More thoughts on LtCol Eidsmoe’s thinking

This is the 9th 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) . . ..”

The Greeley Gazette, hometown newspaper for LTC Lakin has the piece, “Retired JAG Officer Says Judge’s Ruling Against Discovery for Lakin Could Derail Case Based on Legal Precedent.”   I posted earlier two quick disagreements with the piece, or what was said in the piece.

First this item:

In issuing the decision, Lind said Lakin would not be permitted to call witnesses because it has the “potential for embarrassment” of the President. Margaret Hemenway, spokeswoman for Col. Lakin, said the judge appeared to imply Lakin could be a racist by asking if this would be happening if Bush were the commander-in-chief.

You can now read the full text of Judge Lind’s findings and conclusions.  Even a superficial read of the document will show that the comments attributed to Ms. Hemenway are unfounded.  There is nothing specific to embarrassing the president in the findings and conclusions.  And there is nothing remotely to find any implication that the military judge thought LTC Lakin to be racist.  This is fiction.

It was the defense that introduced the idea that people might think LTC Lakin to be a racist!  During the discussion on witness production MAJ Kemkes was giving, as is typical, a summary and rationale for certain witnesses.  I have commented on this part before.  MAJ Kemkes indicated that they wanted quite a few Soldiers from LTC Lakin’s most recent unit “to rebut any inference that he is a racist or doesn’t like women in the military,” or words to that effect.  MAJ Kemkes made reference to some media speculation about LTC Lakin being a racist and so they wanted several character witnesses who were themselves African-American and/or female to show LTC Lakin is not a racist.  I think it most unfortunate that a commentator seek to ascribe to the military judge or some other party to the case something the defense said, apparently in a way calculated to ire some about the military judge’s rulings.

Second this item:

The issue of the president’s birthplace is outweighed by “the danger of confusing the issues” according to prosecutors.  Eidsmoe said these statements could possibly cause problems for the government’s case based on precedent set in another recent high profile case involving Lt. Col. Michael Murphy.

This is how LtCol Eidsmore apparently summarizes United States v. Murphy., Misc. Dkt. No. 2007-03, 2008 CCA LEXIS 511 (A.F. Ct. Crim. App. December 22, 2008).

Murphy was a high ranking official who served as general counsel to the White House Military office under President George W. Bush. In 2006 the Air Force discovered he had been disbarred for over 20 years in Texas and Louisiana, however, Murphy had told the Air Force he was never subject to any disciplinary issues. The military charged him with nine counts of conduct unbecoming an officer and one count of failure to obey a general regulation. At the arraignment his lawyers requested records from his time with the WHMO arguing the records were needed in order to provide a defense. The WHMO refused to release the documents requested and the judge agreed, ruling that the information was not harming the lawyer’s ability to mount a defense to the charges which did not directly relate to his time at WHMO.

The Air Force Times reported that, “The information would not relate to the facts of the case but could have been useful in presenting what is known as the "good airman” defense, a doctrine in military law that allows the defense to present information about the defendant’s character and job performance.” The judge also ruled that a lack of access to the records would affect the defense’s ability to demonstrate Murphy’s good conduct and performance during the sentencing phase of the trial, calling the ability to present mitigating evidence about conduct “a substantial right of a military accused.” The judge also ruled that even if found Murphy he could not be punished and the Air Force of Criminal Courts agreed.
Eidsmoe said the circumstances in the Murphy case are very similar to Lakin’s case with the refusal to allow documents and witnesses related to the President’s eligibility.

1.  Because of Colonel Murphy’s seniority Colonel Henley, Chief Judge, Army Trial Judiciary, sat as the military judge.  Colonel Henley is Colonel Lind’s supervisor.

2.  The basic issue in Murphy was access to detailed information about Colonel Murphy’s work at the White House that was classified and which, the defense argued, was relevant to Colonel Murphy’s good military character as a defense and for sentencing in the event of conviction.

3.  The judge in Murphy found the specific classified information not relevant for the merits, ruling that there was other information available that could get across good military character while at the White House.  As people know, specific instances of conduct are not admissible as part of a good character defense unless through cross-examination or to rebut something raised on cross-examination.  So, I am not seeing the similarity at all between United States v. Murphy and United States v. Lakin, for the merits in regard to a good soldier defense.  It appears that LTC Lakin will have ample opportunity through documents and witnesses to present his good military character defense, information prohibited to Colonel Murphy because of the White House refusal to grant access to classified information.  So any analogy to Murphy for this basis is – well — frivolous and nonsensical, IMHO.  I’m not seeing the similarity between the two cases.  I fail to see how the president’s qualifications or the lawfulness of an order are relevant to a good Soldier defense.

