The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.” I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive. If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

The Criminal Rules Enabling Act, Max Minzner, University of New Mexico School of Law July 10, 2012 46 University of Richmond Law Review 1047 (2012)

Abstract: The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA. This article argues that this approach is a mistake. Even under the most constrained view of the Rules Enabling Act, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the Enabling Act and the Civil Rules, I provide a framework for applying the Act to the Criminal Rules and examine the constraints of the REA with respect to four Rules of Criminal Procedure that face validity challenges. In addition to identifying these Enabling Act issues, this article proposes potential interpretations of these Rules that can reduce their substantive effect by either reading the Rules narrowly or grounding the doctrines in federal common law, rather the Enabling Act.

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.