It rained in D.C. today, which means I got to spend a lot of time in my car this evening. While trying to drive home, my mind turned to the Lakin case. And my unexpected reaction to thinking about the case was to become sad.
I don’t know LTC Lakin, but I’ve seen his video and listened to him on the G. Gordon Liddy show. While I have no way of knowing, I believe that he’s sincere. Deeply misguided and credulous, sure, but sincere.
The man is a physician and has been selected for promotion to colonel — obviously he’s intelligent and well-educated. So assuming he’s sincere, then it seems to me one of two things must be true: (1) he thinks that his court-martial will compel the release of some or all of the documents concerning President Obama that LTC Lakin would like to see; or (2) he knows there isn’t any realistic chance that he’ll obtain the documents he seeks and he wants to martyr himself for his cause, perhaps thereby furthering political efforts, like that passed by the Arizona House of Representatives today, to compel production of documents concerning President Obama’s citizenship.
Let’s look at why there’s no realistic chance that the court-martial discovery process will result in the production of any of the documents LTC Lakin seeks. First, I assume there will be a court-martial. One reason I assume that is because LTC Lakin appears to want to be court-martialed, which substantially reduces the likelihood that the case will be diverted to some alternative disposition. Actions such as his by a lieutenant colonel also merit a general court-martial.
Once his case has been referred to a GCM, LTC Lakin’s counsel will likely ask the trial counsel to issue subpoenas for the production of documents from non-parties, such as the state of Hawaii, and will probably seek a subpoena to compel the testimony of President Obama. The trial counsel will refuse. The defense will then litigate the issue before the military judge. The military judge will (correctly) rule that none of the requested documents or witnesses is relevant to the issue of whether any orders issued to LTC Lakin were lawful. The military judge will, therefore, deny the defense discovery motion. The defense will probably challenge that ruling via petitions for extraordinary relief, which will be denied. The case will then go to trial. But if LTC Lakin wants to challenge the discovery rulings on appeal–and presumably his decision to miss movement and disobey orders is a vehicle to obtain that discovery, so he’ll want to appeal the ruling–he’ll have to be sentenced to either a dismissal or a year or more of confinement. Will we see the spectacle of the defense requesting a dismissal in order to appeal the discovery rulings?
Let’s say he is sentenced to a dismissal and/or a year or more of confinement — not because he asks for it, but because the fact finder concludes that’s the appropriate punishment. (BTW, will LTC Lakin choose to go judge alone or elect trial by a panel of O-6s and perhaps general officers?) His case will then go to ACCA, which will affirm the military judge’s discovery rulings. LTC Lakin will then file a petition for review at CAAF. If the only real issue in the case is the discovery issue, then I suspect CAAF would deny review. And that would mean no opportunity for LTC Lakin to seek cert from the Supremes.
By the time military appellate review is complete, LTC Lakin’s period of confinement would almost certainly have run, thus eliminating his opportunity to file for habeas. But let’s say that his case didn’t qualify for military appellate review, but he did receive some confinement. After he filed and lost an Article 69 appeal, he could file a petition for habeas corpus in the district where he is confined. But if he’s at the USDB, his case would be governed by the extremely narrow scope of review that the 10th Circuit has adopted for collateral attacks of court-martial convictions. See Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808 (10th Cir.1993). Under that scope of review, he wouldn’t be able to obtain review of the merits of the discovery rulings. Nor would it be likely that he would ever be able to seek Supreme Court review of such a habeas challenge, since his release from confinement would moot a habeas action and it’s unlikely that he would receive a sufficiently lengthy sentence to remain in confinement beyond the amount of time it would take to obtain a ruling on his Article 69 appeal plus a ruling from the district court, much less from the court of appeals.
LTC Lakin could seek collateral review of his court-martial conviction through a Tucker Act proceeding, but once again the scope of review is exceedingly narrow. See, e.g., Bowling v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983).
So there’s almost zero chance that LTC Lakin will succeed in obtaining any of the documents he seeks. By all accounts, LTC Lakin has had an outstanding career as an Army doctor, including service for 16 months as a squadron flight surgeon in Afghanistan. And that’s what saddened me. He’s throwing away that outstanding career with no realistic chance that the court-martial discovery process will ever result in the production of the documents he seeks.
Knowing that LTC Lakin is a well-educated, intelligent officer, does that suggest that he’s consciously engaging in civil disobedience as a political device? Or have his legal advisors provided him with an unrealistic assessment of the likelihood that he will either: (a) succeed in using the court-martial discovery process to obtain the documents he seeks; or (b) be found not guilty by a court-martial? (Based on the pictures on Paul Rolf Jensen’s new web site, it appears that Mr. Jensen was already advising LTC Lakin when he taped his video explaining that he is “inviting my own court-martial” by choosing to disobey orders, including an order to deploy to Afghanistan.)