4.  Now, let’s look to sentencing in United States v. Lakin.  It is generally recognized that the ability to present evidence in extenuation and mitigation is broad and that an opportunity for the accused to testify or make an unsworn statement is similarly broad.  However, the right to say anything at all has some limits.  For example the issue of comparative sentences, the issue of administrative discharges, and some other collateral issues.  See e.g., United States v. Barrier, 61 M.J. 482 (C.A.A.F. 2005); United States v. Snelling, 14 M.J. 267 (C.M.A. 1982); United States v. Mamaluy, 10 U.S.C.M.A. 102, 27 C.M.R. 176 (C.M.A. 1959).

We review a military judge’s decision to restrict an accused’s sentencing statement for abuse of discretion. See generally [United States v.] Grill, 48 M.J. at 132. The Manual for Courts-Martial, United States (2002 ed.), provides an accused with the right to "testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution . . . ." Rule for Courts-Martial (R.C.M.) 1001(c)(2)(A). This traditional right has been described as "broadly construed" and "largely unfettered." Grill, 48 M.J. at 133. However, while "the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained." United States v. Tschip, 58 M.J. 275, 276 (C.A.A.F. 2003); United States v. Jeffery, 48 M.J. 229, 230 (C.A.A.F. 1998).

United States v. Sowell, 62 M.J. 150, 152 (C.A.A.F. 2005).  In Sowell (a 4-1 decision) the CAAF held that NMCCA was wrong in upholding a limit on Sowell’s unsworn statement, because it was made in rebuttal to information introduced by the prosecution.  Assuming LTC Lakin’s prosecutors do not open the door, then, arguably here is the most important part of Sowell for LTC Lakin.

In Grill, while describing the right of allocution as largely unfettered, we also stated that the right, while "generally considered unrestricted," "was not wholly unrestricted." Id. at 132 (emphasis added); see also Tschip, 58 M.J. at 276. In United States v. Teeter, 16 M.J. 68, 72-73 (C.M.A. 1983)(no obligation to provide accused two chances to defend on the merits through unsworn statement), and more recently in United States v. Barrier, 61 M.J. 482 [] (C.A.A.F. 2005)(information in unsworn statement must be relevant as extenuation, mitigation or rebuttal), we identified specific limitations on the right of allocution. We also recognized that the unsworn statement remains a product of R.C.M. 1001(c) and thus remains defined in scope by the rule’s reference to matters presented in extenuation, mitigation, and rebuttal. And, as early as United States v. Tobita, 3 C.M.A. 267, 271-72, 12 C.M.R. 23, 27-28 (1953), it was held that on sentencing, the accused cannot impeach the findings.

Id., (emphasis added).

5.  LTC Lakin will be allowed to say that he disobeyed the orders because  . . .   I don’t think he can be prohibited from saying that in an unsworn or sworn statement.  Whether or not that is in fact mitigating or extenuating and whether or not it is wise to say is a matter for him and his defense counsel to discuss.

6.  Finally, LTC Lakin’s case is one of a significant number of cases which make clear, again, the argument for why the military needs to get on PACER or something similar.  I have asked for copies of documents in this case, Dwight “ML” Sullivan of CAAFLog has asked for documents, and Gene Fidell on behalf of NIMJ, has asked for documents.  So far no luck to official requests under the FOIA.  It’s ironic that Walter Fitzpatrick of JAGHUNTER fame can get them.  Members of the public have almost immediate access to federal court filings, rulings, court orders, and decisions, albeit for a small fee, through PACER.  Not so the military.

7.  CAAF is to be commended for a small step for military-justice-wonk-kind in announcing briefs will be posted on the website for cases scheduled for oral argument (effectively then for most cases granted).

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14 responses to “More thoughts on LtCol Eidsmoe’s thinking”

  1. Dwight Sullivan says:

    My Liege, a Lakin supporter’s attempt to analogize Lakin to Murphy is bizarre. As you point out, in Murphy Judge Henley concluded that, with some restrictions he imposed on the government concerning its response to a good military character defense, he could conclude that denied of the requested discovery wouldn’t harm the accused on the merits.

