In this country, officers follow orders from their superiors, and they disobey orders at their own peril. Lakin was given a deployment order by a superior commissioned officer who is by US statute authorized to issue such orders. The president of the United States isn't material to Lakin's court-martial, in any way.
It pains me that there are people out there that describe themselves as "conservative", but don't have the intellectual wherewithal to grasp this rather elementary concept.
Just because you keep repeating the same thing, ad nauseum, won’t make it true. I’m sorry.
In this country, officers follow orders from their superiors, and they disobey orders at their own peril. Lakin was given a deployment order by a superior commissioned officer who is by US statute authorized to issue such orders. The president of the United States isn’t material to Lakin’s court-martial, in any way.
It pains me that there are people out there that describe themselves as “conservative”, but don’t have the intellectual wherewithal to grasp this rather elementary concept.
I had a chance to go to the Article 39(a), UCMJ, session today at which LTC Lakin was arraigned.
They began with the usual R.C.M. 802 conference in chambers with the military judge and counsel present. This is standard for most judges at the beginning of the court day.
Rule 802. Conferences ( a ) In general. After referral, the military judge may, upon request of any party or sua sponte, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial.
The court then convened with Military Judge Denise Lind presiding.
They followed the Army trial guide/script/gouge.
Noteably LTC Brodsky appeared as Assistant Trial Counsel.
Judge Lind followed the script with advice as to counsel. LTC Lakin elected to keep his current counsel and did not ask for an individual military counsel (IMC). Judge Lind assured herself all counsel were qualified and swore Mr. Jensen in.
Next she advised LTC Lakin of his forum rights: a panel of at least five members or military judge alone. As with his counsel rights LTC Lakin affirmed that he understood his rights. When asked about forum Mr. Jensen advised the military judge the defense desired to defer motions, forum selection, and entry of pleas. This is standard practice is courts-martial.
Military Judge Lind also addressed the prior Article 32, UCMJ, waiver. She obtained LTC Lakin’s agreement that he made a knowing and intelligent waiver of all of his rights at an Article 32, UCMJ, hearing unconditionally. The unconditional waiver is an oddity unless it’s a situation where there is a pending pretrial agreement or negotiations. The waiver means, as we have already commented, that there can be no issue raised now or later about the adequacy or fairness of the Article 32, UCMJ, hearing. Therefore LTC Driscoll’s actions and “rulings” are beyond any legal challenge.
The supposed request to the convening authority for a deposition and discovery was not addressed. However, the military judge now has jurisdiction and she will decide on those issues should they be raised (on or before 20 August 2010 according to the pending CMO).
Next the court discussed the schedule.
20 August 2010: Motions and witness requests and discovery due.
27 August 2010: Replies due.
2 September 2010: First Article 39(a), UCMJ, session to address issues.
14 September 2010: Second Article 39(a), UCMJ, session to address issues and final motions.
13 – 15 October 2010: Trial.
Finally MJ Lind gave the standard R.C.M. 804 warning to the non-confined accused. R.C.M. 804(c) states:
(c) Continued presence not required. The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused, initially present:
( 1 ) Is voluntarily absent after arraignment (whether or not informed by the military judge of the obligation to remain during the trial); or
(2) After being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.
Safeguard our Constitution reports that:
The Army doctor who is facing a court martial for refusing to obey orders, including a deployment order for his second tour of duty in Afghanistan, has formally requested his Commanding General approve a deposition in Hawaii of the records-keeper of the State Department of Health—and the production of all of their records concerning Barack Obama.
What does this mean in military law practice.
Under Article 49, UCMJ, 10 U. S. Code §849:
(a) At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an attorney competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.
(Note, Dwight Sullivan and I are of the view that the defense need not ask for permission to conduct a deposition based on a fair reading of the language of Article 49. However, I have litigated that in at least one case and didn’t get anywhere with the issue. )
Under R.C.M. 702, Manual for Courts-Martial, United States (2008), the president using his Article 36, UCMJ, 10 U. S. Code §836, powers has set out the depositions procedure in more detail. There are a number of points that will be contentious.
(a) In general. A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an investigation under Article 32 or a court-martial (emphasis added).
Those of us practicing in the pits know that generally there is no exceptional circumstance if the witness is going to be available for trial. And the deposition request is often denied for this reason. Civilians can be subpoenaed to be a witness at a court-martial. (We can talk more about R.C.M. 703 and witnesses when that becomes an issue.) Assuming a subpoena, the witness will be paid travel, lodging, and meals for attendance. A subpoena may be enforced by a warrant of attachment if necessary. See also, Article 47, UCMJ, 10 U. S. Code §847. The individual business records can be subpoenaed using a subpoena duces tecum. In my experience depositions are most often used with overseas witnesses who are not subject to subpoena or U. S. citizens who cannot be subpoenaed to appear as a witness at a court-martial held outside the United States.
