Replies

"Lakin is on trial and U.S. Army must prove he is guilty beyond a reasonable doubt. "

Right. But remember, in a military court of law, the orders are presumptively legal. The burden of proof with respect to the lawfulness of his orders, falls to the defendant see: United States v. Smith, 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972).

Moreover, the lawfulness of the order is a matter of law to be decided by the military judge, not the jury panel. The judge will instruct the jury panel that the orders were indeed lawful, and they will never hear Barack Obama's name mentioned, and certainly there will be no mention of his alleged ineligibility to hold office.

The prosecution will establish that Lakin missed movement by entering into evidence his deployment orders as well as testimony from superior officers that Lakin didn't deploy. That's the ballgame.

"The burden of proof with respect to the lawfulness of his orders, falls to the defendant see: United States v. Smith, 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972)."

That wasn't very well put. I should have said that "the burden of proving the order unlawful, falls to the defendant...."

And no, the military judge is neither going to grant discover or entertain even for a moment the assertion that Barack Obama may be ineligible for the office, as Barack Obama didn't order Lakin deployed - SecDef Gates did, or someone subordinate to him.

“Moreover, the lawfulness of the order is a matter of law to be decided by the military judge, not the jury panel. The judge will instruct the jury panel that the orders were indeed lawful, and they will never hear Barack Obama’s name mentioned, and certainly there will be no mention of his alleged ineligibility to hold office.

The prosecution will establish that Lakin missed movement by entering into evidence his deployment orders as well as testimony from superior officers that Lakin didn't deploy. That's the ballgame.”

Exactly.

“The burden of proof with respect to the lawfulness of his orders, falls to the defendant see: United States v. Smith, 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972).” In your assessment then, the burden of proof falls on Lakin, but you expect that Lakin will be denied the opportunity to obtain discovery evidence in HI vital records to defend himself.

Lakin is not asking the court to rule that Obama is ineligible. That, in my view, is false framing. Lakin is asking the court to find him innocent of disobeying a lawful order.

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. Obama’s active legal refusal to release his original vital records is sufficient evidence to compel Lakin to fulfill his sworn duty to protect and defend the constitution by refusing to take orders from a man whom Lakin honestly believes has knowingly usurped the presidency.

Lakin must be proven guilty beyond a reasonable doubt. If the court-martial proceeding should find Lakin to be “not guilty” due to discovery that it cannot be proved via Obama’s original contemporaneous birth vital records that Obama was born in HI, no violation of constitutional separation of powers will have occurred. A finding that Lakin is “not guilty” beyond a reasonable doubt is not the same as a finding that Obama is not eligible to be president.

The court can only apply the law to the facts within the scope of its jurisdiction. 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.

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. The court is free to ignore any evidence Lakin places before it, but I do not believe that the court can prevent Lakin from undertaking broad discovery in his defense.

Here is the case which seems to affirm a duty on the part of the prosecution and court not to suppress discovery of evidence which will exculpate Lakin or impeach the prosecution’s case:

http://court-martial-ucmj.com/discovery/discovery/

United States v. Best, No._________, 2009 U.S. Dist. LEXIS 119802, at *19–20 (M.D. Pa. Dec. 23, 2009).

http://www.freerepublic.com/focus/f-news/2498583/posts?page=279#279

Any evidence in possession of the government prosecution, such as Obama State Dept passport files or perhaps evidence readily available to the government prosecution via its own discovery which would include HI vital records to affirm CIC Obama’s own representations might fall under the requirements of disclosure in US v. Best.

The military is required to presume that the CIC is an honorable man. If Obama is an honorable man and has been telling the truth, discovery of his HI vital records can only be expected to verify the lawfulness of his orders as CIC and thus could only be expected support the prosecution case. The prosecution should be stampeding to HI to obtain the vital records to seal Lakin’s conviction! Any attempt by Obama to impede conviction by preventing the prosecution from obtaining full discovery of HI vital record evidence beyond a reasonable doubt would be dishonorable of Obama as well, in my opinion.

If Lakin gains the right to pre-trail discovery of Obama’s HI vital records, I would expect that the entire court-martial would be derailed before the actual trial could start by a political crisis which could well move to resignation or impeachment depending on what Obama is hiding in the HI records, and only he and his attorneys know what that is.

Just my non-lawyer impression and I invite correction/education/rebuttal from the JAG experts.