“Again, this is VERY elementary for lawyers familiar with military law. Lakin should have consulted competent military counsel before engaging in this behavior. In fact, he was formally advised by his command to seek military counsel prior to missing movement.”
While do not discount your military JAG experience. I question whether a board of officers will feel compeled to follow “precident” since this is entirely new ground. It is funny you should quote from Watada’s case since he walked and the case against him was a slam dunk. The more the JAG Corps attempts to follow precident and suppress germane evidence concerning the LTCs motives and blindly convict a distingusihed officer who is not making unreasonably requests....there more the JAG Corps will lose credibility in the eyes of the rank and file.
Loss of credibility, means loss of ability to function. What line officers think is more important than a direct commission JAG.
A few things - that decision didn't come from JAG lawyers, it came from CAAF. CAAF has civilian lawyers on it, applying military law.
More to the point, any evidence of Lakin's motivation or intent is immaterial because the Rules for Courts-Martial clearly DO NOT make those requisite elements of missing movement. Intent can be a central element of some UCMJ specifications - like murder, for example. It's just not an element for this particular charge.
Secondly, conservative legal philosophy is such that it demands that trial courts follow the law, to include precedent. To do otherwise, is legislating from the bench.
With respect to Lakin's case in particular, it is an unreasonable request because the military - to include LTC Lakin - does not enjoy the prerogative of inspecting the bona fides of its civilian command. There are civilian procedures for that. The Constitution provides NO ROLE for the military in vetting our Presidents, or civilian military leadership, nor any role in an examination of their installation.
Lastly, Watada's case is complicated, but essentially the trial court blew the jury instruction, which was tricky because of Watadas assertion of an affirmative defense. Reasonable people can disagree about whether the MJ's instruction was indeed defective, and whether or not that defect constituted reversible error. If it were not for the attachment of double jeopardy (again, controversially), Watada would have been retried and again, easily convicted.
Watada didn't walk on the merits. He walked on a technical error of the military judge.