I had a case some years ago where all four of the prosecution witnesses were Cypriots and refused to travel to the U. S. to testify. Depositions have also become common in A/Stan and Iraq related cases.
If the deposition is denied by MG Horst, Commander Military District of Washington, the defense can litigate this by pretrial motion.
R.C.M. 702(c)(3)(A) states that:
(A) In general. A request for a deposition may be denied only for good cause.
The non-binding discussion to the rule states that:
Good cause for denial includes: failure to state a proper ground for taking a deposition; failure to show the probable relevance of the witness’ testimony, or that the witness’ testimony would be unnecessary. The fact that the witness is or will be available for trial is good cause for denial in the absence of unusual circumstances, such as improper denial of a witness request at an Article 32 hearing, unavailability of an essential witness at an Article 32 hearing, or when the Government has improperly impeded defense access to a witness.
(Note: LTC Lakin waived his Article 32, UCMJ, hearing therefore he waived using “improper denial” of the witnesses at the Article 32, UCMJ, hearing as a basis to request a deposition. This seems to have been a point where the defense at the time of the Article 32, UCMJ, hearing could have done a much better job of setting up the issue. I would start the analysis of this issue with United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978) which deals with the failure to make a witness available at an Article 32, UCMJ, hearing. And always keep in mind that the LTC Lakin waived his Article 32, UCMJ, hearing.)
I’m not convinced the Analysis (found as an appendix in the MCM) to the Rule aids the defense:
A deposition is not a discovery device under the Federal rule. 8.J. Moore, supra Para. 15.02[1]. See also United States v. Rich, 580 F.2d 929 (9th Cir.), cert. denied, 439 U.S. 935 (1978); United States v. Adcock, 558 F.2d. 397 (8th Cir.), cert. denied, 434 U.S. 921 (1977). The Court of Military Appeals has held that depositions may serve as a discovery device in certain unusual circumstances. See Analysis, subsection (c)(3)(A) infra.
Consequently, “exceptional circumstances” may be somewhat broader in courtsmartial. Nevertheless, the primary purpose of this rule is to preserve the testimony of unavailable witnesses for use at trial. See Article 49; Hearings on H.R. 2498 Before a Subcomm. of the Comm. on Armed Services 81st Cong. 1st Sess. 1064–1070 (1949).
I wholeheartedly agree with the principal that discovery is broader in the military. The military justice system provides for broader discovery than required by practice in federal civilian criminal trials. See e.g., United States v. Williams, 50 M.J. 436, 439-40 (C.A.A.F. 1999). But depositions are not the normal avenue for discovery outside the Article 32, UCMJ, process. In Williams the CAAF had this to say about the broad military discovery right.
The military justice system has been a leader with respect to open discovery and disclosure of exculpatory information to the defense. See Moyer, Procedural Rights of the Military Accused: Advantages Over A Civilian Defendant, 51 Mil. L. Rev. 1, 11-14 (1971). As noted in the Drafters’ Analysis accompanying RCM 701, “[m]ilitary discovery practice has been quite liberal,” with “broader discovery than is required in Federal [civilian] practice.” Manual, supra at A21-31; see United States v. Hart, 29 MJ 407, 410 (C.M.A. 1990).
The foundation for military discovery practice is Article 46, UCMJ, 10 USC § 846, in which Congress mandated that “[t]he trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” See United States v. Enloe, 15 U.S.C.M.A. 256, 258-59, 35 C.M.R. 228, 230-31 (1965). The President has implemented Article 46 by setting forth specific discovery and disclosure responsibilities in RCM 701. We have interpreted RCM 701 and related rules to ensure compliance with the equal-access-to-evidence mandate in Article 46. See United States v. Eshalomi, 23 MJ 12 (C.M.A. 1986). We also have interpreted these rules to ensure that discovery and disclosure procedures in the military justice system, which are designed to be broader than in civilian life, provide the accused, at a minimum, with the disclosure and discovery rights available in federal civilian proceedings. See, e.g., United States v. Walbert, 14 U.S.C.M.A. 34, 33 C.M.R. 246 (1963) (applying the “Jencks Act,” 18 USC §3500, to military justice discovery practices).
I have already mentioned that the witness would likely be available for trial. So we come back to the issue: what if anything is the relevance of deposing potential witnesses about President Obama’s birth and birth certificate?
