proud, Lieutenant Colonel Lakin?
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ACC: No. I've cried over this.
CDC: Is this a proud day for you?
ACC: No, it is horrible. I've cried about this so many times. I've been crying for a year over
this. I can't believe that this has happened in our country.
CDC: Here, we have images all over the internet of the mighty Dr. Lakin, taking up the birther
cause, asking the question, challenging the President, inviting his own court-martial. Great idea, huh?
Not so great?
ACC: No. It's horrible.
CDC: So, if these people send you to jail, those beautiful people [pointing at DE C] have to
come visit you in jail. So they'll always have the image of seeing Daddy through bars, or through a
Plexiglas window. Have you visualized that, and gotten comfortable with that?
ACC: Not at all. It's not what I wish to happen. I wish I had chosen a different path earlier. I
wish I had been offered more assistance. I wish I had gotten better guidance.
CDC: Better guidance?
ACC: Yes.
CDC: Do you blame the Army for not giving you better guidance?
ACC: It's my fault.
CDC: It's all your fault, isn't it?
ACC: It is.
CDC: How long would it take you to get to BWI, if somebody told you there was a plane
waiting for you that would allow you to join a unit in Afghanistan? Could you do that today? Could
you do that tomorrow morning?
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1 ACC: I would.
2 CDC: Could you and would you?
3 ACC: I would. I could.
4 CDC: But your questions haven't been answered, Dr. Lakin - your questions about the
5 President's eligibility haven't been answered. How can you deploy to combat?
6 ACC: That's my duty.
7 CDC: It's your duty. Do you believe that?
8 ACC: That's what I'm trained for. I'm in the Army. I can benefit the Army, and I belong with
9 those troops. It's a horrible situation of how it affects everybody.
10 CDC: If Colonel Roberts were sitting in that chair right now and facing you, what would you
11 say to Colonel Roberts? What would you say to him?
12 ACC: I already apologized to him in the hallway at Walter Reed.
13 CDC: What would you say to him right now?
14 ACC: I'm sorry that all this happened. It's something that is so difficult for me, and I thought I
15 was choosing the right path, and I did not.
16 CDC: Would you advise anyone else to choose that path?
17 ACC: [No response.]
18 CDC: Would you advise a sergeant, who maybe looked up to you because you're a lieutenant
19 colonel- a sergeant in the medical community; would you say, 'You know, maybe you ought to try this.
20 It didn't work for me, but maybe it'll work for you.' Would you ever say that to him?
21 ACC: Never. I never did say that to anybody.
22 CDC: Did you ever learn in your training that officers lead by examples?
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1 ACC: Yes. I was wrongly trying to live to that example and live up to the leadership values that
2 I thought had been trained and instilled in us. I chose the wrong path for that.
3 CDC: What are you willing to do to continue to be a flight surgeon in the Army? What price
4 are you willing to pay? Is there any limit?
5 ACC: No. I would deploy at any time. I'm deployable.
6 CDC: How about punishment? Is there any limit on the punishment you'd be willing to serve to
7 keep your job in the Army?
8 ACC: No.
9 CDC: It is judgment day, isn't it?
10 ACC: Of course it is.
11 CDC: You've invited this court-martial, so you invite the sentence, don't you?
12 ACC: Yes.
13 CDC: Whatever these people say is right is right, isn't it?
14 ACC: It is.
15 CDC: Are we done disobeying orders, Lieutenant Colonel Lakin?
16 ACC: Yes, we are.
17 CDC: Forever?
18 ACC: Yes.
19 CDC: Is there anything else you'd like to say?
20 ACC: I'm extremely sorry for everything that has become of this. His just a unique situation
21 that I don't think - it has never happened before. As a military member, I was wrong in trying to push
22 this issue within the military.
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CDC: For the rest of your life, you get to live with a federal felony conviction, don't you?
ACC: Yes.
CDC: That's all we have, Your Honor.
[The accused returned to his seat at counsel table.]
[Copies of DE A were distributed to the members.)
Your Honor, the defense has nothing further to present.
MJ: Members ofthe panel, I have to take about 5 minutes with counsel, just to go over
logistics and scheduling. I'm going to ask, if you would, return to the deliberation room. I'll be calling
you back shortly.
PRES: We're going to take these [copies of DE C] now?
MJ: No. You wanted the members to look at them?
CDC: At their leisure, whenever they want; not necessarily before deliberations.
MJ: If you want them published, I'll seat everybody and we'll go ahead and publish them
now, or do you waht to wait and do that later?
CDC: We can do that later, ma'am.
MJ: You'll have the chance to see those when we close the court for deliberations on
sentencing. Right now, we'll just take a brief recess and call you back.
Go ahead and give those back to the bailiff.
[After returning copies ofDE C, the members withdrew from the courtroom.]
Let the record reflect the members have departed.
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Counsel, meet me in chambers in a couple minutes to talk about logistics, then we'll
come back on the record and everybody will know how we decide to proceed.
Court is in recess.
[The court-martial recessed at 1812, 15 December 2010.)
[END OF PAGE]
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[The session was called to order at 1821, 15 December 2010.]
MJ: This Article 39(a) session is called to order.
We had just about 1 minute of proceedings, where we didn't realize that the court
reporter was not here, so I'm going to repeat those proceedings. If either side believes the record should
be supplemented in any fashion, please stand up and let me know.
Counsel and I met in an RCM 802 conference; what that is is a conference where I go
over logistics and other issues that are going to arise in cases. We have made the decision that we are
going to recall the members in, recess the court for the evening, and then advise the members to be here
at 0900 tomorrow. The parties and I are going to open the court for an Article 39(a) session at 0830
tomorrow to see ifthere are any issues we need to address before we call the members.
Would either side like to add anything additional to what transpired in the RCM 802
conference?
TC: No, ma'am.
CDC: No, ma'am, thank you.
MJ: Is there anything else we need to address before we call the members?
CDC: No, Your Honor.
TC: No, ma'am.
MJ: Please call the members.
TC: Ma' am, just to let the record reflect, all parties that were present before we last recessed
are again present.
[END OF PAGE]
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[The members returned to the courtroom.]
MJ: Let the record reflect the members have returned.
Members of the panel, we have decided that this is a good point to recess for the evening.
We're going to stay with tradition and ask that you come back and be ready to go at 0900 tomorrow
morning. Once again, the same thing that I've been advising you - please avoid contact with witnesses
or potential witnesses in the case, as well as media representatives; no research on Google; no posting on
Facebook or Twitter; and please don't discuss this case with anyone, not even among yourselves. If
anyone tries to discuss this case with you during the overnight recess, tell them immediately to stop, and
report the occurrence to me at the next open session.
Is there anything else we need to address before I release the members?
CDC: No, Your Honor.
TC: No, ma'am.
MJ: Members, we'll see you tomorrow morning at 0900.
[The members withdrew from the courtroom.]
Let the record reflect the members have departed.
Is there anything else to address before we recess the court?
CDC: No, Your Honor.
TC: No, Your Honor.
MJ: Court is in recess.
[The court-martial recessed at 1824, 15 December 2010.]
[END OF PAGE]
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[The session was called to order at 0843, 16 December 2010.]
MJ: This Article 39(a) session is called to order.
Let the record reflect all parties present when the court last recessed are again present in
court; the members are absent.
Counsel and I met in an RCM 802 session when we closed last evening. The government
was going to advise this morning whether there would be a rebuttal case.
Will there be a rebuttal case?
TC: Yes, Your Honor, the government intends to offer several excised portions of the
accused's providence inquiry in rebuttal, and we turned over the entire typed transcript of the providence
inquiry, and we're currently making pages with only the excised portions that we intend to introduce as
prosecution exhibits.
MJ: Defense, have you seen those excised portions?
CDC: We have, Your Honor.
MJ: Any objection?
CDC: Yes, Your Honor.
First of all, I want to request that if the court is going to rule that those are admissible as a
prior inconsistent statement, I'd like to direct the court's attention to MRE 106.
MJ: The rule of completeness, correct?
CDC: Yes, Your Honor.
It says that when a writing or recorded statement, or part thereof, is introduced by a party,
an adverse party may require that party, at that time, to introduce any other part, or any other writing or
recorded statement, which ought, in fairness, be considered contemporaneously with it.
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What we're asking for, Your Honor, is there's a paragraph right before the section that
the trial counsel wants to introduce - contemporaneous, to flow, to put into context, I think it is
important, read as a whole, with that paragraph right before that they ought to include that as well, as
completeness for that concept, that idea that was being discussed by the military judge - that they should
have to introduce that as welL
However, when you read those all in context - just the one paragraph before the section
they want - the statements by Lieutenant Colonel Lakin are not inconsistent in any way with what he
said yesterday on the stand.
MJ: I'm going to need to see what we're talking about before I can make a ruling.
CDC: Yes, Your Honor. Just to make the record, we can - this transcript we have has
numbered pages, and it has lines on it, so we're talking about page 18 ---­
MJ: Hold on one second. Let's have it marked as an appellate exhibit.
(The transcribed providence inquiry was marked AE XXXIX.]
You're talking about page 18 of Appellate Exhibit XXXIX?
CDC: Yes, Your Honor, page 18, beginning on line 15; I believe the trial counsel was going to
begin his portion somewhere high on page 19.
MJ: Captain O'Beime, what are you intending to introduce?
TC: Ma'am, we're intending to introduce, first and foremost, lines 10-12 of page 15 they're
tabbed, Your Honor.
MJ: (Reviewing AE XXXIx'] Alright.
TC: And then page 19, lines 3-18.
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1 Just for clarity-sake, Your Honor, the government is offering it as the statement of a party
2 opponent in our rebuttal case.
3 MJ: What paragraph are you looking at for the rule of completeness?
4 CDC: Well, that a preliminary matter; the rule of completeness would be the paragraph that
5 begins on page 18, line probably with your line 15 there; then onto the next page --­
6 MJ: Well, wouldn't it begin on line 13? I'm asking the question, "How did this affect your
7 decision?"
8 CDC: Yes, ma'am, we can include line 13 as well-line 13 through the end ofthe page, and
9 then to the top two lines of page 19, because 1 think his request is going to begin on line 3 there.
10 MJ: Government, what's your position on that?
11 TC: Your Honor, our position is that there is a problem detennining what needs to go in to
12 give context; it is a 40-page long statement, and we believe there were specific statements as to the
13 result ofthe advice he got, and his mindset after he got the advice. That was clear in the unsworn
14 statement. The portion that was inconsistent was that there was some continuing belief that maybe he
15 should do this, or he was confused, or it was bad advice that he relied on.
16 The portion that the government is trying to offer on page 19 is the court's extensive
17 clarification. "Let me get this straight. Although that was what you believed, you understood that Mr.
18 Jensen told you, 'I cannot advise you to break the law,' and that both of your counsel at that point had
19 told you that, despite whatever Mr. Jensen's motives were." And the accused clarified, "No, 1 didn't
20 care what Mr. Jensen thought. I was doing this for my own reasons."
21 The government doesn't believe that we need to include the previous paragraph or page,
22 or two pages, or three pages, and that becomes a slippery slope ofhow much ofthe providence inquiry
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do we introduce. It is the government's rebuttal; we've highlighted a particular part that we believe
rebuts. We don't necessarily believe fairness requires that we then continue to excerpt and put in
additional parts.
CDC: Your Honor, it is a little bit - it is a multi-part issue here. First of all, as a threshold
matter, just as a threshold matter, MRE 106 requires that "If requested by the opposing party, additional
material," not 42 pages, but another paragraph, has to be introduced with it, if it provides context.
That's the threshold matter.
But when you do that, when you put it in context, and read in context, nothing in those
sections, including the one on the earlier page - the two lines on the earlier page - and then pages 18 and
19, when put in context, there is nothing there inconsistent with the totality ofthe unsworn statement
yesterday, because a lot of ground was covered.
As far as the rules are concerned, in order for it to be legitimate rebuttal, it has to be
contrary, or like an inconsistent statement, something to rebut what he said yesterday, drawing on
something he said the day before, has to be different - it has to be the opposite.
My point is, you could look through this transcript of what we did on Tuesday, and you
could find one line where he said something, because it was necessary for the providence inquiry, that
would never come out because when fleshed out, you gained, Your Honor, a full understanding ofthe
factual basis for the plea, understanding yes, there was some concern here, it was later clarified here; the
advice of the counsel was this, and then it was this, and together it was this. That all came out here; that
all came out yesterday.
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My point is, if we're following the rules of what is rebuttal you can rebut a statement of
fact - there is no difference in fact between what he said in providence and what he said on the stand
yesterday.
It is really a specious argument, and really unfair to be able to say, 'We just want to take
this little section here, because we believe that overall, based on what we heard yesterday, this is
inconsistent with the position he took yesterday.' But read in context, it is not inconsistent at all. All of
that information is the same.
In order to keep the record clean, in order to keep the members not confused - they're
going to be wondering why they have to read this, because they're going to see it as the same thing, too
- I think it is better just to keep this simple. The issues are before the court. The gravamen of the
offenses is before the court. This is just a sentencing hearing. I think this goes beyond what the rules
allow.
