Court-Martial Trial Practice Blog
WorldNetDaily has commented on the recent memorandum issued by the Article 32, UCMJ, IO in LTC Lakin’s case.
But Lakin said the result "makes it impossible for me to have a fair hearing."
"I cannot even raise the issue of the president’s eligibility, on the grounds that my position has ‘no basis in law,’" he said
He’s getting a “fair” hearing within the rules of R.C.M. 405 and Article 32, UCMJ.
He is wrong that he can’t raise the issue. His defense counsel was in fact invited, “expressly instructed” to do just that – provide a scholarly brief on why the requested information was necessary.
Driscoll then blamed the defense for not giving him what he wanted.
Yes, that’s right, when the defense doesn’t do something they are requested to do, told to do, or ought to do, they can’t complain that the, in this case, IO didn’t give them what they asked for. It is the obligation of the defense counsel, especially when called upon, to ask, be specific, and give a legal and factual reason – a pleading – on why something should be produced. This is done in all courts of law not just LTC Lakin’s Article 32, UCMJ, hearing. This is something that is second nature to trial lawyers. You don’t just make bold bald requests.
"I expressly instructed ‘[y]our submissions, if any, on the subject of lawfulness of orders, derivation of authority, political questions and the like should be sufficiently scholarly to allow me to make an informed determination of relevance of the requested items to the truth of the specifications and charges at issue," Driscoll wrote.
LTC Lakin’s counsel failed to do what he was requested to do. It is the failure of the defense counsel, not the IO.
"There is no scholarly discussion of what constitutes an illegal order or under what circumstances such an order can be disobeyed or must be disobeyed.”