It is unclear what role if any APF will continue to have in this case. The website and a recent email indicate a role limited to publicity for LTC Lakin, his case, and the birther issue. See APF still ‘in the fight’ and apparently LTC Lakin intending to stay the course, and compare with the current site. The United States Patriots Union is now apparently in the game with their four ‘White Papers’. I am labelling them the nativists. While APF has a focus on the birth certificate, the USPU argues the APF position is too narrow and has a focus on the natural born aspect of presidential eligibility as well. Neither theory is helpful to LTC Lakin. Neither theory was helpful before he disobeyed orders and neither is relevant now. Neither theory will ever be relevant to a defense against the current charges. LTC Lakin is in a bind.

I would suspect that the new defense team will bilge the birther/nativist theory. So the question becomes what might be their strategy or approach. I would imagine efforts to avoid or remove this case from trial might be one. Thinking outside the box (or outside the schoolroom solution) is vital. But despite the thinking, can it be done, can a viable defense be fashioned for LTC Lakin.

Let’s assume for the moment that the government feels they must proceed to trial regardless of any attempts to negotiate a diversion or other damage control. This is not a bad decision on the government’s part as the case currently sits. LTC Lakin is condemned by his own words before and after his decision to disobey orders and miss movement. The main hurdles were disposed of at the motions sessions. The difficulties in getting to trial now would be largely administrative to include making sure there are enough members available to form a panel. It is unlikely MDW would use lieutenant colonel’s because of LTC Lakin’s seniority by date of rank, although who knows. Besides, LTC Lakin might decide to go judge alone – with COL Lind (currently). Or the parties might come to a pretrial agreement.

Let’s further assume no pretrial agreement and a contested case. Are there any potential defenses from a defense counsel perspective?

Throw the lawyer under the bus (TMLUB) seems to be a current favorite. Whether that will get relief will be a different question. By that defense I mean a “my lawyer (Mr. Jensen) told me the orders were unlawful and that I could disobey them. I reasonably relied on his advice and I must be found not guilty. Dew Process over at CAAFLog raises the question of “acting on the advice of counsel,” citing to some federal court cases as being a defense to some or all of the charges and also use of a Maynulet approach.

Let’s start with R.C.M. 916(l)(1).

(1) Ignorance or mistake of law. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.

The Discussion to the rule then talks about some situations that could arise. The Discussion states two items of potential interest.

[M]istake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency.

On the other hand, reliance on the advice of counsel that a certain course of conduct is legal is not, of itself, a defense.

Note that the courts have held that the Discussion portion to the rules for courts-martial is not binding. See e.g. United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001); United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008)

It is well settled in civil and military law that mistake of law is generally not a defense to criminal conduct. R.C.M. 916(l)(1) states the following: “Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.” See also Lambert v. California, 355 U.S. 225, 228 (1957).

United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010),

DewProcess points to Maynulet.

WHETHER THE MILITARY JUDGE ERRED WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF MISTAKE OF LAW.

68 M.J. at 375.

The appellant was convicted of assault with the intent to commit voluntary manslaughter as a ‘mercy’ killing. The appellant based part of his argument on the ROE training given in a session “presided over by operational law attorneys, brigade trial counsel, and other judge advocates.” Appellant’s defense then hinged on convincing the members that he believed the legal training he was given allowed for his conduct and that he was acting consistent with that training. In arguing for an instruction this was the part of the Discussion alluded to:

During a colloquy with the military judge, he explained that “mistake of law may be a defense when the mistake results in the reliance on the decision or announcement of authorized public official or agency.” Later during the same colloquy he stated: [W]hen Captain Maynulet was told that this guy was going to die and there was nothing that could be done, right, he was guided not by care of the wounded, not to shoot somebody who was out of the battle due to sickness or wounds, but he’s guided by preventing unnecessary suffering, and that’s what was taught at the briefings, and that’s what’s in the law.

In civilian practice, this defense is more generally stated as a “reasonable[e] rely[ance] upon an erroneous official statement of the law.”

68 M.J. at 3756-376 (emphasis added).

Ultimately CAAF held that there is was no evidence that a mercy killing is considered lawful, that even if it was lawful that the appellant received no such an instruction, and there was no evidence upon which a reasonable person could consider the training authorized or counseled mercy killing.