    Beyond that, THE key factor in the Murphy case is that the United States government wouldn’t release documents in its own possession to the military judge for an in camera review. Because the government declined to let Judge Henley look at the documents, he couldn’t decide how helpful they would be to the defense in sentencing. So he, in essence, gave the government a choice: (1) let me see the documents in chambers to assess their mitigating effect; or (2) have Col Murphy’s sentence capped at no punishment. The government chose the latter. If that ruling has some applicability to the Lakin case, it escapes me.

    One other thing should be of note: nothing that occurred in the Murphy case is binding precedent for the Lakin case. Military judges’ rulings don’t have precedential effect. And Judge Henley’s ruling was appealed to the Air Force Court — whose rulings don’t have stare decisis effect in Army courts-martial, such as LTC Lakin’s. Additionally, the Air Force Court’s ruling was unpublished, so it wouldn’t be binding precedent even in an Air Force court-martial. And the Judge Advocate General of the Air Force elected not to certify the case to CAAF.

    So LTC Eidsmoe’s analysis seems off base.

  2. TJ Hunter says:

    On “embarressment” (an ongoing discussion at

    The Oxford English Dictionary says:

    [ad. F. embarrasser, lit. ‘to block, obstruct’, f. embarras: see prec.]

    1. trans. To encumber, hamper, impede (movements, actions, persons moving or acting).

    b. pass. Of persons: To be ‘in difficulties’ from want of money; to be encumbered with debts. Cf. EMBARRASSED ppl. a., EMBARRASSMENT.

    2. a. To perplex, throw into doubt or difficulty.

    b. To make (a person) feel awkward or ashamed, esp. by one’s speech or actions; to cause (someone) embarrassment.

    3. To render difficult or intricate; to complicate (a question, etc.).

    The birthers (Including that famous constitutional atty Dr Orly Taitz, Esq) seem to think that definition 2b was meant.

    Meaning 1b (short of money) clearly doesn’t apply.

    I looked at Baker v Carr … and the root “embarrass” is used THREE times:

    > Nor do we risk embarrassment of our government abroad …

    Grammatically this COULD be definition 2b : the Government is made to feel awkward or ashamed.

    > the potentiality of embarrassment from multifarious pronouncements by various departments on one question …

    This needs more of a stretch. It’s not clear WHO would be made to feel awkward or ashamed. But the stated SOURCE of the embarrassment doesn’t support this interpretation.

    > It would hardly embarrass the conduct of war ..

    The CONDUCT OF WAR is made to feel awkward or ashamed?

    There is NO way this can be stretched to meaning 2b — most of the other meanings fit :

    encumber, hamper, impede, perplex, throw into doubt or difficulty, render difficult or intricate; complicate

    So even without looking further at the “political question doctrine” — if the sense of “awkward or ashamed” is excluded for this paragraph then it is equally unlikely that it applies to either of the other two paragraphs.

  3. John says:

    Just remember the following:

    “Let me remind you, it’s not good for the country. It’s not good for the country, if he is qualified to be POTUS, that these rumors swirl. And if he is not, it’s not good for the country that he is Commander In Chief.” – Judge David O. Carter, Federal District Court of California.

    If Judge Lind’s decision is correct that the eligiblity of Obama as Commander In Chief does not matter in regards to military orders that solider must follow, then how is Obama’s questional eligiblity to be the Commander In Cheif BAD for the country? If the De Facto Officer Doctrine supposely protects Obama, how can Obama’s inegibility to be Commander In Chief be BAD for the country.

    You should also know that Judge Lind’s reference to Baker Vs. Carr on the political question doctrine merely says that the court SHOULD NOT intervene in a political question not that it SHALL NOT or MUST NOT leading to the conclusion that isn’t that Judge Lind CAN”T grant discovery but the fact that she WON”T grant discovery. This is a HUGE difference.

  4. John says:

    David O. Carter was a former marine and knew that it was indeed very BAD that Obama’s eligibility to be Command In Chief be in doubt. Unfortunately, Judge Carter was powerless to remedy the situation but I still believe that Judge Carter was coersed or otherwise threatened to dismiss the case when is looked like the case was actually going forward. Judge Carter made the following statement in hearing when it was he gung ho about resolving this great issue:

    “Let me remind you, it’s not good for the country. It’s not good for the country, if he is qualified to be POTUS, that these rumors swirl. And if he is not, it’s not good for the country that he is Commander In Chief.” – Judge David O. Carter, Federal District Court of California.

    I see this one of the most powerful of all statements made by a judge regarding the doubt of Obama’s elgibility thus far.

