Court-Martial Trial Practice Blog
It has been (fill in the blank) days since LTC Lakin has been denied some discovery and witnesses for his case. His website has been updated in one place to say “Judge To Rule On Defense Request,” but the breaking news column still has the old verbiage, “Judge to Rules On Defense Request.” Of course we all know the judge has ruled. The point is though that someone is updating the site. The ruling has been adverse to LTC Lakin. I think we can say that the site managers have deliberately avoided placing adverse information on the site. Here’s some questions.
LTC Lakin and his attorney are advertising the case on the internet and a website is being used to solicit funds for LTC Lakin’s defense (we can take issue with the purported amount, compare for example an estimate of $100,000.00 to defend PFC Bradley Manning the Wikileaks accused). Mr. Jensen’s website links back to safeguardourconstitution “For More Information Visit the Case Site.” Is the advertising for funds truthful at this point, if the advertising is not truthful at this point is LTC Lakin himself complicit in a lack of truthfulness, and if LTC Lakin is complicit in this is he acting as an officer and a gentleman? At what point, if any, and I think this question goes beyond LTC Lakin, is a client responsible for “advertising” about their case which is ongoing? At what point is an attorney responsible for the accuracy of his or her advertising about a case they have ongoing? To what extent is advertising about an ongoing case consistent with Rule 3.6 of the Army (or similar other Service rule) professional responsibility rules – AR 27-26. As we bloggers know the Army has been reluctant to publically discuss and/or release LTC Lakin’s case.
Subsequent to the 2 September 2010 ruling LTC Lakin through counsel has said publically a number of times that an extraordinary writ will be filed. To date no writ appears to have been filed. The next scheduled event is for an Article 39(a), UCMJ, hearing on 28 September 2010. So now what?
As a general principle the defense can file a writ of mandamus, prohibition, or habeas corpus to “appeal” something done by a convening authority or trial judge. The prosecution of course can use Article 62, UCMJ, to force an “appeal” of a judicial ruling under certain circumstances. The appellate court does not have to grant the prosecution its requested relief, but assuming the prosecution gets over the jurisdictional bars the court must rule on the issue for the prosecution. Is there an argument that there is an unequal access here between the prosecution and defense?
The Army Court of Criminal Appeals does not have a time in which a writ must be filed. Rule 20 addresses Petitions for Extraordinary Relief. I think it fair to say though the quicker the better. (Dwight “ML” Sullivan at CAAFLog suggests analogy to CAAF’s 20 day rule.) Either way, has LTC Lakin ‘busted’ the rule?
Upon filing a petition a brief must accompany it. The prosecution then has 10 days to file an answer.
Note on 2 September 2010, LTC Lakin was aware that the next session of court was 28 September 2010 and trial remains on the scheduled dates.
We should assume that that the quicker a writ is filed the quicker you should get the benefit of the writ if granted. Whether you will lose of not isn’t the question. When filing a writ in this situation you are asking for a remedy “sparingly exercised.”
If you have an issue you think is writable should you not file the writ at the earliest possible opportunity? If you are aware that 99.9% of lawyers knowledgeable and experienced in an area of military pretrial discovery law are saying you will be denied discovery, don’t you have your writ already written ready to be filed within the next day or so (it’s fair to allow a few days to consider the specifics of the judge’s written findings and conclusions).
If LTC Lakin asks for a delay to file a writ on 28 September 2010, he should probably expect the delay to be denied.
Will Mr. Jensen be present for the 28 September 2010 hearing?