Just as in Maynulet there is no evidence for LTC Lakin that anyone in an official position gave him anything but a clear understanding of what the law and his obligations were.

My past experience with this phrase from the Discussion happened in October 2003 in Iraq. The client was a squad leader accused of personally assaulting civilian detainees, conspiracy, encouraging or letting his Soldier maltreat detainees, and wilful dereliction of duty. The military judge allowed defense testimony that during the pre-deployment ROE briefs the battalion commander appeared to encourage and approve assaultive behavior. The platoon leader and another witness testified to being present at the briefing; the that commander held up the ROE card; and that the commander several times stamped his foot and said that the ROE were on the card but that they should kill the b………’s. The judge did not give an instruction. But I was allowed to argue the issue. Ultimately the client was acquitted of everything except negligent dereliction in failing to supervise his Soldiers. (A jury nullification is a likely reason.) That of course was in the very early days of misconduct cases in Iraq. And as a member told me later, “it was a very very difficult decision.” Unlike my client or Maynulet, I do not see a situation where LTC Lakin can take advantage of a “I was told by an official” defense. Because as he himself seems to say in his various documents and chronologies, the advice he was getting from responsible government officials was that the orders were lawful and he should follow them. It seems his unwillingness to accept advice is what got him in trouble. Basically he seemed to be seeking the answer he wanted rather than the right answer. So the Maynulet ‘problem’ for LTC Lakin is who the messenger was. Evidence seems to point to Mr. Jensen as being the messenger, not a government official or even a government lawyer. See e.g. the video’s a Mr. Jensen’s former website. The timing is unclear, but a civilian practitioner very experienced in military law had told LTC Lakin his defense would not work.

The timing could be important. If the advice was given prior to the refusal of orders that would further damn LTC Lakin. If the advice was given after the refusal then it is of insignificant value.

So let’s move on to a TMLUB defense. But before doing so a necessary caution and an experience. Some years ago I had a client who was under investigation for a very serious charge. At the time he had a retirement date. During the course of the investigation and pre-preferral he made multiple visits to the personnel office variously requesting or demanding that he be retired. His thinking was that if he retired he would no longer be subject to jurisdiction, or that the government wouldn’t bother, and that he was doing that on the advice of his military counsel. Ultimately he was charged with several very serious offenses and also trying to avoid trial by demanding his retirement. His defense to the avoiding trial charge was, “my lawyer told me to do it; said it was OK.” Now here’s the caution present in the TMLUB defense not present in the government agent advice defense. For either “defense” you have to put on evidence. Assuming you are using the defense and the issue is “intent,” how do you present evidence as to what the accused was thinking and why he took those actions? Well, the accused has to testify does he not? And once the accused decides to testify does he not waive the attorney-client privilege, albeit it in a limited fashion, as to what was said. See e.g. Pritchard v. County of Erie, 546 F.3d (2d. Cir. 2008). So, if LTC Lakin wants to use a TMLUB defense must he testify and thereby waive the privilege? Of course counsel can object, but I suspect the issue would be waived (as it happened in my case). So too, that means that Mr. Jensen could be subject to testimony or deposition? Or he might even decide to appear voluntarily on behalf of LTC Lakin. Now wouldn’t that add some interesting issues and perspectives. Would this be enough to get some bargaining leverage? Right now LTC Lakin seems to need bargaining leverage?

LTC Lakin appears sufficiently informed about the law. He himself admits that he complained in writing, was denied, and was knowingly disobeying. There appears to have been ample opportunity for him to know the law. In fact some of his own supporters agree that what LTC Lakin did was knowing and deliberate. See e.g.,

These are not the words of an ill informed man, or someone who did not know where his actions might lead. No, these are the words of someone who with full knowledge and composure embarked on a course of action so few would dare to contemplate.

obamareleaseyourrecords.blogspot.com.

It is with reference to white collar crimes, tax crimes, and union cases that Dew Process raises an interesting point about specific intent crimes (such as missing movement by design), and the TMLUB defense.