TC: Your Honor, as you're well aware, you specifically advised the accused that his
providence inquiry statements could be used in rebuttal in sentencing - not on the case-in-chief, but in
the event that he said, in a sworn or unsworn statement, something that contradicts, directly or indirectly.
Counsel's argumentative inferences about the totality of the statement and what it means
is not the standard; the standard is whether he said something that is fairly rebutted by what he said
previously. But the accused does not get to do is make the direct statements to plead guilty in his
providence inquiry, and then say things that are inconsistent in his unsworn statement.
What counsel just said is that they are the same, and they won't understand why they're
looking at it. It's got to be one or the other either there is some prejudice because it is different, and in
that case, fairly considered - not unfair prejudice, but prejudice because they're not consistent - or
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they're the same. Counsel is not objecting to the three lines that the government offered from the first
page; this is not an unfair clipping of what he said. This is extensive questioning by the court, and
extensive by the clarification by the accused. The government believes it is clearly fair rebuttal
evidence, and not required in fairness to then take other excerpts. It speaks for itself.
MJ: I will allow the government to introduce their rebuttal, because I think it is fair rebuttaL
However, I am going to allow the defense to include the prior paragraph, starting with line 13 on page
18, because I am basically rephrasing what he said on page 19.
Under those parameters, I'll allow it to come in. We can either introduce the whole thing
by the government; or do it by the rule of completeness, like you just ~ ~ - d , I
CDC: Yes, Your Honor, I think they should introduce the whole thing, and it is just one exhibit.
TC: Understood, Your Honor, the government will add that portion to what we plan on
marking as a prosecution exhibit during the next recess, and we'll have it prepared to admit.
MJ: Is there any other rebuttal evidence that we the government wants to introduce?
TC: Can we have a moment, Your Honor?
MJ: Yes.
CDC: While he has his moment, Your Honor, I just want to make it clear for the record that we
continue to object; we're not conceding the point that it is improper rebuttaL
MJ: Understood.
CDC: Thank you.
TC: No further rebuttal from the government, Your Honor.
MJ: The government did not request judicial notice of anything?
TC: No, Your Honor.
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MJ: Why don't we move on to the defense motion to have Specifications 1 and 2 of Charge II
considered as multiplicious for sentencing?
What is the government's position - first of all, what is the defense position or reason for
that?
CDC: Your Honor, we'll rely on the argument I made before; that is simply that the government
is not permitted to multiply charges, or multiply offenses, by giving the same order over and over again
to the same person. When the goal is to show up at one place, one meeting, as Colonel Roberts testified,
issuing a verbal order and then issuing a written order, all to meet the same day again, just to
analogize, it doesn't seem, on its face, to be unreasonable for - I'm not saying it is unreasonable for the
colonel to say, 'Somebody go tell Colonel Lakin to come see me.' And then when he misses the
meeting, he says, 'Apparently, he doesn't get it. Maybe he doesn't understand that it is an order. So I'm
going to issue a written order, a two-line order, that says, you show up at 1700.'
If he had issued written orders every 10 minutes, the government might be able to bring
in a charge sheet with continuing violations of orders. So, the fact that it is only two doesn't mean it is
any more permissible than there being 10 or 20 separate orders for Lieutenant Colonel Lakin to show up.
MJ: Are you arguing to me that they're multiplicious for findings?
CDC: No, ma'am, I'm arguing that they're multiplicious for sentencing.
MJ: Government?
ATC: Ma'am, the government does not believe that they're an unreasonable multiplication of
charges for sentencing because, referring to Rule 1 003( c )(1 )(C), they each require proof of an element
that is not required to prove the other. In one case, we have Colonel Judd giving a verbal order to the
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1 accused to be in Colonel Roberts' office at 1345; in the other case, we have the written order from
2 Colonel Roberts given to the accused to be in Colonel Roberts' office at 1700.
3 Just with those elements, there is separate proof for each. But going on.to the Quiroz
4 analysis, which is the CAAF case on point, the specifications also don't unreasonably exaggerate the
5 criminality because it is not the situation that the defense was stating. This isn't the case where they
6 said, time and time again, go, go, go. First, there was the order from Colonel Judd to go to the office;
7 and then after that order, it came out on the providence inquiry, five or six times, Colonel Judd talked to
8 him, then he gave him a counseling statement in writing, warned him of what may happen ifhe does not
9 obey. There was plenty of opportunity to change his mind.
10 After that, the written order was given, just as a follow-up to say, 'This is serious. You
11 need to obey this order.' It's not the case where it is,'Go ... nothing ... go... nothing ... ' There is a distinct
12 set of occurrences that occurred between the first order and the second order.
13 The government does not believe they're multiplicious for sentencing, ma'am.
14 MJ: The court is prepared to rule on this issue. The court took this under advisement over the
15 evening recess.
16 Although the defense has not requested that the offenses be considered an unreasonable
17 multiplication for findings, based on the facts of this case, the court is considering United States v.
18 Quiroz ­ there are factors, five of them ­
19 Did the accused object at trial? Yes.
20 Is each charge and specification aimed at a distinctly criminal act?
21 Does the number of charges and specifications misrepresent or exaggerate the accused's
22 criminality?
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Does the number of charges and specifications unreasonably increase the accused's
punitive exposure?
Is there any evidence of prosecutorial overreaching or abuse of discretion in the drafting
of these charges?
In this case, the facts are that on 30 March 2010, the accused indicated that he would no
longer obey military orders, and advised his chain of command. He made a specific decision not to obey
the oral order in Specification 1 of Charge II the order at 1345 on 31 March 2010, to report to Colonel
Roberts's office. He made a second specific decision not to obey the written order in Specification 2 of
Charge II to report to Colonel Roberts's office at 1700.
This is not a case where the chain of command had meetings every 10 minutes, and then
put it on a charge sheet, in order to increase the accused's punitive exposure.
Under the facts of this case, the two orders were distinct, separate offenses, and they are
not multiplicious for findings.
That said, in unreasonable multiplication of charges for sentencing, that has a different
analysis. Rule for Court-Martiall003(c)(1)(C) - Even if offenses are not multiplicious or an
unreasonable multiplication for findings, if they are the result of a single impulse or event, or if there is a
unity oftime, and the existence of a connected chain of events, depending on the circumstances of the
case, may be considered multiplicious for sentencing.
Although, once again, the court clearly finds they are not an unreasonable multiplication
of charges for findings, the court will grant the defense motion to consider them multiplicious for
sentencing.
That being said, what do the parties believe the maximum punishment in this case is?
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TC: Your Honor, total forfeitures; confinement for 36 months; and a dismissal from the
service.
CDC: We agree, Your Honor.
MJ: The government is not interested in a fine?
TC: No, ma'am.
MJ: Have both sides had an opportunity to review the proposed sentence worksheet in this
case?
CDC: No, Your Honor.
TC: Your Honor, it was marked as an appellate exhibit [AE XL]; we can certainly have a
copy prepared for the defense. It was emailed to them.
MJ: Why don't you do that during the recess, if you would? I believe I received a draft ofit
by email; I didn't see anything wrong with it.
TC: Yes, ma'am, that's the same one that went out to the parties, but we'll print it again.
MJ: Print it out, give it to the defense for review, and then we'll clean that up before we ca1l
the members.
TC: Yes, ma'am.
MJ: Is there anything else we need to address at this time?
TC: Y es, Your Honor, a point of clarification - the court's ruling about completeness. I want
to make sure I have the page and line numbers exact. The government's intention was to begin with
page 19 at line 3; my understanding is the court clarified we should start at line 15 on page 18, "How did
this affect your decision to disobey the order," and then the paragraph following.
MJ: I believe that I said, "How does this," "this" starts on 1ine 13.
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CDC: That's what you said, ma'am.
MJ: Line 13. Understood, ma'am. We will redact the remaining portions and have line 13 of
page 18 through line 18 of page 19 marked as an exhibit.
CDC: There was one other matter, Your Honor, and that was the logistical concern about my
flight to Italy for my next court-martial.
MJ: This is a good time to address that. Why don't you set forth for the record what
transpired?
CDC: Yes, Your Honor.
I want to offer my apologies for having to even ask about this. I have two clients ­
Lieutenant Colonel Lakin and a young Navy sailor, based at Naval Air Station-Sigonella, Sicily. One is
Navy, one is Army, two jurisdictions. Both wanted to get the trials done before Christmas, so I certainly
agree with that, so we docketed this case. I know the court docketed it for 3 days, including today.
I realize that I was running into a potential conflict, but the only f l i g ~ t I could get this
close to Christmas to Sigonella before the trial was a flight today at 3 :30 from Reagan Airport.
I think we'll be done fairly soon this morning, but I want to apologize to the court once
agam. I've already covered this with my client. We will complete argument on sentencing, but if the
members do not reach a sentence before noon, I will have to depart at noon in order to have enough time
to make my flight. I know it is going to snow, too.
All that will be left will be the announcement of the sentence. I should note for the
record that Major Kemkes has been designated as the post-trial counsel to handle all post-trial matters:
those documents have already been completed.
If you'd like to cover that with Lieutenant Colonel Lakin­
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MJ: Do you have the post-trial and appellate rights marked as an appellate exhibit?
[The court reporter handed AE XLI to the military judge.]
We can go over it now, or we can go over it after we close the court for deliberations,
whatever works for the parties.
First off, Lieutenant Colonel Lakin, you just heard what Mr. Puckett has said. Remember
earlier when I advised you of your rights to counsel, you stated that you wanted to be represented by
both Mr. Puckett and Major Kemkes. Now,do you waive Mr. Puckett's presence after noon today?
ACC: Yes, ma'am.
MJ: Even ifthe members are not back with their sentence?
ACC: Yes, ma'am.
MJ: Have you discussed this with your defense team?
ACC: We did.
MJ: Are you comfortable with it?
ACC: Yes, ma'am.
MJ: So you specifically consent to letting him go at 12 noon today?
ACC: I do, ma'am.
MJ: I'm looking at what's been marked as Appellate Exhibit XLI, a post-trial and appellate
rights advisement.
Lieutenant Colonel Lakin, has your defense team advised you thoroughly ofyour post­
trial and appellate rights?
ACC: Yes, ma'am, they have.
MJ: Is that your signature there on page five?
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ACC: Yes, ma'am.
MJ: You have a copy of this in front of you, is that right?
ACC: I do, ma'am.
MJ: Right above your signature is some contact information. Please take a look at that - you
don't have to let me know what it is - but is that accurate contact information where you can be reached
following these proceedings?
ACC: Yes, ma'am.
MJ: Did your defense counsel explain to you what matters you may submit to the Convening
Authority before he takes action in your case?
ACC: Yes, ma'am.
MJ: Did they explain to you that under Rule for Court-Martial 1105 and 1106, you can submit
any matters to the Convening Authority to include, but not limited to, personal letters and documents,
letters and documents from other people, requests for deferment and waiver of forfeitures, and any other
matter that you want the Convening Authority to consider before taking action on your case?
ACC: Yes, ma'am.
MJ: Do you understand that it is your responsibility to keep in contact with your defense team
to let them know what you desire in this regard?
ACC: I do, ma'am.
MJ: Do you understand that if your defense counsel can't find you, it would be difficult for
them to put a proper package together on your behalf?
ACC: Yes,ma'am.
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1 MJ: If your defense team tries to contact you but they are unsuccessful, do you authorize them
2 to submit clemency matters on your behalf to the Convening Authority?
3 ACC: Yes, ma'am.
4 MJ: Do you have any questions about your post-trial and appellate rights?
5 ACC: I do not, ma'am.
6 MJ: Major Kemkes, are you going to be responsible for post-trial matters in this case?
7 DC: Yes, Your Honor.
8 MJ: So, the Staff Judge Advocate's Post-Trial Recommendation will be served on you?
9 DC: Yes, ma'am.
10 MJ: Are there any other matters that we need to discuss before we recess the court?
11 CDC: Just a point of clarification, ma'am. I'm looking at the sentence worksheet here; you
12 asked the government a couple of times if they were seeking a fine. I notice a fine is on the sentence
13 worksheet.
14 TC: That may be a previous version, ma'am. We'll make sure that's removed, and we'll
15 present an updated version for the court and counsel to review.
16 MJ: Other than the fine, is there any other objection?
17 CDC: No, Your Honor, it all looks great.
18 MJ: Why don't you go ahead and delete the fine portion; when we come back on the record,
19 we'll go ahead and have that marked as an appellate exhibit.
20 I have draft copies of my - I'm going to use the standard sentencing instructions, based
21 on the maximum punishment that we just described on the record. Are there any special instructions
22 requested by the parties?
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TC: Nothing from the government, ma'am.
CDC: No, Your Honor.
[The sentencing instructions were marked AE XLII.]
MJ: The court is in recess.
[The session was recessed at 0909, 16 December 2010.]
[The session was called to order at 0927, 16 December 2010.]
MJ: This Article 39(a) session is called to order.
Let the record reflect all parties present when the court last recessed are again present in
court; the members are absent.
Have both sides had an opportunity to look at my proposed sentence instructions?
TC: Yes, Your Honor.
CDC: Yes, Your Honor.
MJ: Any objections to them?
