LTC Lakin sitrep

This is the 13th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,”  “Judge to Rules (sic) . . ..”

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.

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12 responses to “LTC Lakin sitrep”

  1. mikeyes says:

    Gosh, “usurpation”; “a clear and indisputable right; “entitled to issuance of a writ as a clear and indisputable right”; I think you just handed Atty Jensen the wording for his request.

    Up till now he was stymied.

  2. The Law Office of Philip D. Cave Viking says:

    Ummmm.
    No. The “usurption” relates to what the judge did. Not what is (falsely) alleged about the president.
    To argue otherwise would be IMHO incredibly frivolous and would not be a reasonable effort to advocate a change in the law or a reasonable construction of events in a party’s favor. In such a situation the legal argument might go something like this.

    The president is a usurper.
    The military judge is a usurper.
    Therefore the military judge was wrong to deny the discovery and the witnesses.

    Sorry, he’s still stymied.
    But thanks for acknowledging that LTC Lakin”stymied.” He always was, but it’s nice to hear someone unfamiliar with military justice (apparently) accept that.

  3. BigGuy says:

    I took mikeyes to be writing facetiously, but I could be wrong.

    I believe there’s reason to wonder whether Jensen is still calling the shots. As you pointed out, the APF site has been dormant, and other birther sites have been blaming Jensen for restricting his arguments to the purported insufficiency of Pres. Obama’s birth documentation, with some individuals even suggesting that the strategy was deliberate Obama-directed sabotage.

    The advantage to the two-citizen-parent theory is that it doesn’t require any discovery — it is an acknowledged fact that the President’s father was not a U.S. citizen. But the disadvantages are far greater — not only is it no more relevant to LTC Lakin’s guilt or innocence than the BC issue, from a legal point of view it is patent hogwash.

    In my imagination, at least, the apparent dormancy of the defense team reflects serious internal dissension.

  4. mikeyes says:

    I was writing in jest, but I’ll bet others would use this language the way they did the term “embarrass.”

    My interest in the Lakin case stems from Huet-Vaughn. She was in my Reserve unit (briefly) and my job was to welcome the new physicians. I never got a chance to speak with her but did hear her diatribe against the war and her plea for others to desert with her. She even pulled out her Amnesty International and Greenpeace credentials to make the point. It turned out that many of the members of the units were also members but thought she was nuts. She took off the next day. The rest of us went to war.

    LTC Lakin’s actions have struck a chord with me and as a result I recognize nuttiness right off the bat.

  5. The Law Office of Philip D. Cave Viking says:

    Mike, then I doubly apologize.
    As Dwight “ML” Sullivan would agree I can be jestful at times and rather obtuse in doing it. And of course I should have been open to seeing that in others.
    How interesting that you have a take on Huet-Vaughn (another doctor).
    I’m so embarrassed. But I’ll try to be a big guy about it.
    Cheers.

  6. mikeyes says:

    I really appreciate this blog and CAAFLog concerning the issue. I never realized how important the Huet-Vaughn case was (we had two other physicians weasel their way out of our unit) until Lakin.

    One thing I do notice is that rarely do any veterans go the birther route with this case. Those that do have other agendas and refuse to talk about “de-facto officer” doctrine or the need for good order and discipline even though they are fully aware of the reasons for it. The rest of the objectors seem to be driven by emotion and not a respect for the Constitution. I suspect that the testimony of COL Roberts (and his MOH) will prevail no matter what birther fantasies members of the panel may hold.

    As I was taught many times, the mission is first. LTC Lakin is toast.

  7. Greg says:

    In my imagination, at least, the apparent dormancy of the defense team reflects serious internal dissension.

    It would not surprise me in the least if indeed Lakin is having second thoughts – even at this late date.

    After all, Jensen publicly proclaimed that he was not surprised that his request for Obama’s records would be denied – despite the fact that obtaining these records is the raison d’être of this entire, misguided affair. Such sharp reversal from Jensen’s own predictions in April may have presented Lakin with too great a contradiction even for Lakin to embrace.

    Nevertheless, I would not bet on it.

  8. Greg says:

    In my imagination, at least, the apparent dormancy of the defense team reflects serious internal dissension.

    It would not surprise me in the least if indeed Lakin is having second thoughts – even at this late date.

    After all, Jensen publicly proclaimed that he was not surprised that his request for Obama’s records would be denied – despite the fact that obtaining these records is the raison d’être of this entire, misguided affair. Such a sharp reversal from Jensen’s own predictions in April may have presented Lakin with too great a contradiction even for Lakin to embrace.

    Nevertheless, I would not bet on it.

  9. BigGuy says:

    “I’ll try to be a big guy about it.”
    __

    Roger that. And I’ll do my best to be a Viking.

  10. The Law Office of Philip D. Cave Viking says:

    CPT Rhoades apparently realized her error at the point in time she fired Orly Taitz and wrote the judge she’d fired Taitz, and then deployed.
    I think the difference for LTC Lakin is the forum. CPT Rhoades was not pending court-martial for disobedience of lawful orders. She could of been, but decided she’d better comply, and dodged a court-martial.
    Here, LTC Lakin is up against the necessity for good order and discipline and the need to send a message. That’s why I was always aghast when Jensen kept saying “this will be all over.” Maybe for the birthers, but not for LTC Lakin. I’m not sure if the Lakinistas understood that. Maybe LTC Lakin is starting to get the message. But like Grey, I’m not sanguine about that possibility.

  11. BigGuy says:

    Hey Phil — funny update —

    Today is now the 14th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions…

    …but they managed to correct the typo! Now it says “Judge To Rule On Defense Request…”, which is grammatically correct but unfortunately false as the ruling has already come down, and not in their favor.

  12. SueDB says:

    They are still hammering their base hard to hit that National Bank of Birthistan..err PayPal button on their web stye. Could be running short of cash? Not the big fundraiser the birfers thought it would be?

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