If you have been following the discussion so far you will know that those of us who know and practice military law as our profession are having a hard time fathoming the relevance to LTC Lakin’s case. Just because the defense says it is doesn’t make it so. So I think it likely that the CG will deny the deposition request. That makes the next real battle worth watching the discovery request after charges are referred, assuming they are. Here’s something else to wet the appetite.
Discovery practice is not focused solely upon evidence known to be admissible at trial. See United States v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)(materiality standard normally “is not a heavy burden,” evidence is material as long as there is a strong indication that it will “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.)(citations omitted); United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).
(If anyone has access to the request and is willing to share it, I’d be interested in knowing what the defense said for items R.C.M. 702(c)(2)(B) and (C) of the required content.
(B) A statement of the matters on which the person is to be examined;
(C) A statement of the reasons for taking the deposition; and)
(On a personal note. The oddity here is that the defense could have asked for the witness to testify by telephone at the Article 32, UCMJ, hearing, which the defense waived, and they could have asked or pushed for production, which they waived. That would have put them in a far superior position now to be arguing and whining they didn’t get a full and fair Article 32, UCMJ, hearing. I just can’t fathom this. They want to make issues, but they don’t take advantage various points in the process to lay their foundation.)
OK, had a chance to think about this? Let’s look at the deposition from two sides.
As a defense counsel I don’t think I would have approached the issue this way. But that’s because I’m used to the military justice system and how to get “discovery” which is different from the process in civilian courts. Anyway. There’s nothing wrong with the deposition approach to try and set up the issue even though it is (should be) a loser. That is because the defense will likely get the witnesses and the documents through discovery and through a pretrial motion on the legality of the order. The defense submits a discovery request, the government gets the official documents, and if there is a hearing on the lawfulness of the order various witnesses can testify in an Article 39(a), UCMJ, 10 U. S. Code §839(a), hearing. I’ve certainly tilted at this windmill in the past, for example seeking to depose the Secretary of the Navy and the General Counsel to the Navy.
As a trial counsel (prosecutor) I think the process would be as follows.
1. Recommend to the SJA and CG that they deny the deposition because there is an insufficient showing of necessity; witnesses will be made available and evidence will be produced in accordance with R.C.M. 701.
2. In response to a motion to order depositions I would argue the lack of necessity; I would argue that the prosecution has already sent a subpoeana to the appropriate Hawaiin authorities to get official records (to be certified in accordance with Mil. R. Evid. 902); and that should the defense seek to litigate the lawfulness of the orders the prosecution intends to make the Hawaiin officials available for telephone testimony on the motion. Telephone testimony by witnesses in a pretrial motions session is common in the military where oftentimes a witness is in a different part of the world or the country. As has been explained many times elsewhere, in United States v. New, 55 M.J. 95 (C.A.A.F. 2001) cert. denied, New v. United States, 534 U.S. 955 (2001), the CAAF reasserted the basic principle that it is the military judge who makes a ruling on the lawfulness of an order. Once the military judge (MJ) rules on the lawfulness of the order the issue is resolved for the Members. Of course the issue of the order’s lawfulness can be raised on appeal.
3. At this stage the prosecution has nothing to lose in cooperating with the defense to get the testimony of the officials and the documents available in the official records. IMHO the worst position for the government would be to refuse to get the official records from Hawaii or to make the witness available by telephone on the motion. Moot the issue, accede to the defense requests for motions testimony and certified copies of the official records.
4. In the process the prosecution can ask the court for the documents to be sealed, that the parties be prohibited from further distribution of the documents, and that the documents be made available by later court order if necessary, for an appeal for example. The documents would contain personal information ultimately irrelevant to the issues in the case. Remember, discovery in a criminal trial is not about a public right to know, it’s about an accused’s right of access to information that may be helpful to the defense.
What's not true about the following?
Fact: It is a simple matter to prove that one is a natural born citizen.
( What's not true about this?)
Fact: Obama has gone to considerable effort and spent tax dollars and his own to prevent the release of the common documents that would prove ( or disprove) his natural born status.
( What's not true about this?)
Fact: A natural born president would be **HONORED** to promptly prove ( with the **best** evidence) to any soldier or citizen that he was indeed natural born and eligible to be president and Commander in Chief.
( What's not true about this?)
Conclusion: That Obama has treated military officers and citizens in the manner that he has, strongly indicates that he is a usurper.
( What is faulty about conclusion?)
“Just because you keep repeating the same thing, ad nauseum, won’t make it true. I’m sorry.”
Well, how about a “new” or old things for a change???
http://www.freerepublic.com/focus/f-bloggers/2565896/posts