TC: No, ma'am.
CDC: No, Your Honor.
MJ: Have both sides had an opportunity to look at the final sentence worksheet, Appellate
Exhibit XL?
TC: Yes, Your Honor, we've reviewed the sentence worksheet.
CDC: We have, too, Your Honor, it's fine.
MJ: I understand that the members are all present. Is there anything else we need to address
before we call the members?
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1 TC: No, Your Honor. The government intends to offer the two exhibits in rebuttal that we
2 mentioned, but we can do that on the record in front of the members, or we can do that now what ever
3 the court prefers Prosecution Exhibits 26 and 27 [for ID], the redacted statements. I don't believe we
4 have, on the record, in front of the members, discussed whether the government was presenting a
5 rebuttal case.
6 MJ: No, we have not. Do you want me to pre-admit them?
7 TC: Whatever the court prefers, Your Honor.
8 MJ: Defense, your objections are noted on the record. Any other objections to Prosecution
9 Exhibits 26 and 27 for identification?
10 CDC: No additional objections, Your Honor.
11 MJ: Prosecution Exhibits 26 and 27 are admitted.
12 Is there anything else?
13 TC: No, ma'am.
14 CDC: No, Your Honor.
15 MJ: Please call the members.
16 [END OF PAGE]
17
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1 [The members returned to the courtroom at 0930, 16 December 2010.]
2 MJ: Let the record reflect the members are present.
3 Does the government have a rebuttal case?
4 TC: Nothing in addition to the exhibits already entered, Your Honor.
5 MJ: The government rests?
6 TC: Yes, Your Honor, the government rests.
7 MJ: Members of the court, I will give you substantive sentencing instructions; that will be
8 followed by argument by counsel, and then I will give you procedural instructions on voting on the
9 sentence. Then we will close the court for your deliberations. You'll also have a written copy ofmy
10 sentencing instructions.
11 Members ofthe court, you're about to deliberate and vote on the sentence in this case. It
12 is the duty of each member to vote for a proper sentence for the offenses of which the accused has been
13 found guilty. Your determination of the kind and amount of punishment, if any, is a grave
14 responsibility, requiring the exercise of wise discretion.
15 Although you must give due consideration to all matters in mitigation and extenuation, as
16 well as to those in aggravation, you must bear in mind that the accused is to be sentenced only for the
17 offenses of which he has been found guilty.
18 The offenses charged in Specifications 1 and 2 of Charge II are multiplicious for
19 sentencing. Therefore, in determining an appropriate sentence in this case, you must consider them as
20 one offense.
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You must not adjudge an excessive sentence in reliance upon possible mitigating action
by the Convening, or higher, Authority. A single sentence shall be adjudged for all offenses of which
the accused has been found guilty.
The maximum punishment that may be adjudged in this case is ­
Forfeiture of all pay and allowances;
Confinement for 3 years; and
Dismissal from the service.
The maximum punishment is a ceiling on your discretion. You are at liberty to arrive at
any lesser legal sentence.
In adjudging a sentence, you are restricted to the kinds of punishment which I will now
describe, or you may adjudge no punishment.
There are several matters you should consider in detennining an appropriate sentence.
You should bear in mind our society recognizes five principal reasons for the sentence of
those who violate the law. They are:
Rehabilitation of the wrongdoer;
Punishment of the wrongdoer;
Protection of society from the wrongdoer;
Preservation of good order and discipline in the military; and
Deterrence ofthe wrongdoer, and those who know of his crimes and sentence, from
committing the same or similar offenses.
The weight to be given to any or all ofthese reasons, along with other sentencing matters
in this case, rests solely within your discretion.
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1 This court may adjudge a reprimand, being in the nature of a censure. The court shall not
2 specify the terms or wording of any adjudged reprimand.
3 As I've already indicated, this court may sentence the accused to confinement for a
4 maximum of 3 years. A sentence to confinement should be adjudged either full days, full months or full
5 years; fractions, such as one-half or one-third, should not be employed. So, for example, confinement
6 for a month and a half should be announced as "confinement for 45 days." This example should not be
7 taken as a suggestion, only as an illustration of how to properly announce your sentence.
8 This court may sentence the accused to forfeit all pay and allowances. A forfeiture is a
9 financial penalty which deprives an accused of military pay as it accrues. When determining the amount
10 of forfeiture, if any, the court should consider the implications to the accused, and to his family, of such
11 a loss of income. Unless a total forfeiture is adjudged, a sentence to forfeitures should include an
12 express statement of a whole dollar amount - meaning no cents to be forfeited each month, and the
13 number of months the forfeiture is to continue.
14 Any sentence which includes either confinement for more than 6 months, or some
15 amount of confinement along with a dismissal, will require the accused, by operation oflaw, to forfeit
16 all pay and allowances during the period of confinement. However, if the court wishes to adjudge any
17 forfeiture of pay andJor pay and allowances, the court should explicitly state the forfeiture as a separate
18 element of your sentence.
19 Counsel may make reference to the availability, or lack thereof, of monetary support for
20 the accused's family members. Again, by operation oflaw, if you adjudge either confinement for more
21 than 6 months, or confinement for 6 months or less and a punitive discharge, then the accused will
22 forfeit all pay and allowances due him during any period of confinement.
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However, when the accused has dependents, the Convening Authority may direct that any
or all forfeiture of pay which the accused would otherwise, by law, be required to forfeit be paid to the
accused's dependents for a period not to exceed 6 months. This action by the Convening Authority is
purely discretionary; you should not rely upon the Convening Authority taking this action when
considering an appropriate sentence in this case.
You are advised that the stigma of a punitive discharge is commonly recognized by our
society. A punitive discharge will place limitations on employment opportunities, and deny the accused
other advantages which are enjoyed by one whose discharge characterization indicates that he has served
honorably. A punitive discharge will affect the accused's future with regard to his legal rights,
economic opportunities and social acceptability.
In addition, a punitive discharge terminates the accused's status, and the benefits that
flow from that status, including the possibility of becoming a military retiree and receiving retired pay
and benefits. On the issue of the possibility of becoming a military retiree and receiving retired pay and
benefits, you should consider the evidence submitted on the factual and legal obstacles to retirement
faced by the accused.
This court may adjudge a dismissal. You are advised that the sentence to a dismissal of a
commissioned officer is, in general, the equivalent of a Dishonorable Discharge of a noncommissioned
officer, a warrant officer who is not commissioned, or an enlisted soldier. A dismissal deprives one of
substantially all benefits administered by the Department of Veterans Affairs and the Army
establishment. It should be reserved for those who, in the opinion of the court, should be separated
under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting
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1 such severe punishment. Dismissal, however, is the only type of discharge the court is authorized to
2 adjudge in this case.
3 Finally, if you wish, this court may sentence the accused to no punishment.
4 In determining a sentence, you should consider all facts and circumstances of the offenses
5 for which the accused has been convicted, and all matters concerning the accused, whether presented
6 before or after your findings. Thus, you should consider the accused's background, his character, his
7 service record, his combat record, all matters in extenuation and mitigation, and any other evidence he
8 presented. You should also consider any matters in aggravation.
9 The court will not draw any adverse inference from the fact that the accused has elected
10 to make a statement which is not under oath. An unsworn statement is an authorized means for an
11 accused to bring information to the attention of the court, and must be given appropriate consideration.
12 The accused cannot be cross-examined by the prosecution or interrogated by the court members, or me,
13 upon an unsworn statement, but the prosecution may offer evidence to rebut any statement of fact
14 contained in the unsworn statement. The weight and significance to be attached to an unsworn
15 statement rests within the sound discretion of each court member. You may consider that the statement
16 is not under oath; its inherent probability or improbability; whether it is supported or contradicted by
17 evidence in the case; as well as any other matter which may have bearing upon its credibility. In
18 weighing an unsworn statement, you are expected to use your common sense, and your knowledge of
19 human nature and the ways ofthe world.
20 A plea of guilty is a matter in mitigation which must be considered along with all other
21 facts and circumstances of the case. Time, effort and expense to the government usually are saved by a
22 plea of guilty. Such a plea may be the first step towards rehabilitation.
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During argument, counsel may recommend that you consider a specific sentence in this
case. You are advised that arguments of counsel and their recommendations are only their individual
suggestions and may not be considered as the recommendation or opinion of anyone other than counsel.
Following the arguments of counsel, I will give you procedural instructions regarding
your sentence deliberations and voting.
Trial counsel?
TC: Yes, ma'am.
Ma'am, members of the panel, the accused refused to deploy as a tool to score points for
a political cause. He planned to commit serious crimes that victimized his unit, the Officer Corps, and
the United States Army; and then he made a spectacle of those crimes, and he is not sorry.
The government only gets this one opportunity to argue upon sentencing, and there are
several important points the government wants to address.
First and foremost, the facts in this case are clear. The government has clearly shown the
circumstances of these offenses and the impact on the victims. The accused, in his unsworn statement,
showed you his lack of remorse. The accused told you, and counsel may tell you, that he is simply a
man of principle. He had constitutional concerns, these were not addressed, and they required him to
ask certain questions. The Army, and the chain of command, didn't properly answer those questions,
and he was left with no choice. That is not what happened here.
First and foremost, make no mistake these were not illegal orders. You have the duty
to obey lawful orders, unless they direct you to commit a crime. He was not ordered to execute
prisoners. He was not ordered to kill civilians. He received lawful orders to do his job. You have a
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responsibility to obey lawful orders, even if you disagree with them, or you don't approve of the person
giving it to you.
It doesn't matter how many times the accused says the word "Constitution;" don't let that
cloud what he did, and what is at issue in this case.
So, the defense says, 'What else could the accused do? These questions wouldn't go
away. He asked for answers, and nobody answered him, so he had no choice.' "No" is an answer.
"That's not for your concern" is an answer. "You still have a responsibility to follow your orders" is an
answer. He just didn't like the answers he got. He wanted proof that satisfied him that he had a
responsibility to obey his orders before he would do what he was told.
You've heard testimony about his 138 complaints in this case, and you'll get a chance to
review the 138 complaint that was submitted to his company commander and to General Casey. On 20
November 2009, he wrote to General Casey in a 138 complaint that he does not believe there is
sufficient evidence to conclude that Barack Obama is a natural-born citizen, etcetera. 441 request that
General Casey fonnally address all officers of the Anny with a statement, and verifiable evidence, that
we are not in violation of our sworn oath." He concluded his statement by saying, "If this complaint
cannot be addressed in a proper matter, I will have to conclude that my oath of office has been made
impossible for me to uphold by action or inaction of the US Anny. My oath and all contractual
agreements will be invalidated. I would retain the right to consider legal recourse to recover all pay and
future benefits that would be lost by the one-sided alteration/invalidation ofmy oath."
So, if General Casey didn't directly tell him that he had a responsibility to follow orders,
he was going to sue the Army for all future benefits. That's the 138 complaint that he submitted. You'll
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1 read the response, which clarifies that that's not what 138 is for General Casey is not your commander,
2 this is not the proper recourse for you. But he still wanted proof.
3 By March 2010, one thing is clear nobody else agrees that the Army and General Casey
4 have a responsibility to prove to the accused that there is lawful authority in the military. So, what
5 choice does he have? Well, he could resign. His concerns began in 2008. You heard Colonel Roberts,
6 "You can resign." What you can't do is go commit crimes. He could've gone to his commander,
7 quietly, in February 2010 when he received his deployment orders and said, 'Sir, I'm not asking you to
8 agree with me, but what I'm telling you is this. I have these sincere concerns, and this is a problem for
9 me. Please don't make me deploy. I'll take any other assignment. Please work with the chain of
10 command and come up with somebody else. I'm telling you plenty of time in advance to ensure there is
11 no impact on the Army. Please make sure that this doesn't become an issue.'
12 Colonel Roberts never met him until he told him 'I will have you drug to my office if you
13 don't follow my orders, so I can discover what you're about to do.'
14 Why would he not do that? Why would he not go and avoid the confrontation between
15 his deployment and what he says is his conscience? Because refusing the deployment was the plan all
16 along. Quietly resolving the issue with the chain of command doesn't get exposure to his concerns, it
17 doesn't create a spectacle. He said twice in his providence inquiry, "I wanted to raise the level of
18 visibility of this issue, so I disobeyed my deployed order."
19 He had other choices. He chose exactly this. It wasn't inevitable; it was premeditated.
20 He said in his video, "I have no choice but to invite my own court-martial." So he did. He found orders
21 that were serious enough that the Army would have to court-martial him ifhe disobeyed them, and
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disobeyed them on purpose. Now, he wants you to believe that he had no idea that this was going to
happen, no concept that we would be here today.
You heard Colonel Roberts testify. He did everything he could to prevent the accused
from committing these crimes. But repeatedly, he wouldn't see him; Colonel Roberts continued. Before
he had a chance to meet with him, he sent this counseling statement - you've seen the redacted version.
The unredacted version includes his addressing the accused's concerns. "Failure to follow your
reassignment and/or deployment orders may result in adverse action, including court-martial. If found
guilty at a court-martial, you could be sentenced to dismissal from the service, which is akin to a
Dishonorable Discharge; forfeiture of all pay and allowances; and confinement for a period of months or
years in a military prison." He was asked in his unsworn, "Did you ever consider you'd actually go to
jail?" "No. This is the first time that ever occurred to me."