It seems to me that a challenge would have to be made to R.C.M. 916(l)(1) as unconstitutionally depriving LTC Lakin of the right to present a defense. But I’ll leave that aspect to someone else. Let’s assume for the moment that the courts comment in Maynulet does leave open a possible partial defense. In federal district court there is a defense to a specific intent offense

Because “good faith reliance upon advice of counsel … establishes a defense” to specific intent crimes, United States v. Hansen, 249 U.S. App. D.C. 22, 772 F.2d 940, 947 (D.C. Cir. 1985), such as § 501(c), appellants assert that the jury should have been given an instruction that good-faith reliance on advice of counsel was a defense to embezzlement. A defendant is entitled to an advice-of-counsel instruction if he introduces evidence showing: (1) he made full disclosure of all material facts to his attorney before receiving the advice at issue; and (2) he relied in good faith on the counsel’s advice that his course of conduct was legal. United States v. Lindo, 18 F.3d 353, 356 (6th Cir. 1994). The district court is required to give this instruction “if there is ‘any foundation in the evidence’ sufficient to bring the issue into the case, even if that evidence is ‘weak, insufficient, inconsistent, or of doubtful credibility.’ ” United States v. Duncan, 850 F.2d 1104, 1117 (6th Cir. 1988) (quoting United States v. Phillips, 217 F.2d 435, 443 (7th Cir. 1954)).

United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997)(emphasis added).

United States v. Kottwitz, the other case suggested by Dew Process is a reliance on a tax preparer case.

Here’s in interesting case which involved the counsel’s “conflict of interest” affecting the representation. Witt v. United States, No. 86 Civ. 7766-CSH, (S.D.N.Y. February 3, 1987).

And here’s an interesting case where the accused failed to appear before the grand jury.

Regarding the willfulness element, the court relied on Licavoli v. United States, 111 U.S. App. D.C. 11, 294 F.2d 207, 209 (D.C. Cir. 1961), finding that willfulness under the statute merely requires a deliberate intention to do the act and that advice of counsel does not immunize that simple intention. Id. The court noted that other opinions supported this legal conclusion, citing to United States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992), and United States v. Goldfarb, 167 F.2d 735, 735-36 (2d Cir. 1948).

United States v. Myers, 302 Fed. Appx. 201; 2008 U.S. App. LEXIS 24786 (2d. Cir. December 9, 2008)(unpublished op.).

Based on the above I suspect LTC Lakin and his counsel would be barking up the wrong tree. But, that question might have more resonance than a claim of IAC.

Most if not all of the IAC cases relate to post-preferral effectiveness. DMLHS points to United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992) . In that case the claim was about the civilian counsel misadvising the accused about accepting a pretrial agreement because of personal politics. Ultimately Lonetree cried uncle and negotiated himself a reduction of five years on his sentence. That’s still not close to what might have been on offer of less than 10 even earlier. Other cases of post-preferral and pretrial IAC include United States v. Denedo (immigration impact of guilty plea) and United States v. Miller (sex offender registration).

Is there an element of good faith reliance on the lawyers advice, even if the lawyers advice is wrong. If so, there may be evidence the prosecution can use to rebut a reasonable reliance. Thanks to safeguardourconstitution for being back on line and the availability of some ‘historical’ documents potentially relevant to the defense. Let’s put them in chronological order. Can LTC Lakin have been acting in good faith by accepting and following Mr. Jensen’s advice.

Fall 2008 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Sought information.

11 June 2009: Sought advice through company commander who advised him of the right to submit a Congressional complaint. Note a CG complaint is protected under 10 U. S. Code 1034, from retaliation. Although statements in the complaint can be used as evidence. See United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003).

Winter 2009: (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Sought information, talked with Legal Assistance office at Aberdeen Proving Grounds, MD (no response), began Article 138, UCMJ, complaint process.

Spring /Summer 2009 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him): Apparently did submit a CG and received a response (contents unknown) from Senator Alexander’s office, talked with Congressman Wamp’s office and a “complaint” was sent to the Army OLA.

Fall 2009 (apparently prepared by LTC Lakin himself. With proper notice under Mil. R. Evid. 304(d), these ‘admissions’ could be used against him):

20 November 2009: Submitted an Article 138, UCMJ, complaint against the Army Chief of Staff. However, it is questionable if Article 138, UCMJ, is the proper method. That article is considered to be for a complaint against the immediate commander. LTC Lakin cites AR 27-10 (the Army version of the JAGMAN, LEGADMINMAN, and AFI 51-201). Chapter 20 deals with Article 138, UCMJ. Under para. 20-4 defines a “commanding officer” as a person in the petitioners chain of command up to the “first officer exercising GCM jurisdiction[.]” See, Response to Article 138, UCMJ, complaint.

