Manual for Courts-Martial Tag Archives — Court-Martial Trial Practice Blog

LTC Lakin’s defense

October 11, 2010 | The Law Office of Philip D. Cave

Lots of political rhetoric, name calling, and pithy evaluations continue about this court-martial case. But putting the chaff aside there have been and can be a number of teachable moments.

It is unclear what role if any APF will continue to have in this case. The website and a recent email indicate a role limited to publicity for LTC Lakin, his case, and the birther issue. See APF still ‘in the fight’ and apparently LTC Lakin intending to stay the course, and compare with the current site. The United States Patriots Union is now apparently in the game with their four ‘White Papers’. I am labelling them the nativists. While APF has a focus on the birth certificate, the USPU argues the APF position is too narrow and has a focus on the natural born aspect of presidential eligibility as well. Neither theory is helpful to LTC Lakin. Neither theory was helpful before he disobeyed orders and neither is relevant now. Neither theory will ever be relevant to a defense against the current charges. LTC Lakin is in a bind.

I would suspect that the new defense team will bilge the birther/nativist theory. So the question becomes what might be their strategy or approach. I would imagine efforts to avoid or remove this case from trial might be one. Thinking outside the box (or outside the schoolroom solution) is vital. But despite the thinking, can it be done, can a viable defense be fashioned for LTC Lakin.

Humor in military uniform law

September 4, 2010 | The Law Office of Philip D. Cave

Here is a link to the 3 September 2010 Federal Register for the recent MCM amendments signed by The President.

And the humor you say – – – –

Hat tip to Native and Natural Born Citizenship Explored blog (a not a birther blog).

MCM amendments

September 1, 2010 | The Law Office of Philip D. Cave

Here is a link to the Executive Order signed 31 August 2010 with amendments to the Manual for Courts-Martial.

The Rule of Lenity

December 5, 2009 | The Law Office of Philip D. Cave

The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”

From Levin, Daniel and Stewart, Nathaniel, Wither the Rule of Lenity, Engage, November 16, 2009. This is a claim or objection I have used from time to time, not always successfully. Typically I’m using it as an argument regarding application of an R.C.M. or Mil. R. Evid., an argument by analogy I suppose. Another way to express this would be that where there is an ambiguity the ambiguity should be construed against the writer. Perhaps there is some hope?

In 2008, in United States v. Santos, the Supreme Court issued a plurality opinion holding that a key term in a federal money laundering statute was ambiguous and applied the rule of lenity to resolve the ambiguity in the defendants’ favor. The plurality involved just such a coalition of conservative and liberal Justices (Justices Scalia, Thomas, Ginsburg, and Souter; with Justice Stevens writing separately and agreeing that the rule should apply), raising the question of whether the rule may be entering a period of somewhat greater application…