Once this was delivered, Colonel Roberts made sure that he gave it to him in person, and
almost begged him not to do this. You heard him testify, 'I told him about his responsibilities. I told
him about the oath that officers take. I asked him to think of his family. I asked him to think of his
future. I asked him to think of his unit and the Anny.' The accused heard all of that, and he ignored it
and did it anyway. And he wants you to believe he had no idea that this was going to happen.
He said in his unsworn statement, "I wish I had been offered more assistance and better
guidance."
You heard, members of the panel, what Colonel Roberts said about the responsibilities of
officers. Mr. Puckett asked the accused, and the accused, "I thought I was leading by example."
In 1962, General MacArthur gave a speech to the cadets at West Point. It is often cited as
the "Duty, Honor, Country" speech. OCS candidates have, in the past, been required to memorize the
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speech; it so fundamentally describes the responsibilities of an officer. In it, he said, "Your mission
remains fixed, determined, inviolate. It is to win our wars. Everything else in your professional career
is but corollary to this vital dedication. All other public purposes, all other public projects, all other
public needs, great or small, will find others for their accomplishment. You are the ones who are trained
to fight. Yours is the profession of arms. The obsession of your public service must be duty, honor,
country. Let civilian voices argue the merits or demerits of our processes of government. These great
national problems are not for your professional participation or military solution. Your guidepost stands
out like a ten-fold beacon in the night. Duty, honor, country."
The accused took an oath to defend the Constitution, yes, as an officer in the Army. The
responsibilities of the office upon which I am about to enter. The Army has laws and institutions, and
rules, and standards.
Because the accused would not fight when he was told, someone else had to go in his
place. Did Major Dobson say to the command, "I have some questions about why my deployment is
getting moved up, and I don't have dwell time with my family, and I can't attend these courses, and I'm
not going until someone explains to me why I need to go." No. He said, "Understood, sir. When do I
leave?" Monday.
Because the accused would not do his duty, the 1I32d suffered in combat. The accused is
a doctor. He is supposed to be helping soldiers and saving their lives, not helping Safeguard our
Constitution get access to the President's birth certificate.
Not once in his unsworn statement did the accused mention the Dobsons, or any member
ofthe unit he left at the eleventh hour before a deployment. In an hour, he did not mention them once.
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The military judge has instructed you that there are five purposes for sentencing.
Punishment of the wrongdoer and rehabilitation of the wrongdoer punishment speaks for itself, that the
accused's actions were serious crimes and he needs to be punished; rehabilitation needs to make you see
that they were wrong, to repair his relationship to society and the Anny so he can be rehabilitated, so he
doesn't leave here thinking he did the right thing, without remorse. He has shown no real remorse.
He was asked by his counsel, "Why should this panel not dismiss you?" His answer? "I
don't want it to end this way." Asked about the deployment, "It crushed me not to deploy. I cheated
myself out of a deployment. I wish I had been offered more assistance and better guidance." I, I, I, I,
me, me, me, me, for an hour; except when it came time to talk about who was to blame for what he did;
then it was the Aberdeen legal assistance office, congressional staffers, and General Casey. Had
General Casey brought him in and sat him down with his attorney, this wouldn't have happened. The
only time he didn't talk about himself was when he talked about who was actually responsible.
Most of all, he talked about Mr. Jensen. Let's talk briefly about that. In his unsworn
statement to you, the accused said he received conflicting advice and encouragement and support from
Mr. Jensen, that sometimes, he'd tell him to do it, and sometimes he'd tell him not to do it.
What's just been admitted, and you'll receive, are portions ofhis providence inquiry from
when he pled guilty. Specifically, page 15, lines 10,11, and 12: "Military Judge Just to clarify, at the
time, before 1345 on the 31 st of March, you had been advised by both of your counsels that you should
obey that order because it was a lawful order?" "Yes, rna' am." Pages 18 and 19, he discusses what he
said in his unsworn statement: "Major Kemkes was only available by phone. Mr. Jensen was available
by phone." He was getting this conflicting advice. The military judge clarified, "So, am I
understanding correctly what you're saying? Are you telling me that Mr. Jensen told you, before you
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1 made the decision to disobey the order by Lieutenant Colonel Judd to go to Colonel Roberts' office - are
2 you saying that at some point, Mr. Jensen told you that even though it would be consistent with yours
3 and his goal to get the documentation that you were seeking on President Obama, to disobey the orders,
4 he couldn't ethically tell you to disobey a lawful order as an attorney. Is that what I'm hearing you tell
5 me? Even though it would be consistent with the goals that you both sought?" The military judge said,
6 "I'm not trying to put words in your mouth. I want you to tell me what it is happened." His answer,
7 "Ma'am, I would agree with that, understanding that it is not Mr. Jensen's - I didn't care what his goals
8 were. I sought some proof oflegitimacy by myself, and it was my actions." The military judge, "I
9 understand that. When you made the decision to disobey the order, had you been advised both by Mr.
10 Jensen and Major Kemkes and that you'd be disobeying a lawful order?" "Yes, ma'am." "Armed with
11 that advice, are you telling me that you made the choice to disobey the order anyway?" "Yes, ma'am."
12 Since November 2009, whatever Mr. Jensen said, the accused had been receiving sound
13 legal advice from a field grade officer in the Army Trial Defense Service, "You need to obey your
14 orders. You need to deploy. You need to go to your brigade commander's office. You're gonna get in
15 big trouble." And he came here and said, "I wish I had been given better advice."
16 The accused's refusal to take responsibility means that his rehabilitative potential is low,
17 and your sentence must be firm enough to rehabilitate him.
18 In addition, preservation of good order, morale and discipline, and deterrence of the
19 wrongdoer and those who know ofhis crimes and sentence from committing similar crimes - members,
20 the accused went to great lengths to ensure that Army and society would know ofhis misconduct.
21 He received the counseling statement from Colonel Roberts on 31 March when he
22 wouldn't go to his office. It was posted on the internet on Safeguardourconstitution.com on April 5
th
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1 that everybody would know, after seeing his YouTube video, exactly what he was getting himself into.
2 He posted the video on 30 March, "1 intend to disobey all orders." It has been viewed more than
3 200,000 times. Five days later, although he wouldn't discuss the counseling statement, that was posted
4 on the internet, so there'd be no mistake exactly what he was getting himself into.
5 You're obviously aware of the attention that this case has gotten. He has gone to great
6 lengths to make sure that people would be aware of what he did, and now, they must be aware of his
7 sentence. Your sentence must send a message. You can write the headline. What should that headline
8 say? To ensure that others know not to do what the accused did. He told you he is getting support.
9 People are coming to him and saying, 'We agree with you. We agree with what you're doing,' soldiers
10 in the Anny. People in society who want to know that the Army is serving them, doing their duty,
11 following lawful orders, what is your sentence going to say to those who know ofthe accused's crimes?
12 "Army Lieutenant Colonel convicted ofrefusing lawful order to deploy for political
13 reasons gets no punishment and retires with lifetime benefits." What would that sentence say to Private
14 Roberts, who is reluctant, maybe scared, to deploy, and is looking to his officers and senior NCOs, his
15 leaders, to set the example? What does it say to Lieutenant Roberts about the Army Values of integrity
16 and selfless service in the Officer Corps? What does it say to Colonel Roberts and other senior leaders
17 who have repeatedly left their families to deploy and do their duty, wherever it may be? Does that
18 sentence say that good order, morale and discipline were preserved? Is that a deterrence to the accused
19 and others to commit these crimes? No.
20 The government asks you to send a message. "Army Lieutenant Colonel convicted of
21 refusing lawful orders to deploy for political reasons Dismissed from the service and sent to jaiL"
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The accused earned a dismissal when he turned his back on his duties as a soldier and as
an officer. He turned his back on his unit and on the United States Army. The essence of being a
soldier is when you receive an order that is lawful you might disagree, but once you understand it is an
order you put aside your personal misgivings and you execute." He is not a soldier. He will not be a
soldier.
Now, he says, "I'll deploy." That's fine, because he sees he is about to be sentenced.
"Now, I'll follow orders." On 3 September 2010, long after this process was begun, he was asked in a
radio interview, "If you had it to do all over again, would you?" "Without a doubt" is what he said.
Beyond the dismissal, the accused earned a jail sentence when he decided to take that
refusal of his basic responsibilities and post it on YouTube to create a spectacle that has embarrassed the
Army, hurt his unit, and set a terrible example for officers and soldiers everywhere. Because he would
not serve for 12 months in Afghanistan, he should serve 24 months in jail - 2 days for every day the
1/32d spent at the Pakistan border without him.
Members, the defense may argue that the accused got bad advice. You know the
evidence. Major Kemkes told him not to do this. He admitted under oath that Mr. Jensen even told him
not to do this. Colonel Edwards told him not to do this. Colonel Roberts almost begged him not to do
this. It is his fault and nobody else's fault.
The defense, as I said, may argue that now, he wants to serve. Now, he wants to deploy.
But in his YouTube video, he told the world, "I am doing this at great peril to my career and future." He
knew exactly what he was doing, and he did it anyway.
At the end of his unsworn statement, after answering questions for an hour, he was asked
ifhe had anything else he wanted to say, anything else. Anytime he was speaking about his
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1 justifications, or the President, he would speak at great length. Anytime he was taking responsibility, he
2 was being fed the questions by his counsel. When he was given the opportunity, "Is there anything else
3 you want to say?" "I am sorry what has become of this." No mention of concern for the victims in this
4 case - the Dobson family, 1I32d, the Officer Corps, the Army - of what has become of this.
5 Now is your opportunity to let the accused hear the punishment that he invited and he has
6 earned. The government asks that you sentence him to no less than 24 months confinement and a
7 dismissal from the service.
8 MJ: Mr. Puckett?
9 CDC: Thank you, Your Honor.
10 Good morning, Madame President, members of the panel. It is always good to have a
11 big, strong man around.
12 That was a really good speech. I enjoyed it. I think most of the part about Dr. Lakin
13 talking to you yesterday was maybe written before Dr. Lakin testified, because I didn't hear all the
14 things that he apparently heard. We were all here, and you met Dr. Lakin.
15 Let me say a little bit about him, based on your introduction to him yesterday, and your
16 hour of getting acquainted with him. Have you ever met anybody quite like Dr. Lakin? You heard from
17 others who know him. We heard what a giving and compassionate person he is. We heard what a duty­
18 bound person he is. Did you observe his demeanor? Did you see anything, any hint, that he wasn't
19 speaking from the heart, that he wasn't telling you the truth, that he wasn't bearing his soul to you? Did
20 you see anything like that? Suggestions that he was fabricating or changing his positions that one
21 comment about, I asked him ifhe expected confinement, and he never expected that. That question and
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answer never happened. I don't know where he got that, but that didn't happen. He always knew there
was danger.
I believe that what we saw yesterday, or who we saw yesterday, was a kind,
compassionate, caring, duty-bound, very simple, and ultimately, extremely patriotic American.
Extremely patriotic. Because how can there be - how can there be a greater expression of patriotism
than to be willing to sacrifice your military career for what, at the time, you believe was a higher cause
the Constitution?
I'm not going to argue to you the merits of that argument. I just want you to think about
what he said, and think about how he thought about it.
I'll give you one other adjective for simple, kind, compassionate, what you see is what
you get, I'll take my off-duty time to use my manipulative skills to make you feel better, to relax your
back - all those things isn't he also one of the most naIve gentlemen you've ever met? A gentleman
who would trust just about anyone, would believe things that seem to make sense to him, and never
believe someone would lead him astray, because he trusts. He loves people. He loves soldiers.
The reason I remark about that is you may have never met someone like that in your
entire Army careers. He is not the average Army lieutenant colonel. He is not the average Army doctor.
I ask that you consider that in considering what goes behind the offenses he committed were his
motives. He talked about those a little bit. His motives were never to shirk hazardous duty - he'd been
on three prior deployments, he'd been to war before. It was never about that; he never said it was about
that.
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This notion of, 'This was the last choice 1 had. This was the only choice 1 had.' It wasn't
the only choice he had. We all know that. But Dr. Lakin thought it was. He very innocently and
naively thought it was. Why is that?
The Army didn't fail him. His leaders didn't fail him. The Chief of Staff of the Army
didn't fail him. He was simply looking at a problem through a prism that none of us have ever handled
before, much less looked through. Why would he even look through that prism? Because he had
questions and concerns. 1 would submit to you that it became an obsession for him. You've all heard of
obsessive compulsive disorder, we've heard of obsessive personalities, people who obsess about things.
1 obsess about people who can't get on an airplane fast enough and put their bag away and sit their butt
in their seat. I'm obsessed about that. 1 just can't understand it. 1 come from military training. We line
up single file, we move in, we sit down on the airplane, we strap into the web seats on the side, and the
airplane takes off. 1 don't get it how civilians don't get that. How selfish and inconsiderate they are!
That's my position.
His obsession ate away at him. You might say, 'J never had that concern.' Well, 1 didn't
either, but it was his concern.