  5. SueDB says:

    Were you born to spread stupidity all over the net or did you have to work at it?

    Sorry, but you’ve posted the same debunked crap on several boards. When you get the crap kicked out of you (takes quite time time – large quantity you know), you just post some more old moldy debunked crap. These people are real lawyers here. Not boxtop lawyer in the military bunch.

    Your malicious misuse of Judge Carter’s quote is just more evidence that you have little if no understanding of Military Law.

    Who should I listen to??? Some moron (moran like the birther signs say) who posts debunked crap or a pack of Colonels, LTC, MAJ, CPT etc who live and breathe this stuff every day???

    The Judge cannot order discovery as there is no connection what-so-ever between what was asked for and Ltc Dipstick disobeying orders from his superior officers (whose power is rooted in that document you don’t seem to understand called the US Constitution.) The ‘Power’ does not flow from one man. That was tried in Europe a while ago. It doesn’t work very well.

  6. Joey says:

    Here’s another powerful statement by Judge David O. Carter, a United States Marine Corps Lieutenant, Vietnam combat veteran and winner of the Bronze Star and the Purple Heart at the Battle of Khe Sahn: “There very well may be a legitmate role for the judiciary to interpret whether the natural born citizen requirement has been satisfied in the case of a presidential CANDIDATE who has not already won the election and taken office. However, on the day that PRESIDENT OBAMA took the presidential oath and was sworn in, HE BECAME PRESIDENT OF THE UNITED STATES. Any removal of him from the presidency MUST be accomplished through the Constitution’s mechanisms for the removal of a President, either through impeachment or the succession process set forth in the Twenty-Fifth Amendment. Plaintiffs attempt to subvert this grant of pwer to Congress by convincing the Court that it should disregard the constitutional procedures in place for the removal of a sitting president. The process for removal of a sitting president–REMOVAL FOR ANY REASON–is within the province of Congress, NOT THE COURTS.”–U.S. District Court Judge David O. Carter in dismissing Captain Pamela Barnett, et. al v Obama et. al., October 29, 2009

  7. obsolete says:

    “Let me remind you, it’s not good for the country. It’s not good for the country, if he is qualified to be POTUS, that these rumors swirl. And if he is not, it’s not good for the country that he is Commander In Chief.” – Judge David O. Carter, Federal District Court of California.

    In other words John, he is saying that it is not good that you and Orly spread lies and false information in your efforts to undermine our President and the office he holds. Maybe you should get that quote tattooed on your hand so you can be reminded every day of your life what damage you have tried to do to our country.

  8. John says:

    Lakin is not asking for the removal of Obama as the POTUS.

  9. BigGuy says:

    John — He is asking for the court to make a determination of the President’s eligibility to hold office, and the court has found that it cannot make such a determination under the political question doctrine.

  10. HORUS says:

    When you look up the word Moron in Websters Dictionary, you see a picture of John.

  11. Dwight Sullivan says:

    I suppose there’s no point in trying to engage in debate with the one-trick-pony that is “John,” but it is important to note that the de facto officer doctrine doesn’t exist to protect an ineligible office holder. Rather, the doctrine exists to protect the country from the adverse effects that would arise if a belatedly discovered grounds for ineligibility had the effect of voiding all of that office holder’s actions. As Chief Justice Rehnquist explained in his opinion of the Court in Ryder v. United States, 515 U.S. 177, 180 (1995): “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” The Lakinistas want to plunge us into the chaos where no member of the military may lawfully order any other member of the military to do anything. Fortunately the law protects us from their scheme.

  12. Joey says:

    John: “Lakin is not asking for the removal of Obama as the POTUS.”

    Unfortunately for Lieutenant Colonel Lakin, what he is asking for needs to occur way above his pay grade. Now if Admiral Mike Mullen or General John Petraeus were asking for the same thing, we’d have something serious to discuss.

    Good soldiers just go out and do their jobs and leave the politics to the politicians. Someone else has to do Lakin’s job for him since he decided to play politics and he’s likely to pay a heavy price for his poor judgement.

  13. Greg says:

    Now if Admiral Mike Mullen or General John Petraeus were asking for the same thing, we’d have something serious to discuss.

    If Lakin were a General then his court martial would no doubt be more disturbing and probably more newsworthy – nevertheless the essential principles involved would remain the same. A General Lakin would no more be entitled to discovery of Obama’s birth records than Lieutenant Colonel Lakin is today.

  14. HORUS says:

    There is no Crime in simply deploying to Afghanistan!

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