1. Trial is continued until 4 November 2010 from 13 October 2010. Not sure of the reason. It appears Mr. Jensen asked the judge to hold the case “in abeyance” pending resolution of an (untimely?) writ which has been filed with NMCCA. According to Charlie the defense said the reason for the potentially untimely filing was “for reasons I can’t get into right now[.]” Huuuuuuuum, this has resonance. I think I’ll try this one in a couple of weeks. (Note to DMLHS, this citation to authority has to be on the top ten this year.)

2. Unsurprisingly to those familiar with military justice the judge ruled the orders to be legal.

3. Unsurprisingly the judge ruled that several defense witnesses would not be permitted to testify as experts in constitutional law and obedience to orders. No doubt the prosecution would have had many people who could testify in opposition.

4. The military judge granted a prosecution motion in-limine to preclude “irrelevant” information and testimony about the president and his birth.

Hearing this, the civilian defense counsel remarked that this gutted the defense case, and he had to put on some sort of defense. Apparently, LTC Lakin is chomping at the bit to testify in his own defense, so that might be the sum total of the defense case after today’s rulings.

According to a piece in WorldNetDaily:

“We got absolutely slammed today,” said Paul R. Jensen, lead counsel for the defense. “It’s impossible for us to have a fair trial under these rulings.” “Our arms were cut off last time,” said Jensen. “Our legs are being cut off this time.”

I had opined in a recent radio interview that LTC Lakin had been cut off at the knees by the 2 September 2010 rulings. I guess I was ahead of myself. Seems like he got what’s euphemistically called in some circles as a six-pack.

Still no posting of the Writ on safeguardourconstitution.

The above is from the discussion of the political question doctrine. The sole use of the word embarrassment is here:

Welcome to the club of just about every accused who faces court-martial charges.

He cited a long list of “reasonable arguments” raising questions about whether Obama was born on American soil.

Assuming arguendo that there are reasonable questions about President Obama’s citizenship, the questions remain irrelevant to LTC Lakin’s court-martial.

Lakin’s attorney, Paul Rolf Jensen, told WND that of all the dozens of cases that have been brought to various courts over the issue of Obama’s eligibility, Lakin’s probably is the strongest yet. He said that after the preliminary procedures but before the actual trial, there will be a time for the discovery of evidence. Jensen expressed confidence that the necessary information will be obtained. “This is a criminal case,” he noted, with a possible punishment of several years in jail. “In order for a criminal defendant to defend himself in a criminal court he has to be given the opportunity to put on a defense.” “The records are relevant.”

A broad statement of “relevance” will not get LTC Lakin too far in the legal debate as to discoverability of birth records. Note once again, LTC Lakin inexplicably forfeited an opportunity to succinctly argue the merits of the relevance claim by waiving the Article 32, UCMJ, hearing.

He said Driscoll’s order would have allowed a “defense” but only the defense that would have been approved by prosecutors.

This is drivel.

But Lakin said the result “makes it impossible for me to have a fair hearing.” “I cannot even raise the issue of the president’s eligibility, on the grounds that my position has ‘no basis in law,'” he said

He’s getting a “fair” hearing within the rules of R.C.M. 405 and Article 32, UCMJ.

He is wrong that he can’t raise the issue. His defense counsel was in fact invited, “expressly instructed” to do just that – provide a scholarly brief on why the requested information was necessary.

Driscoll then blamed the defense for not giving him what he wanted.

Yes, that’s right, when the defense doesn’t do something they are requested to do, told to do, or ought to do, they can’t complain that the, in this case, IO didn’t give them what they asked for. It is the obligation of the defense counsel, especially when called upon, to ask, be specific, and give a legal and factual reason – a pleading – on why something should be produced. This is done in all courts of law not just LTC Lakin’s Article 32, UCMJ, hearing. This is something that is second nature to trial lawyers. You don’t just make bold bald requests.

“I expressly instructed ‘[y]our submissions, if any, on the subject of lawfulness of orders, derivation of authority, political questions and the like should be sufficiently scholarly to allow me to make an informed determination of relevance of the requested items to the truth of the specifications and charges at issue,” Driscoll wrote.

LTC Lakin’s counsel failed to do what he was requested to do. It is the failure of the defense counsel, not the IO.

“There is no scholarly discussion of what constitutes an illegal order or under what circumstances such an order can be disobeyed or must be disobeyed.”

WorldNetDaily. This piece about commentary from MG Paul Vallely, USA, appears to be the latest piece: “Retired Army general: LtCol Lakin has a ‘valid point.’

The filing of charges may, however, be part of the still-unrevealed strategy Lakin and his legal counselors are pursuing. Asked whether Lakin will have a “right of discovery” during a court-martial – meaning Lakin’s legal team could compel the administration to produce proof of eligibility during the course of the government’s prosecution – Vallely replied, “Absolutely. Sure, he has a right to discovery. There’s no doubt about that. Producing a birth certificate that has all the details on it, it seems to me, is very important.” Vallely added, “You can call witnesses. I would call the state government of Hawaii. I would require [proof of] which hospital he was born in. I’d want verification from the doctor or the nurse or whomever witnessed it that, in fact, it did happen in Hawaii. That has not been done to date. These are questions that have not been answered, and that’s what concerns many people.”

Biography courtesy of Wikipedia. Along with an interesting history – none as a lawyer –

In 2008, it was revealed that he had been one of a dozen “military analysts” recruited by the Pentagon to spread favorable views of the Iraq warthroughout the news media.

American Patriot Foundation. Their latest post seems to be the one with the charge sheet as a link.

Talking Points Memo Muckraker. For example, today it is reported that an Article 32, UCMJ, investigation has been appointed. The 32 is a necessary step toward a general court-martial prosecution. In addition to Article 32, UCMJ, itself, Rule for Courts-Martial 405 lays out the procedure, rules of practice, and rules of evidence applicable to the Article 32, UCMJ, investigation.

Once the investigation is complete, the investigating officer will make a recommendation on the charges and disposition. This is a recommendation only.