So, imagine an American named Mr. Lakin. He is a robust, healthy individual. He PT's
every day, he eats healthily, he follows all the guidance that he reads about eating the right foods,
exercising, he's got a robust constitution. He is vigorous, he is lively. One day, he wakes up and he
doesn't feel well. The next day, he doesn't feel well. He doesn't have the same strong constitution that
he normally has. This goes on day after day after day, until he finally realizes, 'I need to see a doctor.
Can anybody recommend me a good doctor?' So he goes to see someone and he says, 'There's this
doctor in California. This doctor in California, 1 think, can treat your illness.' He goes to see the doctor
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in California, and he talks to the doctor in California. The doctor says, 'Well, you know, I'm not a
specialist, but I've done a lot of reading. I've done a lot of internet research. And I believe you have a
very rare fonn of cancer, and your constitution is being suppressed by this cancer. I'm not an
oncologist, I'm not a cancer specialist, but I think you have cancer. I happen to know about a special
treatment you can take. It is experimental. There only a few people who believe in it, but if you take
this treatment, which I think can save your life and cure the cancer, there may be very adverse side
effects to it, maybe adverse consequences to taking it, but it might be your only chance to save your
life.' And you say, 'Oh, my God, I could die.' You have these concerns about your mortality, but
you're not going to rely on a generalist, you're going to see a specialist, too.
The doctor's name, by the way, is Dr. Jensen.
So, you call up another doctor, who you've heard is an oncologist; he is a specialist in
this area, and his name is Dr. Kemkes. Dr. Kemkes says, 'Tell me your symptoms again. Let me
examine you.' 'Mr. Lakin, you don't have cancer. You don't need any treatment. Nothing is wrong
with you. Just go back to work, get some more sleep. Change your diet. Do something. You don't
have cancer. Don't take the treatment, because the treatment is dangerous. It has very adverse side
effects.'
But Mr. Lakin is so concerned about cancer once you hear a doctor say you have
cancer, you can begin to obsess about that, because you want that strong constitution again, and if you
think there's a cancer that's going to kill your constitution, you want to attack the cancer and kill it, even
ifthere is a risk - even if there is a risk associated with that, you do not want to die. That's the ultimate
fonn of surrender, if you die.
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1 So you begin to obsess about that cancer, and you say, 'Well, the specialist is telling me I
2 don't have cancer. I'd give that some credibility. But can I take the risk? What's the risk of choosing?
3 If I risk not getting treatment, and it turns out I do have cancer, I could die. I'm somewhat persuaded by
4 him, but I'm more persuaded and more concerned that I might have cancer, so I'm going to take the
5 recommendation of the guy who says I have cancer, because 1 don't want to die.'
6 It seems simple. It seems like something that is attractive and something that you might
7 do. You might say, 'I'm gonna go with the specialist, until somebody can prove to me I have cancer,
8 I'm not going to do anything because that sounds too risky to me. I'm not willing to risk those severe
9 adverse side effects. I'm going to believe that I don't have cancer.'
10 Folks, Dr. Lakin was so obsessed with his concern about the Constitution, about an attack
11 on the Constitution - which we all may dismiss as, 'There's just not evidence of that. That's not
12 something I'd ever be concerned about.' He was. Not only did Dr. Jensen talk to him about the cancer
13 and the cure, lots of other people believed in it, too. There were other people who entered the clinical
14 trials, and they're part of that clinical program that is testing that new treatment.
15 So, he was persuaded to go along, because he just was obsessed about it, and he is so
16 naIve that he believed it.
17 What did he mean when he says, "I wish I had better advice." He didn't mean, 'I wish
18 my commanders had given me better advice,' that's not what he meant. What he really meant was, 'I
19 wish 1 had never met Dr. Jensen Mr. Jensen. 1 wish I had had better legal advice that had convinced
20 me, as he has now been convinced.
21 What's different? What is different between April and March to now? What is different
22 is that he has switched doctors. He got a new doctor, and the new doctor educated him, and told him ,d
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about cancer, from the molecular level up. He came to understand that there wasn't any cancer. There
wasn't an illness in his constitution, in his personal constitution, from where he stood. Then he came to
realize that he was wrong. He was wrong to follow the advice of Dr. Jensen. That's all it is.
Dr. Lakin is a very simple, linear-thinking person, and he was the victim of an obsession.
He is cleared of that now. He would never say to you, 'If! had it to do over again, I'd do it over again.'
That was back when he thought he had cancer that he said that.
So, let's consider who Dr. Lakin really is. You know this from the witnesses - he is a
triple-certified physician in the Army, and he is an invaluable resource to the Army. Why would we
punish the Army by dismissing him? Why would we take one bad decision on one day of his career and
characterize over 17 years of service as dishonorable? Why would we do that?
Why wouldn't we make him work harder? Why wouldn't we put him on I don't even
know if Army policy permits this - why wouldn't we put him on the next deployment, and the
deployment after that? Maybe he'd have to formally waive the rest period that's supposed to be
provided to soldiers before they deploy? Maybe he'd have to waive that.
Why don't we send him to the worst assignments? Why don't we make him work offhis
debt to the Army? Why did we spend this many years and this much money training him - the Army
trained him, the Army paid for it - why would we throw that away? Are there other punishments we
can consider? Of course there are.
Let's deal with one right away, the most obvious one. What does a commander say when
he is talking about threatening to send somebody to a court-martial? 'Son, I'm gonna put you in jail.'
This court-martial has the authority to sentence Dr. Lakin to jail. What's the reason for jail? Well, it is
in your instructions. The military judge said it, and you'll read it. One ofthe principles of punishment
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1 is protecting society from the wrongdoer. Does the Army or society need protection against Dr. Lakin?
2 Well, ifhe was dealing drugs, I'd say yes. Ifhe was homicidal in any way, I'd say yes. Ifhe was a
3 violent person, I'd say yes. That's who jail is for. When society needs to be protected - here, we're
4 talking about the Army society - we segregate people from society, and because they're a danger.
5 If you didn't take anything else away from yesterday, at the heart of what you heard was,
6 'I was wrong. 1 made a huge mistake. This was wrong for me to do this. Had 1 simply known or found
7 out that this was crazy,' I'll say it - crazy, 'knowing what 1 know now, had 1 known that back then, 1
8 wouldn't have done it.'
9 Ladies and gentlemen, he gets it. He understands. Because now, standing here today,
10 this gentleman who cares about the Constitution has voted in his last election. He'll never be able to
11 own a firearm ---­
12 TC: Objection, Your Honor, facts not in evidence.
13 MJ: Sustained.
14 CDC: This court-martial has convicted Dr. Lakin with a general court-martial conviction. That
15 will be on his record the rest of his life. That's hard. That is hard. That is punishment. That is lifelong
16 punishment.
17 Do you think he'll ever be a colonel? No. How about we let the Army decide, the
18 personnel system decide, what his value is? They don't want to promote him. Maybe they separate him
19 in some other way? Maybe he goes to a board of inquiry and gets separated in some other way?
20 TC: Objection, Your Honor, not before the panel, improper argument.
21 MJ: Overruled.
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CDC: In other words, there is a choice between declaring all of his service dishonorable, and
letting HRC and the Secretary of the Anny detennine whether he ought to be administratively separated.
Consider that word "dishonorable" with his three deployments, and consider whether that
really is the appropriate thing to do.
This should not be an emotional decision for you; this should be a rational decision. In
addressing the rationale here, you have to understand what was going through his mind - his wrong­
headed mind - at the time.
He is back from that place. It's never been about lack of dedication to duty. It is just that
he perceived a mirage which he thought was a higher duty, but it was just a mirage. It seemed real to
him, but it was just a mirage. Don't label his service as dishonorable because of that. And please,
please, the defense implores you to consider his family at Christmastime. If there is no need to
warehouse him at government expense, because society doesn't need to be protected from him, then
please don't send him to jaiL
The little 3-year old cherub whose picture you saw should not have to visit Daddy in jail.
That doesn't serve any good Anny purpose. There are other punishments available to you. Certainly, a
written reprimand, which is one of the punishments you can adjudge, would be appropriate. Certainly,
some amount of forfeitures of pay would be appropriate. You could restrict him to the limits of his
place of duty - he has to stay at work. The judge will explain all those things to you.
He has got a federal conviction. We can't completely ignore what happened. But we're
constantly reminded, as we get a little chutzpah sometimes - we're constantly reminded by our peers
that when we leave the Anny, someone else will take our place. That's the old drop in the bucket, foot
in the bucket - you take your foot out, the water fills in. Ladies and gentlemen, when you leave the
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1 Anny, someone will take your place. If you can't make a deployment, someone will take your place.
2 The Army is set up to do that. Sometimes, doctors only deploy for 6 months anyway, and ifthey need a
3 general medical officer, any general medical officer will do.
4 It is not right that Majors Dobson had to move up their deployment schedule and get
5 ready more quickly. But we all know people, and maybe we're among them, who've had even shorter
6 notice for orders, and shorter notice for deployment, and that's just the Army. That is something that
7 could happen to anyone. Did his actions cause that? Absolutely. Absolutely. Did he personally
8 disrespect Colonel Roberts? No. Mr. Jensen did. Please do not hold that against Colonel Lakin. He did
9 not direct that or authorize that; that was Mr. Jensen's way of representing him.
10 So, I want you to think about all those things as you consider what would be an
11 appropriate punishment for Dr. Terry Lakin. This is not about sending a message, because one of the
12 things the prosecutor asked you to do was to send this harsh message - 24 months injail, a dismissal,
13 which is a Dishonorable Discharge for Dr. Lakin - so that other soldiers wouldn't do what he did. I
14 would submit to you that having met Dr. Lakin yesterday, this fine gentleman here, I submit to you that
15 Dr. Lakin is unique in his personality, in his background, in his approach to this issue, and in his
16 obsession. I submit to you that there are no other Dr. Lakin's out there for you to make an example of
17 him for. There is no other Dr. Lakin. There is no other Lieutenant Colonel Lakin. There is no one else
18 who would have been in the middle of this perfect storm of obsession, confusion, conflicting advice, and
19 this sense of moral duty, that, for a moment, for just a moment, that caused us all to be here, and caused
20 him to make one decision that resulted in the commission of what you now can count as three offenses.
21 I would also submit to you that the missing movement is simply the natural and probable
22 consequence of the real offense here. There's only one real offense here and one of the prosecutors
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even conceded this - what we're really concerned about is that he didn't report to the unit to deploy.
That is what this case is about.
A fallout from that was, 'If you're not deploying, then the airplane seat that's booked for
you doesn't get filled.' That's not the crime here. That's not what this is about. This is about that he
didn't go to Fort Campbell.
It is okay that the Army can charge it in multiple ways, that's fine. But that is what the
central issue is. Just understand that it was a misguided obsession that caused him to make this strange,
odd, inexplicable to us, decision.
So, don't think that you need to set an example for other soldiers. There are no other
soldiers like Dr. Lakin. Dr. Lakin has told you how sorry he is. He has told you how wrong he
understands this is. And he's told you that although he can't make things completely whole again,
because Major Dobson did have to deploy, he is ready to be used as the Army will use him. 1'd also
submit to you that good use of a triple-certified physician in the Army is not to warehouse him in a jail
cell - that is not good use. Don't make him work not at all; make him work harder.
All this time, throughout all this hoopla, he went to work every day and treated patients.
He didn't say, 'I'm not playing anymore.' He reported to work every day.
TC: Objection, Your Honor, facts not in evidence.
MJ: Overruled.
CDC: Tomorrow, at 7:30 in the morning, Dr. Lakin can be treating patients. He wasn't relieved
of his duties there's no evidence he was relieved of his duties. He goes back to the clinic and he treats
patients. He might go back with a reprimand; he might go back owing some money to the government
in forfeitures, as you could adjudge. Don't make him stop working; make him work harder. Make him
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work offhis debt to the Anny, because he does owe a debt to the Anny. There is no doubt about that.
Make him work it off.
Someone else will detennine - can detennine the Secretary of the Anny can detennine
whether or not he is going to be allowed to retire. But make him work his debt off. That will be true
justice for this offense.
I ask that you consider the uniqueness of Dr. Lakin, his compassion, his care, his sense of
duty, his over 17-year career. Please do not characterize that as dishonorable. And please do not
unnecessarily confine him, send him to jail because of this acknowledged horrible mistake that can be
addressed in other ways.
Merry Christmas.
MJ: Members of the panel, when you close to deliberate and vote, only the members will be
present. I remind you you must all remain together in the deliberation room during deliberations. I also
remind you that you may not allow any unauthorized intrusions into your deliberations. You may not
make communications to, or receive communications from, anyone outside the deliberation room, by
telephone or otherwise. Should you have need to take a recess, or if you have a question, or if you've
reached a decision, you may notify the bailiff, who will then notify me of your desire to return to open
court to make your desire or decisions known.
Your deliberations should begin with a full and free discussion on the subject of
sentencing. The influence of superiority in rank will not be employed in any manner to control the
independence of the members in the exercise of their judgment.
