Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights[.]

The following Rules are relevant to a writ.

Rule 2(b). The court has discretion to “entertain petitions for extraordinary relief,” and that would be under the All Writs Act, 28 U. S. Code Sec. 1651(a). See Noyd v. Bond, 395 U.S. 683, 695, n.7 (1969); Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998).

Rules 8 and 13. I am assuming that Mr. Jensen is not formally admitted to practice before ACCA, or any other military appellate court except possibly CAAF. Thus he would have to appear pro hac vice. I don’t have any indication that Mr. Jensen has asked for appointment of military appellate counsel to assist.

Rule 20.

If a show cause order is issued the government has 10 days to answer, and then the petitioner has seven days to answer the government’s filing.

So, the first guess, will ACCA issue a show cause order? My guess, no. Here is the language from the rule that most of us are relying on to say that LTC Lakin won’t get his requested relief.

This is the 13th day that LTC Lakin and his team have failed to file a petition for a writ of mandamus or prohibition with the Army Court of Criminal Appeals. (I’m reliably informed that no such petition has been filed as of yesterday.)

1. Delay in filing the writ will not necessarily gain delay in the trial.

a. I suspect Judge Lind will deny a continuance request based on the filing of a writ. And certainly any counsel knows that waiting to file a writ until the last minute will not assist garner a favorable continuance ruling.

b. I suspect ACCA will deny a request to delay trial pending resolution of a writ, and might actually deny the writ and a delay both at the same time.

2. In preparing my posting on MAJ Hasan’s request to have his Article 32, UCMJ, hearing closed, I came across Doe v. Naval Special Warfare Command San Diego, . Here is what Doe says that is apropos to LTC Lakin (citations omitted).

The issuance of an extraordinary writ, however, is,

“a drastic remedy that should be used only in truly extraordinary situations.” It is generally disfavored because it disrupts the normal process of orderly appellate review. For that reason, “to justify reversal of a discretionary decision by mandamus [or prohibition], the . . . decision must amount to more than even gross error; it must amount to a . . . usurpation of power.” The petitioner has the burden of showing that he has “a clear and indisputable right” to the extraordinary relief that he has requested. (holding settled limitations on power of appellate courts to review interlocutory orders requires more than simple showing of error; petitioner must prove he had a clear and indisputable right to a particular result or decision that he was not able to obtain from lower court).

Shadwell v. Davenport, 57 M.J. 774, 778 (N.M.Ct.Crim.App. 2002). Since the issuance of such a writ is a drastic remedy and because it disrupts the normal course of appellate review, it should not be invoked in cases where other authorized means of appeal or administrative review exist, Aviz, 36 M.J. at 1028; McKinney, 46 M.J. at 873-74. Accordingly, to justify extraordinary relief, the petitioner bears a heavy burden of demonstrating that he is entitled to issuance of a writ as a clear and indisputable right. Aviz, 36 M.J. at 1028.