Posted on 04/22/2010 2:54:33 PM PDT by BuckeyeTexan
It's a presumption that can be rebutted, and that's what the defense would try to do.
You raise great points. The rules demand that if he elects to go with a panel, that they must be 0-6s or above. but, it's Lakin's prerogative to go with just the judge. I would actually expect him to take that option.
Once the trial judge rules the orders lawful, a jury's decision is a foregone conclusion. Nullification isn't going to come into play here.
It works the other way, the defense must prove that he's not. How much ability they will be allowed to obtain evidence of that, will be up to the judge.
Of course if they argue that he's not an NBC, because his parents were not citizens, they won't need much evidence.
I will have to disagree here. He's an 0-6. If he's convicted at GCM of the of missing movement and the several specification of failure to obey, he's not going to keep his commission. He'll definitely face some confinement, some forfeiture, rank and dismissal. Those are serious charges for a commissioned officer, and the punishment will be commensurate. The max punishment he's looking at is dismissal (dishonorable), complete forfeiture and around 4 years confinement. He's won't get the max (probably), but he's not going to get a slap on the wrist, not as an 0-6.
His best chance is to go with a panel rather than just a judge. Most O-6s didn't get there because they are unintelligent. If none of them have any hope of making O-7, I would not rule out the possibility of a jury nullification even if it is a very remore possibility. The defense could go on the offence and try to get on the conservative talk shows and explain that there is a USSC case that clearly states that the jury is judge of both the law and the facts.
The concept that the tribunal is the sole judge of the law is a judicially created fiction and was never contemplated by the founding fathers. Another judicially created fiction is the whole standing issue as it relates to violations of the Constitution. Every citizen should have the right to question the constitutional qualifications of a President through a quo warranto action.
everything is explained here..
Military Law and Precedents, Volume 1
I think that the comparison of the legal cases of Spc.4 New and LTC Lakin is inappropriate because of the difference in rank, i.e. enlisted vs. Commissioned officer.
Might be interesting to see if the Army screws up (maybe intentionally) the prosecution like they did in the 1LT Watada case at Ft. Lewis and wound up having to dismiss all the charges and giving the guy an honorable discharge.
In the end, Lakin will likely lose unless he wins BIG in the court of public opinion prior to the actual trial.
I've discussed this possibility too. His lawyer has got to do his best Perry Mason impersonation against a stacked deck.
It's an interesting argument. You base this on.....?
Watada hit the jackpot when Obama was elected. The Army stood a reasonable chance of prevailing on appeal. Holder's DOJ dropped the case.
And the political converse is that Obama loses from the bad publicity.
Now you’re throwing obama’s website at us? Whatever credence you had previously is now toast.
Please cancel my last post to you, thought you were someone else. Did not mean that to apply to you.
This is what I base my statement on. I posted this and the officer oath in my post 118.
I see. To be more specific, what language in US v. Michael G New do think lends itself to distinction between the officer and enlisted service oaths?
Can you point to any specific examples in either the lower court's decision, or the appellate affirmation of that decision that would change because of the officer or enlistment oath?
Do you believe that the trial judge in deciding that the question of legal authority was nonjusticiable based on the political question doctrine would come to a different conclusion had the defendant been a commissioned officer?
Or, do you believe that because of the defendant's enlisted status as opposed to a commission, the appellate court would have found some infirmity in the legal reasoning of the trial judge when he decided that the defendant's orders were legal? And, if you do believe that, what infirmity do you think the appellate court would have hung their hat on?
I'm fairly familiar with the Manuel for Courts-Martial, and I don't believe that it makes any distinction with respect to commissioned or non-commissioned status of the defendant when directing the trial judge to decide an orders lawfulness. But, if you're aware of such an instruction, please point it out as I'd love to educate myself.
Not a problem. : )
I can’t believe they even have “native born” listed there.
|
> Sigh... This makes me sad. Why sad?! Lt Col Lakin anticipates and welcomes these charges. Lt Col Lakin's SACRIFICE should make you happy that this is all unfolding as expected. This will give Lt Col Lakin: Injury — Court Martial proceedings, forfeiture of pay and incarceration because he is following his Oath to "protect and defend the Constitution of the United States" Causation — Injury incurred because Obama continues to hide his original birth certificate and other records that would confirm his Eligibility to be the CinC Redressability — subpoenas issued later from Federal court(s) — via a quo warranto trial in the Jurisdiction of the District of Columbia — that would order the (defacto) POTUS & CinC to supply documentation that he continues to hide
a/k/a ...
|
We sure hope so ... Lakin needs Injury to get into Federal court.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.