When you have completed your discussion, then any member who desires to do so may
propose a sentence. You do that by writing out on a slip of paper a complete sentence. The junior
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1 member collects the proposed sentences and submits them to the president, who will then arrange them
2 in order of their severity. You vote on the proposed sentences by secret, written ballot; all must vote,
3 you may not abstain. Vote on each proposed sentence in its entirety, beginning with the lightest, until
4 you arrive at the required concurrence, which is two-thirds, or six, members. The junior member will
5 collect and count the votes. The vote is then checked by the president, who shall announce the result of
6 the ballot to the members.
7 If you vote on all of the proposed sentences without arriving at the required concurrence,
8 you may then repeat the process ofdiscussion, proposal of sentences and voting, but once a proposal has
9 been agreed to by the required concurrence, then that is your sentence.
10 You may reconsider your sentence at any time prior to its being announced in open court.
11 If, after you determine your sentence, any member suggests that you reconsider your sentence, open the
12 court and the president should announce that reconsideration has been proposed, without reference to
13 whether the proposed reballot concerns increasing or decreasing the sentence. I will give you specific
14 instructions on the procedures for reconsideration.
15 As an aid in putting your sentence in proper form, the court may use Appellate Exhibit
16 XL, which the bailiff will now hand to Colonel Gerding.
17 [The bailiff did as directed.]
18 Extreme care should be exercised in using this worksheet and in selecting the sentence
19 form which properly reflects the sentence of the court.
20 If you have any questions concerning sentencing matters, you should request further
21 instructions in open court, in the presence of all parties to the trial. In this connection, you are reminded
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that you may not consult the Manual for Courts-Martial, or any other publication or writing not properly
admitted and received during this trial.
These instructions must not be interpreted as indicating an opinion as to the sentence
which should be adjudged, for you alone are responsible for determining an appropriate sentence in this
case. In arriving at your determination, you should select a sentence which will be served the ends of
good order and discipline, the needs ofthe accused, and the welfare of society.
When the court has determined the sentence, the inapplicable portions of the sentence
worksheet should be lined through. When the court returns, I will examine the sentence worksheet, and
the president will announce the sentence.
Do the parties have the exhibits that will go back to the members?
TC: We've agreed on them, Your Honor. The government has to reassemble them following
argument. If we could take a brief moment, or send them back after the panel is sent back for
deliberations?
The government used the exhibits in argument, so they're out of order, Your Honor.
CDC: Ours were published and unpublished yesterday.
MJ: Members of the panel, the same rules apply. Once you're in closed-session deliberations,
you may not make communications to, or receive communications from, anyone not in the deliberation
room, by telephone or otherwise. Would the members like a brief recess before we begin?
PRES: Yes, Your Honor.
MJ: How long would you like?
PRES: Ten minutes, Your Honor.
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MJ: Once again, please don't discuss this case, not even among yourselves, until we fonnally
close the court for your deliberations.
Court is in recess for 10 minutes.
[The members withdrew from the courtroom.]
The record will reflect the members have departed.
Is there anything we need to address before we recess the court?
CDC: No, Your Honor.
TC: Your Honor, we'll assemble the exhibits in order for the court.
MJ: Court is in recess.
[The court-martial recessed at 1030, 16 December 2010.]
[END OF PAGE]
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[The session was called to order at 1051, 16 December 2010.]
MJ: This Article 39(a) session is called to order.
Let the record reflect all parties present when the court last recessed are again present in
court; the members are absent.
Appellate Exhibit XLII are my sentencing instructions.
I understand the parties wish me to give an additional instruction with respect to the
video?
TC: Y es, Your Honor.
MJ: That's been marked as Appellate Exhibit XLIII. Do both sides agree with the instruction
in Appellate Exhibit XLIII?
CDC: Y es, Your Honor.
TC: Yes, ma'am.
MJ: Anything else we need to address before we call the members?
CDC: No, Your Honor.
TC: No, ma'am.
MJ: Where are the exhibits?
RPTR: [Indicates he has custody ofthe exhibits going to the members, and hands them to the
military judge.]
MJ: That'd be Prosecution Exhibits 1,2,3,4,6,8,9, 12, 13, 16,20,21,24,25,26 and 27;
and Defense Exhibits A-E.
CDC: Yes, Your Honor.
TC: Your Honor, there should also be Prosecution Exhibits 5, 8, 9, 10, 11, 12, 13 ---­
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MJ: Prosecution Exhibit 5? I don't have Prosecution Exhibit 5 here.
TC: I'm sorry - 25.
MJ: [PE] 25 is in.
TC: [PE] 22 is the CD, Your Honor, that should be in as well.
MJ: I'm sorry, Prosecution Exhibit 22 it is in.
TC: 8,9,10, 11, 12, 13 essentially, everything, Your Honor, except Prosecution 5, 7,14,15
and 23.
MJ: [Reviewing prosecution exhibits.] Okay.
TC: Obviously, Your Honor, I think you originally noted 1, 2, 3, 4 and 6 were the first ones
you stated.
MJ: Yes.
TC: Thank you, ma'am, sorry for the confusion.
MJ: There's several copies of this exhibit [DE A] that are going to go back?
CDC : Yes, Your Honor.
MJ: That would be Defense Exhibit A, several copies of the officer record brief.
Anything else we need to address before we call the members?
CDC: No, Your Honor.
TC: No, ma'am.
MJ: Please call the members.
[END OF PAGE]
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[The members returned to the courtroom at 1057,16 December 2010.]
MJ: Let the record reflect the members have returned.
Bailiff, if you would, please give Colonel Gerding a copy of my sentencing instructions,
as well as the exhibits that will go back with the members for their deliberations.
I have one additional instruction to give you all. One of the exhibits that you may consult
in your deliberations is Prosecution Exhibit 22, which is the video file on the compact disc. You've
been provided a computer in your deliberation room in order to access this file. If you choose to do that,
please don't examine any other file, ifthere any files on the computer, or use the computer for any
purpose other than viewing Prosecution Exhibit 22.
Can all of you follow that instruction?
MEMBERS: [Affirmative responses.]
MJ: Apparently so.
If you need any assistance with the automation, the bailiff can help you.
Once again, the same rules apply as when we closed the court for finding deliberations; if
you need a recess, if you have any questions, or once you've reached a sentence, let the bailiff know .
Before you leave the deliberation room, we actually have to come back here, formally open the court,
and then recess the court.
Are the members ready to close the court for sentence deliberations?
MEMBERS: [Affirmative responses.]
MJ: Is there anything else we need to address?
CDC: No, Your Honor.
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TC: [After conferring with co-counsel.] Ma'am, if as instructed, there should be no other
material in the deliberation room. Can we take a brief moment to take any magazines or reading
material the panel might have out prior to sending them in for closed deliberations? Or may we leave
those in place? I believe there's reading materials the panel members brought with them, and ifthe
court instructed that there's not to be any other material in there during deliberations, we can remove
those, or we can leave them - we wanted to ensure the court was aware that there was materials in there,
other than the evidence, and wanted to ask the court if we should take out any other reading material the
panel members have while they deliberate on the sentence.
MJ: Why don't we go ahead and do that, out of an abundance of caution.
PRES: Your Honor, are you talking about stuff that's in our briefcases and book bags, or just on
the tables or what?
TC: I believe, just laid out on the tables, ma'am, as they were setting up the computers
nothing in their personal bags. The government wants to make clear that we're complying with the
court's instructions about what is in the deliberation room during deliberations. Ifthe court doesn't
believe it is a concern, obviously, we can move on.
MJ: I believe what you're talking about is just books lying on the table, right?
TC: That's my understanding, ma'am, yes.
MJ: Any issues with that?
PRES: No issues, Ijust didn't know if you wanted it out of our personal belongings.
MJ: If there's books or magazines on the table, we'll collect those; we don't need to collect
any personal bags.
[MDW OSJA staff collected unattended personal reading material out ofthe deliberation room.]
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TC: We're prepared to proceed, ma'am.
MJ: Based on what has just transpired, does either side desire a brief 39(a) session before we
close the court?
CDC: We're fine, Your Honor.
TC: No, ma'am.
MJ: Members of the court, the court is closed for deliberations.
[The court-martial closed at 1100, 16 December 2010.]
[END OF PAGE]
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1 [The members withdrew from the courtroom.]
2 MJ: The record will reflect the members have departed.
3 Is there anything else we need to address before we recess the court?
4 CDC: No, Your Honor.
5 TC: No, ma'am.
6 MJ: Court is in recess.
7 [The session recessed at 1100, 16 December 2010.]
8 [The session was called to order at 1333, 16 December 2010.]
9 MJ: This Article 39(a) session is called to order.
10 Let the record reflect all parties present when the court last recessed are again present in
11 court; the members are absent, as is Mr. Puckett.
12 I've been advised by the bailiff that the members would like a recess.
13 Before we continue, I did want to ask, in light of the weather outside, do we have the
14 same capacity to get lunch for the members, should they desire that option?
15 TC: Yes, ma'am, we can certainly collect orders and bring lunch into them, to minimize the
16 extent to which people have to leave.
17 MJ: I'm going to ask them what they prefer to do, and defer to whatever that is.
18 Anything else we need to address before we call the members?
19 TC: No, ma'am.
20 DC: No, Your Honor.
21 MJ: Please call the members.
22
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[The members returned to the courtroom at 1334, 16 December 2010.]
MJ: Let the record reflect the members have returned.
Colonel Gerding, I've been advised by the bailiffthat you all would like a recess?
PRES: Yes, Your Honor, a comfort break and lunch, I guess.
MJ: Let me ask your preference on that. I don't know if you've had a chance to look outside,
but it is snowy. Would you prefer lunch brought in like yesterday?
PRES: Yes, Your Honor, thank you.
MJ: If the parties are comfortable, what I'll do is put the court into recess, send the bailiff
back to get lunch orders, and then we'll come back in, convene the court, and close the court once again
for deliberations.
How long would you like for a recess?
PRES: I guess it depends on how long it's going to take lunch to get here. Are you talking about
including lunch?
MJ: What I'm talking about - for the recess, I'd have the bailiff take your orders, and then
you all take a recess. The idea would be that we'd come back, reconvene and close the court for
deliberations, and when lunch arrived, we'll knock on your door.
PRES: We can do that - 15, please.
MJ: Does that work for both sides?
TC: Yes, rna' am.
DC: Yes, Your Honor.
MJ: Court is in recess for 15 minutes.
[The members withdrew from the courtroom.]
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MJ: Let the record reflect the members have departed.
Is there anything we need to address now?
TC: No, ma'am.
DC: No, ma'am.
MJ: Court is in recess.
[The court-martial recessed at 1336, 16 December 2010.]
[END OF PAGE1
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1 [The session was called to order at 1352, 16 December 2010.]
2 MJ: This Article 39(a) session is called to order.
3 Let the record reflect all parties present when the court last recessed are again present in
4 court; the members are absent.
S Anything we need to address before we call the members?
6 TC: No, ma'am.
7 DC: No, Your Honor.
8 MJ: Please call the members.
9 [END OF PAGE]
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[The members returned to the courtroom at 1353, 16 December 201 0.]
MJ: Let the record reflect the members have returned.
Members of the panel, are you ready to close the court and continue with deliberations?
PRES : Yes, Your Honor.
MJ: The court is closed.
[The members withdrew from the courtroom at 1353, 16 December 2010.]
Let the record reflect the members have departed.
Is there anything else we need to address?
TC: No, ma'am.
DC: No, Your Honor.
MJ: Court is closed.
[The court-martial closed at 1354, 16 December 2010.]
[END OF PAGE]
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1 [The session was called to order at 1547, 16 December 2010.]
2 MJ: This Article 39(a) session is called to order.
3 Let the record reflect all parties present when the court last recessed are again present in
4 court.
S I've been advised by the bailiff that the members have reached sentence.
6 Anything we need to address before we call the members?
7 TC: No, ma'am.
8 DC: No, Your Honor.
9 MJ: Please call the members.
10 [END OF PAGE]
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SENTENCE
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1 [The members returned to the courtroom in open session at 1547, 16 December 2010.]
2 MJ: Let the record reflect the members have returned.
3 Colonel Gerding, have the members reached a sentence?
4 PRES: Yes, Your Honor.
5 MJ: Is it reflected on the sentence worksheet?
6 PRES: Yes, Your Honor.
7 MJ: Please give it to the bailiff, who will give it to me to examine for proper form.
8 [The bailiff did as directed.]
9 [Reviewing AE XL.] The sentence appears to be in proper form.
10 Please return the sentence worksheet to Colonel Gerding.
11 [The bailiff did as directed.]
12 Accused and counsel, please rise.
13 [The accused and his counsel did as directed.]
14 Colonel Gerding, please announce the sentence of the court.
15 PRES: Lieutenant Colonel Terrence L. Lakin, this court-martial sentences you:
16 To forfeit all pay and allowances;
17 To be confined for 6 months; and
18 To be dismissed from the service.
19
20 MJ: Please be seated.
21
22 [The accused and his counsel did as directed.]