11 December 2009: Response to Article 138, UCMJ, complaint.

30 March 2010: Letter to the President.

31 March 2010: Army counseling form DA 4856, in which LTC Lakin is told the facts in what appears to be a clear, accurate, and concise fashion. He is also encouraged to speak with Army Trial Defense Service for guidance.

31 March 2010: Date of first offense. (Note, the argument could be made that LTC Lakin failed to provide sufficient time between his letter to the President and possibly getting a response. Although with other things in this case he left it too late.)

12 April 2010: Date of missing movement “through design” a specific intent offense, in violation of Article 87, UCMJ.

I think there is an opening for LTC Lakin’s counsel to argue some sort of TMLUB. Based on my, rather limited, research in the federal cases that accept and apply this doctrine in specific intent crimes I’m not convinced it would work. I can’t see how a court would view his actions as being “reasonable reliance” on Mr. Jensen’s opinion. There are too many factors arguing the other way. Nor can I see the TMLUB as a part of a “mistake” defense. Because I think the court would see through that argument as just another way to argue the ‘my lawyer told me’ defense.

I thought about jury nullification. That’s certainly a rabbit that Mr. Jensen let loose although not in those terms. But for nullification to work you have to have a sympathetic set of facts and client. I just can’t see that. Even if the members were to view LTC Lakin as sympathetic and a prior good officer, there doesn’t seem to be any sympathy value in his knowingly disobeying orders in the manner the he has. He has put a thumb in the Army eye for a political reason rather than as a mere act of conscience.

I’m open to other ideas — ones which do not relitigate presidential eligibility.

This Article 138 discovery process must be done. LTC Lakin now has the right to discovery based on the Articles of the UCMJ. The United States Army is attempting to prosecute LTC Lakin just to cover their tracks because the Army has put other personnel out because of their refusal to deploy because the erroneously accused wanted proof of Barack Obama’s eligibility to be president. In all reason, the controversy surrounding Barack Obama’s eligibility must be put to bed. Under Article 138, he is bound by both federal laws to prove his birth, and since he is, by all accounts the Commander in Chief, he is also bound by the UCMJ.

Article 138, UCMJ, is not a discovery process and never has been. My recollection of media reporting is that LTC Lakin received an answer to his Article 138, UCMJ, letter. Here is his letter to the President, letter (I noticed he uses the “Respectfully” intended for communication to a junior, rather than the “Very respectfully,” used when communicating to a senior). The Manual for Courts-Martial (2008) contains the rules of procedure and evidence applicable to courts-martial. R.C.M. 701 Article 46, UCMJ, and case law regulates discovery in a court-martial. R.C.M. 405 regulates production of evidence at an Article 32, UCMJ, hearing.

Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall foreword the complaint to the office exercising court- martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.

See Article 138, UCMJ, Complaints of Wrongs.

It is apparent that appellant has carefully considered the legality of the orders at issue and that he has formed sincere, deeply held views about the legal basis for the deployment of his unit and the related matters of command and control and uniform arrangements. Congress has provided him 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 § 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 and Inspectors General without interference from his military superiors and with protections against reprisal, 10 USC § 1034. The record indicates that he has exercised his right to communicate with Members of Congress.

United States v. New, 55 M.J. 95, 110 (C.A.A.F. 2001) cert. denied 534 U.S. 955 (2001).

Note that when the United States Supreme Court denies a writ of certiorari they don’t often say why. Michael New was sentenced to a bad conduct discharge for among other things refusing to wear a U.N. related uniform items in preparation for deployment to UNPROFOR.

Appellant’s concerns were discussed by his father on the Internet and were reported in the popular media and noted by several members of Congress. Appellant’s noncommissioned officer leadership, company commander, and battalion commander each spoke with him to alleviate his doubts about the legality of the UNPREDEP mission and the uniform modification. At the next formation, appellant reported in unaltered BDUs and was removed from the formation. Two hours later, he was given a “second chance” to comply with the order by Lieutenant Colonel (LTC) Layfield and refused. Appellant was then declared non-deployable. 50 MJ at 735. The order and his responses formed the basis for the charge of disobedience that is the subject of the present appeal.

New, 55 M.J. at 98.

