Whatever it is Lakin is asking, to a military judge in a military court of law, is irrelevant with respect to Obama's eligibility. I don't know how more plainly I can put it.
Regardless of what I say (or anyone else says), or what supporting case law or relevant statute is cited, people who wish to believe Lakin has "a fighting change" will believe it. This will all be settled relatively soon, presuming of course Lakin doesn't change tack and move for alternative disposition. The chances of Lakin being granted discovery on anything having to do with Barack Obama's alleged ineligibility is zero. The chances of Lakin prevailing on appeal of such a denial of discovery, is zero.
If you can find a JAG officer who wishes to go on record and argue that Lakin has even a minimal chance of prevailing at trial, and on the law, please cite him as I would LOVE to read his reasoning.
"I expect Lakin will claim he is innocent because, as he has stated, in good conscience he has concluded that Obama’s active suppression of discovery of his HI vital records betrays consciousness by Obama of evidence of his own ineligibility. "
Lakin can plead not guilty, guilty or he can move to argue an affirmative defense and proffer some reason why he disobeyed the order. But, the hearing to determine the order's lawfulness will be something that will be decided in the absence of the jury panel. As a matter of law, it is a decision that is left to the military judge. The jury panel will then be instructed that the orders were lawful, presuming that is what the military judge finds - that is a remarkably safe bet. I would add that motivation is not an element that needs to be established to obtain a conviction on an Art. 87 spec. The four elements needed to be proven by the government to establish guilt on Art. 87 are...
(1) That the accused was required in the course of duty to move with a ship, aircraft or unit;Essentially, similar to Huet-Vaughn, Lakin's motivation to include his belief that Obama is not an eligible president is immaterial.
(2) That the accused knew of the prospective movement of the ship, aircraft or unit;
(3) That the accused missed the movement of the ship, aircraft or unit; and
(4) That the accused missed the movement through design or neglect.Paragraph 11(b) Part IV, Manual for Courts-Martial, United States (2005 ed.). The accused’s motive not to deploy and his belief about the lawfulness of the Iraq war are not elements of the offense. Motive is, therefore, irrelevant on the merits. United States v. Huet-Vaughn. 43 M.J. 105, 114-115 (1995).
"the court has no jurisdiction over the eligibility of Obama so it cannot deny Lakin discovery of Obama’s HI vital records on the basis that this might result in Obama being declared ineligible. That is not within the power of the court-martial."
It can and it will deny discovery - not for the reason that you posit - but, because Obama's eligibility is immaterial to Lakin's orders. Any JAG with 5 minutes of experience could tell you this. Why Lakin didn't consult with competent military counsel, is a mystery.
"Case law seems to indicate that Lakin is entitled to obtain discovery of facts which will exculpate himself, for example lack of contemporaneous evidence that Obama was born in HI. "
Case law says no such thing. Before discovery motions are granted, trial counsel must agree that the discovery is relevant and material. If TC disagrees, then the defense counsel may appeal to the military-judge and then move for interlocutory appeal. They will all affirm the military judge's order, easily (or refuse to hear the appeal, more likely).
I'm not an appellate attorney, but I believe this is where things get a little tricky for Lakin and his counsel. If he wants to preserve MJ order denying the discovery motions of Obama's record for appeal, I think he has to change his plea to "not-guilty". I could be wrong, perhaps someone with more appellate experience could comment. In any event - with either a plea of non guilty, or some kind of affirmative defense, defense counsel will not be allowed to raise Obama's alleged ineligibility in front of the jury panel.
This really is not that complicated. There are some potential pitfalls for the military judge with respect to particular jury instructions in these affirmative defense cases especially when pleas are changed mid-trial, as the Watada case underscores, but those should be easily avoided with a competent judge.
What if Lakin already has the evidence that Obama is not only ineligible but that he is guilty of felonies?
Is the military judge going to go on the record saying it makes no difference to anything?
Is that military judge then going to report those crimes to the proper authorities, and if he doesn’t will he himself be guilty of misprision of felony?
Thanks for your very detailed reply.
It could be extremely politically embarrassing to Obama for the prosecution counsel to refuse to allow discovery because discovery should prove Lakin’s suspicions to be unjustified and that Obama is telling the truth, if indeed he is telling the truth.