23
24 Members of the court, before I excuse you, let me advise you of one matter. If you are
25 asked about your service during this court-martial, I remind you of the oath that you took in the
26 beginning of the triaL Essentially, that oath prevents you from discussing your deliberations with
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1 anyone, to include stating any member's opinion or vote, unless ordered to do so by a court. You may
2 certainly discuss your personal observations about the courtroom and how the process of a court-martial
3 functions, but nothing that was discussed during your closed-session deliberations.
4 Colonel Gerding, if you would, please give the bailiff the exhibits, my instructions and
5 the sentence worksheet.
6 [The president did as directed, and the bailiff returned the exhibits to the court reporter.]
7 Thank you for your attendance and service. You are excused.
8 Counsel and the accused will remain.
9 [The members withdrew from the courtroom.]
10 The members have withdrawn; all other parties remain.
11 We've gone over the post-trial and appellate rights. Is there anything else we need to
12 address before we adjourn?
13 TC: No, ma'am.
14 DC: No, ma'am.
15 MJ: Court is adjourned.
16 [The court-martial adjourned at 1551, 16 December 2010.]
17 [END OF PAGE]
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-------------
AUTHENTICATION OF RECORD OF TRIAL
In the case of
Lieutenant Colonel Terrence L. Lakin, US Army, Headquarters Company, Medical Center
Brigade, Walter Reed Army Medical Center, Washington, DC 20307
I received the completed record of trial for review and authentication on
//J/lft

COL,JA
Military Judge
I
I
_____________
1'--___20 W'
I received the record of trial in the foregoing case on _______ completed my
examination on
MATTHEW J. KEMKES
MAJ, JA
Defense Counsel
_______ 2010
The record of trial was served on defense counsel on After verifying receipt with defense counsel on
_____--:-____ and conferring with the military judge on review by defense counsel on the
record was forwarded for authentication without completion of defense counsel's review.
ASHDENFEIN
CPT, JA
Chief, Military Justice Division
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AUTHENTICATION OF RECORD OF TRIAL
In tbe case of
Lieutenant Colonel Terrence 1. US Army, Headquarters Company, Medical Center
Brigade, Walter Reed Anny Medical Center. Washington, DC 20307
I received the completed record of trial for review and authentication on ____
DENISE R. LIND
COL,JA
Military Judge
_______2010 ________ 2010
I received the record oftrial in the foregoing case on 2.8 DtG. WIO completed my
examination on '3 Jt4AJ 2..01\ .

MAJ,JA
Defense Counsel
______2010
The record of trial was served on defense counsel on . After verifYing receipt with defense counsel on
conferring with the military judge on review by defense counsel on _ ,the
record was forwarded for authentication without completion of defe.nse cQunsel's review.
ASHDENFEIN
CPT,JA
Chief. Military Justice Division
491
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ACTION
DEPARTMENT OF THE ARMY
U.S. Army Military District of Washington
Fort Lesley J. McNair, DC 20319-5058
In the case of Lieutenant Colonel Terrence L. Lakin, 521-88-3697, U.S. Army, Headquarters
Company, Medical Center Brigade, Walter Reed Army Medical Center, Washington, DC, 20307,
the sentence is approved, and except for that portion of the sentence pertaining to a Dismissal
from the service will be executed.
7 APR 2011
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IN A COURT -MARTIAL OF THE UNITED STATES
ARMY TRIAL JUDICIARY, FIRST JUDICIAL CIRCUIT
UNITED STATES
v.
LAKIN, Terrance L.
LTC, U.S. Army
Headquarters Company
Medical Center Brigade
Walter Reed Army Medical Center
Washington, DC 20307
)
)
Ruling:
)
Defense Motion to Compel or
)
For Other
)
Appropriate Relief
)
)
)
2 September 2010
)
The Defense has moved to compel production of the following documents both
for this Court's interlocutory determination of the lawfulness of the orders in
specifications 1 - 3 of Charge II and for the merits and sentencing portions of the trial:
1. Writings of Punahou school, Occidental College, Columbia University, and
Harvard University regarding applications for admission and financial aid of Barrack
Houssein Obama IIIBarry Soetoro; and
2. Records in possession of Hawaii State Department of Health's Office of
Health Status Monitoring pertaining to the birth of Barrack Houssein Obama II.
The defense further requests the production of Ms. Betty Hata, Dr. Chiyome
Fukino, Mr. Jeffrey Scott, and Mr. Doug Bergman, as custodian of records for the above
documents, LTG (Ret) Thomas G. Mcinerney to testify consistent with his affidavit
regarding the military chain of command and Dr. Alan Keyes, for sentencing to testify
about the history of the U.S. Constitution.
In separate filings, the Defense requests the Court order an oral deposition be
taken of the Custodian of the Records of the Hawaii Department of Health about
department records concerning the birth of Barrack Houssein Obama II. The Defense
also requests the Court take Judicial Notice of (1) Remarks by the President in "Address
to the Nation on the Way Forward in Afghanistan and Pakistan," 1 December 2009,
Eisenhower Hall Theater, United States Military Academy at West Point, New York; DA
PAM 10-1 preface and chain of command chart, U.S. Department of State, 7 FAM
1131.6-2, Senate Resolution 511 (11 Oth Congo 2
nd
Session), agreed to 30 April 2008, 10
U.S.C. 162b; Article II, Section 1, U.S. Constitution, the words "Soldiers have a duty to
disobey illegal orders." And Hawaii Revised Statute section 338-17.8.
At oral argument, the defense urges the Court to find that Rule for Court-Martial
(RCM) 703(c) violates Article 46, of the Uniform Code of Military Justice, rather than
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follow the rule, allow the defense to subpoena witnesses and evidence the defense
believes may be relevant to their case.
Having received the briefs and supporting evidence filed by the parties and having
heard oral argument, the Court finds and rules as follows:
Procedures Governing Production of Witnesses and Evidence in Courts-Martial:
1. Article 46, UCMJ, provides that the trial counsel, the defense counsel, and the court­
martial shall have equal opportunity to obtain evidence in accordance with such
regulations as the President may prescribe. Article 46 also states in pertinent part that
process to compel witnesses and evidence shall be similar to that which the courts of
the United States having criminal jurisdiction may lawfully issue.
2. The President has prescribed Rule for Court Martial (RCM) 703 to govern production
of witnesses and evidence. Under RCM 703(b)(1) and (f) each party is entitled to the
production of any evidence which is relevant and necessary or any witness whose
testimony on the merits or on an interlocutory question would be relevant and
necessary. RCM 703 authorizes the trial counsel to obtain witnesses and evidence
he/she considers relevant and necessary for the prosecution but requires the defense to
submit to the government a list of witness the defense sUbmits are relevant and
necessary. If the government contends that production is not required under the rule,
the matter is submitted to the military judge for decision.
3. Military Rule of Evidence (MRE) 401 defines "Relevant Evidence". Relevant
evidence means evidence having any tendency to make the existence of any fact that is
of consequence to the deterrnination of the action more or less probable than it would
be without the evidence.
4. MRE 402 provides that all relevant evidence is admissible, except as otherwise
provided by the constitution of the United States as applied to members of the armed
forces, the code, these rules, this Manual, or any Act of Congress applicable to
members of the armed forces. Evidence which is not relevant is not admissible.
5. Relevant evidence is necessary when it is not cumulative and when it would
contribute to a party's presentation of the case in some positive way in a matter at
issue. A matter is not at issue when it is stipulated as fact (discussion to RC.M.
703(b)(1 )).
6. MRE 403 provides that relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the members, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
7. RCM 703{ c){2) and (f)(3) govern production of witnesses and evidence for the
defense. For interlocutory questions or the merits, these rules require the defense to
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submit to the trial counsel a list of witnesses and evidence the defense considers
relevant and necessary on the merits or on an interlocutory question. For witnesses,
the defense submission shall include the name, telephone number, if known, and
address or location of the witness such that the witness can be found in the exercise of
due diligence and a synopsis of the expected testimony sufficient to show its relevance
and necessity. For evidence the defense must list the items of evidence to be produced
and include a description of each item sufficient to show its relevance and necessity, a
statement of where it can be obtained, and, if known, the name, address, and telephone
number of the custodian of the evidence. For sentencing witnesses, the defense must
include a synopsis of the testimony that it is expected the witness will give and the
reasons why the witness' personal appearance will be necessary under the rules set
forth in RC.M. 1001 (e). The synopsis of witnesses must include the subject to be
addressed and what the witness is expected to say about those subjects. U.S. v.
Rockwood, 52 M.J. 98, 105 (C.A.A.F. 1999).
Findings of Fact: Production of Defense Requested Witnesses and Evidence in
this Case:
1. The accused is charged with missing movement by design, three specifications of
failure to obey lawful orders, and willful dereliction of duty. The question presented is
whether the evidence is relevant and necessary to either: (1) the interlocutory question
of whether the orders in specifications 1-3 of Charge II are lawful; (2) the merits portion
of the trial as evidence of a fact of consequence to an element of a charge or to a legal
defense to a charge; or (3) sentencing as evidence in aggravation, extenuation, or
mitigation. In sentencing the defense may present matters in mitigation of an offense to
lessen to punishment to be adjudge by the court-martial, or to furnish grounds for a
recommendation of clemency. Such evidence includes particular acts of good conduct
or bravery and evidence of the reputation or record of the accused in the service for
efficiency, fidelity, subordination, temperance, courage, or any other trait that is
desirable in a service-member (RC.M. 1001 (c)(1 )(8)). The defense may also present
matters in rebuttal of matters presented by the prosecution (RC.M. 1001 (c)(1 )).
2. The Defense asserts that these records and witnesses are relevant and necessary
for this court's interlocutory determination on the lawfulness of the orders at issue in
specifications 1-3 of Charge II and on the merits because the primary defense - or at
least partial defense - to the charges in this case is that the orders at issue in
specifications 1-3 of Charge II were unlawful. The Defense asserts that the President,
as the Commander in Chief is the source of all military authority. If the President is not
a natural born citizen, he is ineligible under the United States Constitution to serve in
office, then, axiomatically, no order given by him is valid. Thus, if the President's 1
December 2009 decision to increase troop strength in Afghanistan by 30,000 troops
was illegal, then it can only but follow that the orders issued by the chain of command
pursuant thereto are illegal. The Defense further contends that this evidence is relevant
for sentencing.
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3. The Government responds that the evidence the Defense seeks to compel is not
relevant and necessary on the interlocutory question of the legality of the orders at issue
in specifications 1-3 of Charge I because neither the authority of the officers issuing the
orders in specifications 1-3 of Charge II (LTC William Judd, COL Gordon Roberts, and
COL Peter M. McHugh) nor LTC Lakin's duty to obey those orders depends on whether
the President is eligible under the Constitution to serve as President and Commander in
Chief. Instead, Title 10 United States Code Section 3013(b) vests the Secretary of the
Army with the responsibility and authority to conduct all affairs of the Department of the
Army, including mobilizing and maintaining the Army. The Government further asserts
that, assuming arguendo without conceding the point, even if President Obama is not
eligible to hold office the de facto officer doctrine, recognized by the Supreme Court in
Ryder v. U.S,} 515 U.S. 177 (1995), dictates that actions taken by President Obama
under color of office are valid. LTC Lakin is duty bound to follow the lawful orders of his
superiors even if the eligibility of the President under the Constitution is later found
deficient. Finally, the Government argues that the motion to compel should be denied
as the probative evidence of the President's birthplace is substantially outweighed by
the danger of confusing the issues and misleading the members and will cause undue
delay and waste of time under Military Rule of Evidence (MRE) 403.
4. For purposes of ruling on this motion, the Court takes judicial notice of the following
adjudicative facts under MRE 201: President Barrack Obama is the 44th President of the
United States. He was elected on November 4. 2008 and inaugurated on 20 January
2009. He has served as President and Commander in Chief since 20 January 2009
and continues to serve in that capacity.
5. The elements of the offenses charged are as follows:
Charge 1 - Missing Movement in violation of Article 87, UCMJ:
1. LTC Lakin was required in the course of duty to move with U.S. Airways Flight
Number 1123, departing from BaltimorelWashington International Airport arriving in
Charlotte, North Carolina, in order to deploy for a Temporary Change of Station in
support of Operation Enduring Freedom with the 32
nd
Cavalry Regiment, 101
st
Airborne
Division (Air Assault), Fort Campbell, KY;
2. LTC Lakin knew of the prospective movement of the aircraft;
3. At or near Arlington. VA, on or about 12 April 2010, LTC Lakin missed the movement
of the aircraft; and
4. LTC Lakin missed movement through design.
Charge II. Specifications 1-3, Failure to Obey Lawful Order, in violation of Article 92,
UCMJ:
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1. That a member of the armed forces, namely, (Specification 1 ) LTC William Judd,
issued a certain lawful order to report to the office of LTC Lakin's s brigade commander,
COL Gordon R. Roberts at 1345 hours or words to that effect; (Specification 2) COL
Gordon R. Roberts issued a certain lawful order to wit" a memorandum signed by COL
Roberts dated 31 March 2010 requiring the accused to report to the office of the
Medical Center Brigade Commander at 1700 hours on 31 March 2010; (Specification 3)
COL Peter M. McHugh issued a certain lawful order to wit: Temporary Change of
Station Orders 099-17, dated 9 April 2010, issued by COL McHugh, requiring the
accused to report to Fort Campbell, KY, not later than 1500 hours on 12 April 2010;
2. (common to all 3 specifications) That LTC Lakin had knowledge of the order;
3. (common to all 3 specifications) That the LTC Lakin had a duty to obey the order;
4. (common to specifications 1 and 2) That at or near 31 March 2010, LTC Lakin failed
to obey the order;
(specification 3) That at or near Washington, DC, on or about 12 April 2010, LTC
Lakin failed to obey the order.