Note first that this is a congressionally established mechanism for a military member to complain about actions done by his commanding officer within his unit. Each service has a mechanism for complaints of wrongs involving non-commanding officers. For example the Navy has Article 1150, U.S. Naval Regulations.

Were LTC Lakin to be Commander Lakin, he might do well to consider the language that he could be held accountable, “if the report is found to be vexatious, frivolous, or false.” The Army I believe uses the Inspector General system. (Note also Articles 1132 and 1133 of U.S. Naval Regulations)

We should note that the right to use a complaint system is protected by statute. See 10 U. S. Code 1034. However, false statements or disrespectful statements in an Article 138, UCMJ, complaint are not protected. In this context a note to prosecutors tempted to over-reach.

Although not raised as error, we will discuss one other aspect of the sentencing testimony. Appellant’s first sergeant testified for the prosecution. When addressing the impact of appellant’s offenses on the unit and the base, he testified, without objection, that, “He’s tied up time with the IG. He’s tied up time with Congressionals having to be answered, Social Actions, every support agency on this base knows AB Newson.” One logical inference from this testimony is that appellant should somehow receive more punishment because he became a thorn in the base’s side by filing complaints with the inspector general (IG) complaint system or a member of Congress, an inference prohibited by statute. See 10 U.S.C. § 1034. Since this case was tried before a military judge sitting alone, we are confident he disregarded any improper inference from the testimony.

United States v. Newson, ACM 30936, 1995 CCA LEXIS 238 (A. F. Ct. Crim. App. September 13, 1995) (emphasis added).

Lest the uniformed feel LTC Lakin is being punished for speaking out, that is not true based on the charges.

It is clear that to violate 10 U.S.C. § 1034, a person must initiate a negative personnel action specifically in retaliation for a service member’s communication with a Member of Congress. In the present case, there is no evidence that the Government prosecuted Appellant, and that the trial counsel subsequently introduced the letter, to retaliate for any action by Appellant. The Government charged Appellant not because he wrote a letter to a Congressman, but because he wrongfully used and distributed LSD — offenses that occurred well before Appellant even wrote the letter. In short, while there may be circumstances where the use of a congressional communication in the context of a court-martial proceeding would constitute a prohibited retaliation under 10 U.S.C. § 1034, those circumstances are not present here.

United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003).

The Rainier piece agrees that, “Bringing a court-martial to bear against any person because of their refusal to deploy in these times is legitimate.” But not for LTC Lakin?

The United States Army is attempting to prosecute LTC Lakin just to cover their tracks because the Army has put other personnel out because of their refusal to deploy because the erroneously accused wanted proof of Barack Obama’s eligibility to be president.

CAAFLog reports:

President Obama was born in Hawaii subject to the jurisdiction of the United States (in other words, his parents didn’t have diplomatic immunity). He is, accordingly, a natural born U.S. citizen. See, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1898); Luria v. United States. 231 U.S. 9, 22 (1913); Elk v. Wilkins, 112 U.S. 94 (1884).

It doesn’t matter whether one or both parents were themselves U. S. citizens at the time.

The president of the United States is not bound by the UCMJ, unless he has a double secret commission or enlistment in the National Guard or Reserves. He is bound to issue rules and regulations for the conduct of courts-martial in accordance with Article 36, UCMJ. But as I’ve posted already he’s not issued any new relevant EO’s.

Let me close with the words of Dwight “ML” Sullivan:

But while I find the eligibility debate interesting, it is also profoundly irrelevant to the prosecution of LTC Lakin.

I thought I’d use this case as a way to refresh ourselves on how a defense counsel should approach an Article 32, UCMJ, hearing regardless of the accused or the charges. (I HAVE CREATED A LTC LAKIN PAGE here – which I will update as a relevant event happens or I have time.)

Cooper dominated the combative interview, demanding answers from Lakin, telling his lawyer, Paul Rolf Jensen, to let his client answer and then forging ahead with his own arguments. “I submitted Article 138 [requests],” he said. “It was the only way I could research the issue. I was asking and begging my leadership for guidance on how to address this issue.

It’s my understanding that he has been given guidance on the issue: he received a written response to his Article 138, UCMJ, complaint (an answer which he didn’t like and doesn’t agree with), and he was formally counseled (on the standard Army counseling form) of what his obligations were and the consequences of not following orders (again, not the answer he wants). At this point he has to follow orders, or he could have submitted a resignation request (which would possibly refused, that’s true).