CII, S4, Dereliction of Duty in violation of Article 92 - elements:
1. LTC Lakin had a certain prescribed duty, that is: to report to Fort Campbell,
Kentucky in accordance with Temporary Change of Station Orders 099-17, dated 9 April
2010;
2. That LTC Lakin actually knew or should have known of the assigned duty.
6. When a servicemember is charged with violating a lawful order, as is the case here
with specifications 1-3 of Charge II, the legality of the order is an issue of law for the
military judge to decide as an interlocutory question. The issue of lawfulness of an
order is not an element to be decided by the court-martial members. U.S. v. Deicher,
61 M.J. 313 (C.A.A.F 2005) citing U.S. v New, 55 M.J. 95,105 (C.A.A.F. 2001). An
order is presumed to be lawful and the accused bears the burden of rebutting the
presumption.
The essential attributes of a lawful order include:
(1) issuance by competent authority - a person authorized by applicable law to give
such an order;
(2) communication of words that express a specific mandate to do or not do a specific
act; and
(3) relationship of the mandate to a military duty.
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The accused may also challenge an order on the grounds that it would require the
recipient to perform an illegal act or that it conflicts with that person's statutory or
constitutional rights. Deicher, at 317.
The officer issuing the order must have authority to give such an order. Authorization
may be based on law, regulation, or custom of the service. MCM, pt. IV, paragraph
14.c.(2)(a)(iii).
The order must relate to military duty, which includes all activities reasonably necessary
to accomplish a military mission, or safeguard or promote the morale, discipline, and
usefulness of members of a command and directly connected with the maintenance of
good order in the service. The order may not, without such valid military purpose,
interfere with private rights or personal affairs. However, the dictates of a person's
conscience, religion, or personal philosophy cannot justify or excuse the disobedience
of an otherwise lawful order ... MCM, pt. IV, paragraph 14.c.(2)(a)(iv).
An order requiring the performance of a military duty or act may be inferred to be lawful
and it is disobeyed at the peril of the subordinate. This inference does not apply to a
patently illegal order, such as one that directs the commission of a crime.
MCM, pt. IV, paragraph 14.c.(2)(a)(i),(iv).
It is'not a defense for a servicemember to claim that an order is illegal based on his
interpretation of applicable law. A personal belief that an order is unlawful is not a
defense to a disobedience charge. The defense has the burden to prove illegality
unless the order is palpably illegal on its face. The duty to disobey an unlawful order
applies only to a positive act that constitutes a crime that is so manifestly beyond the
legal power or discretion of the commander as to admit of no rational doubt of the
order's unlawfulness. United States v. New, 55 M.J. 95,108 (C.AAF. 2001).
Conclusions of Law:
1. The Court finds that the provisions of RCM 703(c) requiring the defense to go
through the trial counsel for production of witnesses and evidence the defense believes
to be relevant and necessary does not violate Article 46. Under RCM 703(b)(1) and (f)
both parties are entitled to production of witnesses and evidence that are relevant and
necessary on an interlocutory question, on the merits, or on sentencing. The rules are
grounded on fundamental concepts of relevance, U.S. v. Graner, 69 M.J. 104 (C.AA.F.
2010). Article 46 provides that process issued by courts-martial will be similar to that of
which district courts having criminal jurisdiction shall issue. Similar does not mean
"identical". The procedures in ReM 703 are properly promulgated by the President to
ensure that discovery under Article 46 is limited to production of witnesses and
evidence that meet the relevance/necessity threshold.
2. The defense request for judicial notice of the statement "Soldiers have a duty to
disobey illegal orders." is a legal conclusion that fails to distinguish between a personal
belief that an order is unlawful - which is not a defense unless the order is palpably
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illegal on its face - and a palpably illegal order. The request for judicial notice for this
broad statement is denied.
3. The defense asserts that the President. as Commander in Chief under Article II,
Section 2. of the Constitution, is the source of all military authority. In fact, the
President, as Commander in Chief. and Congress share authority over the military.
Article 1. Section 8. of the Constitution empowers Congress to raise and support
armies, to make rules for the government and regulation of the land and naval forces. to
provide for calling forth the Militia to execute the Laws of the Union, suppress
insurrections. and repel invasions. and to provide for organizing, arming. and
disciplining. the Militia and for governing such part of them as may be employed in the
service of the United States. Congress has exercised this authority by enacting Article
10 of the United States Code and by giving the Secretary of Defense and the Service
Secretaries statutory authorities and responsibilities. See 10 U.S.C. 113,3013,5013,
and 8013. In 10 U.S.C. 3013, Congress designated the Secretary of the Army as
responsible for and with authority necessary to conduct all affairs of the Department of
the Army, including (among others) the following relevant functions, recruiting.
organizing, supplying, equipping, training, servicing, mobilizing, demobilizing, and
administering (including the morale and welfare of personnel). The statute further
empowers the Secretary of the Army to assign. detail, and prescribe the duties of
members of the Army and to prescribe regulations to carry out his functions, powers.
and duties, under this Title.
4. The Secretary of the Army has promulgated numerous Army Regulations pursuant
to his authority under 10 U.S.C. 3013.
1
These Army Regulations provide an
independent authority for military officers to issue lawful orders. Authorization for
officers to issue lawful military orders may be based on law, regulation, or custom of the
service. MCM, pt. IV, paragraph 14.c.(2)(a)(iii). The authority of military officers to
issue lawful orders and the concomitant duty of military service members to obey such
lawful orders does not depend on whether the President is qualified under the
Constitution to hold office.
5. Any suggestion by the defense that the authority of military officers to issue any
lawful orders ceases to exist if a serving President is found to be unqualified by the
Constitution to hold office is an erroneous view of the law. Similarly. any suggestion by
the defense that if a President is found to be unqualified by the Constitution to hold
office, service-members have no duty to follow any orders issued by their military
superiors is equally erroneous.
6. The three orders at issue in specifications 1-3 of Charge II are alleged to be
authorized by LTC William Judd. COL Gordon Roberts, and COL Peter M. McHugh.
respectively. Whether President Obama is a natural born citizen or is qualified under
the Constitution to hold office is not relevant to determine whether they are authorized
to issue the orders charged.
I See Army Publishing Directorate at http.//www.apd.army.mili.
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7. The three orders at issue in specifications 1-3 of Charge II order LTC Lakin to report
to the office of his Brigade Commander, COL Gordon R. Roberts in specification 1, to
report to the office of the Medical Center Brigade Commander at 1700 on 31 March
2010 in specification 2, and to report to Fort Campbell, Kentucky not later than 1500
hours on 12 April 2010. Whether President Obama is a natural born citizen or is
qualified under the Constitution to hold office is not relevant to determine whether any of
these three orders constitutes a palpably illegal act or whether LTC Lakin had a duty to
obey these orders.
8. The more narrowly tailored basis for relevance and necessity posited by the defense
is that if the President is found to be not qualified by the Constitution to hold office, any
order he issues as Commander in Chief is illegal and any order issued by a subordinate
military officer in furtherance of that illegal presidential order is itself illegal negating the
duty of servicemembers to obey.
9. This is not the first time a servicemember charged with missing movement,
dereliction of duty, and failure to obey orders has challenged the legality of the order
because it was issued in furtherance of a policy that was enacted by the President in
violation of the Constitution. Two recent examples of such cases are US. v. Huet
Vaughn, 43 M.J. 105 (C.A.A.F. 1995) and US. v. New, 55 M.J. 95 (C.A.A.F. 2001). In
Huet Vaughn, then CPT Huet Vaughn was charged with desertion with intent to avoid
hazardous duty and shirk important service. CPT Huet Vaughn's defense was based in
part that she disobeyed an order she believed to be unlawful. She wanted to present
evidence to contest the legality of the decision to employ military forces in the Persian
Gulf. The military judge held that the government's decision to wage war was a non­
jusiticiable political question and refused to allow evidence to contest the political
decision to be presented during the trial. Similarly in New, then SPC New was charged
with failure to obey an order to wear his U.S. Army uniform modified with United Nations
(UN) accoutrements. SPC New argued that the order violated the Emoluments Clause
of Article 1, Section 9, of the Constitution and furthered an illegal deployment of United
States forces because President Clinton misrepresented the nature of the deployment
to Congress and that the Army's participation in the U.N. mission was unlawful, and that
the deployment violated the Commander-in-Chief Clause, the Appointments Clause,
and the Thirteenth Amendment of the Constitution. The military judge found the order
to be lawful and declined to rule on the constitutionality of the President's decision to
deploy the Armed Forces in the Former Yugoslavian Republic of Massadonia (FYROM),
finding the Constitutional issues to be non-justiciable political questions. The decisions
of the military judge in both Huet Vaugn and New to treat the Constitutional challenges
to the underlying policies established by the political branches were upheld by the Court
of Appeals for the Armed Forces, and in New, by the D.C. Circuit considering a
collateral challenge under the federal question doctrine, 28 U.S.C. 1331. US. ex reI.
New v. Rumsfeld, 448 F.3d 403 (D.C. Cir. 2006).
10. The political question doctrine is based on the separation of powers in the three
branches of government. The seminal case setting forth when courts should adopt the
political question doctrine and preclude judicial review is Baker v. Carr, 369 U.S. 186
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(1962). Under Baker, the court should preclude judicial review of a political question
upon a finding of one or more of the following factors:
(1). a textually demonstrable constitutional commitment of the issue to a coordinate
political department;
(2). a lack of judicially discoverable and manageable standards for resolving it;
(3). the impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion;
(4). The impossibility of a court's undertaking independent resolution without
expressing lack of respect due coordinate branches of government; or
(5) an unusual need for unquestioning adherence to a political decision already made
or the embarrassment from multifarious pronouncements by various departments on
one question.
11. The Court recognizes the distinction between this case and Huet Vaugh and New in
that those cases did not challenge the authority of the President to hold office and make
policy. These cases raised Constitutional challenges to the policies themselves rather
than the authority of the President to hold office and to act as Commander in Chief.
12. Notwithstanding this distinction, the issues of whether President Obama is a natural
born citizen and whether he is qualified under the Constitution to serve as President are
textually demonstrable constitutional commitments of the issues to a coordinate political
department. Article 1, Sections 1 and 3 of the Constitution ~ i v e Congress the sole
power of impeachment and removal of a serving President. The Court further
concludes that it is impossible for this Article 1 Court to undertake independent
resolution of whether President Obama is a natural born citizen or is qualified under the
Constitution to hold office without expressing lack of respect due coordinate branches of
government.
13. In the context of this Article 1 court-martial for a servicemember accused of
disobeying orders to challenge the constitutional qualifications of the President to hold
office, there is also an unusual need for unquestioning adherence to a political policy
decision already made. The potential for embarrassment from multifarious
pronouncements by various departments on one question are uniquely powerful to
ensure that courts-martial do not become the vehicle for adjudicating the legality of
political decisions and to ensure the military's capacity to maintain good order and
discipline in the armed forces.
14. The merits of whether President Obama is a natural born citizen and whether he is
qualified under the Constitution to hold office are not logically relevant under MRE 401
for the interlocutory question, the merits portion of the trial, or the sentencing portion of
2 What jurisdiction Article III Courts have to entertain proceedings challenging the constitutional qualifications of
serving President and whether such courts would invoke the political question doctrine in such proceedings is
beyond the jurisdiction of this Court to opine. However, the Court notes that Article III courts have addressed
Constitutional challenges to a President's decision to wage war, see Dellums v. Bush, 752 F. Supp. 1141 (D.D.C.
1990).
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· .
the trial. Even if they were logically relevant, in light of the conclusion of the Court that
the above Baker factors exist, judicial review of these issues by this court-martial is
precluded by the political question doctrine. Thus, even if logically relevant under MRE
401, the issues are not legally relevant under MRE 402 and not admissible under MRE
403. 3 This Court will not compel production of any witnesses or evidence requested by
the defense that relates to the merits of whether President Obama is a natural born
citizen or whether he is qualified under the Constitution to hold office.
RULING: The Defense Motion to Compel or Other Appropriate Relief, Motion for
Judicial Notice, and Requestfor Deposition are Denied.
SO ORDERED: 2 September 2010.
p/!(/
DENISE R. LIND
COL, JA
Chief Judge, 1 sl Judicial Circuit
] The Court recognizes the existence of the defacto officer doctrine, recognized and described by the Supreme Court
in Ryder v. US, 515 U.S. 177 (1995). In light of the Court's ruling that judicial review of the issues of whether
President Obama is a natural born citizen or is otherwise qualified under the Constitution to hold office is precluded
by the political question doctrine, the Court declines to address the applicability of the de facto officer doctrine in
this case.
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