Cooper argued that Lakin previously had taken orders from many officers without demanding their birth verification, and Jensen explained that was because the Constitutions sets the specific requirement for the president, not military officers.

Sorry, don’t see the distinction at all. This is an all or nothing issue. Either all orders issued by the President to all the armed forces are legal or they are not. Sorry LTC, can’t pick and choose on this one. Whether or not the certifications of President Obama as president and the fact that the Congress of the United States treats with him as President is irrelevant to the charges pending against LTC Lakin. At least one observer in the Washington Post implies that the LTC Lakin case may really be all about fundraising: David Weigel, “A good day for the birthers,” WPBlog 7 May 2010.

The filing of charges, however, may be part of the still-unrevealed strategy Lakin and his legal counselors are pursuing.

I found a humorous note in the article. The writer points out a typo in the charge sheet.

n support of Operation Enduring Freedom with the 32nd Calvary (sic) Regiment, 101st Airbor

The writer appropriately ‘sics’ the typo. In doing so the writer perhaps highlights what might be LTC Lakin’s calvary.

Any strategy appears to be a political one, not a legal one at this stage. At best his public statements and reasons for his misconduct might in the future be squeezed into R.C.M. 1001 as extenuation or mitigation evidence. As we know, the accused’s right to bring up matters in his sworn or unsworn statement is very broad. See e.g. United States v. Grill. Whether the reasoning is compelling enough to reduce a sentence, as opposed to aggravating a sentence, will have to be determined by the fact-finder.

Note also this point from Grill:

In United States v. Rosato, 32 MJ 93, 96 (1991), we observed that an accused’s right to make an unsworn statement “is a valuable right . . . [that has] long been recognized by military custom” and that has been “generally considered unrestricted.” We also noted that the right was not wholly unrestricted and that it would be inappropriate, for example, for an unsworn statement to include matter that was “gratuitously disrespectful toward superiors or the court [or] a form of insubordination or defiance of authority.” Under the Manual and Rosato, the right to make a statement in allocution is not wholly unfettered, but if there are abuses, they should be addressed in the context of the statements made in specific cases. The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution. If, in the future, the Manual’s traditional, largely unfettered right of allocution should lead to a plethora of mini-trials, the President has the authority to provide appropriate guidance in the Manual for Courts-Martial. Under the present rules, however, as we noted in Partyka, 30 MJ at 246, “[S]o long as this valuable right is granted by the Manual for Courts-Martial, we shall not allow it to be undercut or eroded.” See also United States v. Martinsmith, 41 MJ 343, 349 (1995) (right to make unsworn statement “considered an important right at military law, whose curtailment is not to be lightly countenanced”).

The WND article goes on in reference to an earlier birther case of a reservist:

“Rather than contesting the suit,” Day wrote, “the Army took the highly peculiar step of revoking the major’s deployment order, suggesting that the Pentagon generals are not entirely confident that they can demonstrate the legitimacy of their purported commander in chief. “The Pentagon’s decision to back down rather than risk exposing Obama’s birth records to the public means that every single American soldier, sailor, pilot and Marine now holds a ‘get out of war free’ card.”

To some extent this has been true in several cases. However, the prosecution of LTC Lakin illustrates that a person refusing legitimate orders does in fact risk a court-martial and that prior “highly peculiar” results are in fact the outlier. Perhaps the WND position of a get out card has motivated the Army to take a firm position to ensure military personnel are made aware of the risks of refusing deployment orders. The WND article goes on:

“In the (Uniform Code of Military Justice), just as you would expect, criminal defendants have the process of the court, for subpoenas and depositions under the rules that are prescribed,” Jensen said.

Um, has WND read the current version of R.C.M. 405, 701, 703, and applicable case law? WND will get a surprise when it reads about depositions in the military. It does happen that I (and DMLS at least) believe that the current R.C.M. on depositions is inconsistent with and unconstitutionally restrictive of Article 49, UCMJ. So a part of me is rooting for LTC Lakin as a way to possibly get the appellate courts to invalidate the unconstitutional restrictions on Article 49, UCMJ — actually, this reminds me to post something about a defense approach to Article 49, UCMJ and R.C.M. 703. I’ll have to break out some prior deposition notices and a motion from several years ago – case ended with a PTA.