LCOL Lakin - Ruling on the Motions by Judge Lind

IN

A COURT-MARTIAL

OF

THEUNITEDSTATESARMY TRIALJUDICIARY,FIRST JUDICIALCIRCUIT

UNITEDSTATES

v.

LAKIN,Terrance

L.

LTC, U.S.

Army

Headquarters

Company

MedicalCenter

Brigade

WalterReed

Army

MedicalCenterWashington,

DC

20307

))

)

)))

)

))

Ruling:

Defense

Motion to

Compel

or

ForOtherAppropriateRelief

2

September

2010The Defense has moved

to

compel production of the following documents bothfor this Court'sinterlocutorydetermination ofthelawfulnessof the ordersin specifications 1-3 of Charge

II

and for the merits and sentencing portions of the trial:

1.

Writings of Punahou school,Occidental College, Columbia University, andHarvardUniversityregarding applicationsforadmission and financial aid ofBarrack Houssein Obama IllBarry Soetoro;and2 Records

in

possession of HawaiiStateDepartment

of

Health's Office ofHealth Status Monitoring pertaining

to

the birth of Barrack Houssein Obama

II.

The defense furtherrequeststhe production of Ms. BettyHata,

Dr

ChiyomeFukino,

Mr.

Jeffrey Scott, and

Mr.

DougBergman,as custodian of recordsforthe above documents,

LTG

(Ret)Thomas

G.

Mcinerney to testifyconsistentwithhisaffidavit regardingthemilitary chain of command and

Dr.

Alan Keyes,for sentencingto testifyaboutthehistory of the U.S.Constitution.

In

separate filings, the Defense requests the Court order an oral deposition

be

takenoftheCustodian of theRecordsof the Hawaii Department of Health about department records concerning the birth of Barrack Houssein Obama

II.

TheDefensealsorequeststhe Court take Judicial Notice

of

(1)

Remarks by the Presidentin "Address

to

theNation on the Way Forward

in

Afghanistan and Pakistan,"1December 2009,Eisenhower Hall Theater, United States Military Academy at West Paint, New York;

DA

PAM 10-1prefaceand chainofcommand chart,U.S.Department of State, 7

FAM

1131

.6-2, Senate Resolution

511

(110

th

Congo

20d

Session),

ag

reed

to

30April 2008,10 U.S.C. 162b; Article

II,

Section

1,

U

.S.

Constitution, the words"Soldiershavea duty

to

disobeyillegalorders."AndHawaii RevisedStatute section 338-17.

8.

Atoral argument,the defense urges the Court to find that Rule for Court-Martial (RCM)703

(c)

violates Article 46, of the

Un

iformCode

of

Military Justice,rather than

follow the rule, allow the defense to subpoena witnesses and evidence the defensebelieves may

be

relevanttotheir case.Having receivedthebriefs and supportingevidencefiled

by

the parties and havingheard oralargument,the Courtfindsand rules as follows: Procedures

Governing

Produ

c

tion

of

Witnes

sesand

Evidence

in

Court

s-

Martial:

1.

Article 46, UCMJ, providesthat

the

trialcounsel,the defense counsel, and the court-martial shall have equal opportunity to obtain evidence

in

accordance with suchregulations

as

the President may prescribe. Article46 alsostates

in

pertinent part thatprocess

to

compel witnesses and evidence shall

be

similar to that which the courts oftheUnitedStates having criminaljurisdictionmay lawfully issue.

2.

ThePresident has prescribed RuleforCourt Martial(RCM)703 to govern production of witnesses

and

evidence.Under

RCM

703(b)(1) and

(I)

each party

is

entitled

to

the

production

of

any

evidence

which

is

relevant

and

necessary

or

any witness

whose

testimony

on

the merits or on

an

interlocutoryquestion would be

re

levant andnecessary.

RCM

703authorizes the trial counsel to obtain witnessesandevidence he/sheconsidersrelevantand necessary for the prosecution butrequiresthe defense

to

submit

to

the

government a

list

of

witness

the defense

submits

are

relevant

and

necessary. If the government contends that production is not required under the rule,thematter

is

submitted to the military judge for decision.

3.

Military RuleofEvidence (MRE)

401

defines "Relevant Evidence".Relevantevidencemeansevidencehaving any tendency to make the existence ofany factthat

is

of consequence

to

the determinationofthe action moreorlessprobable thanitwould

be

without the

evidence.

4.

MRE 402 provides thatall relevantevidence is admissible,except

as

otherwiseprovided

by

theconstitution oftheUnited States

as

applied tomembersofthearmed forces, the code, theserules, thisManual,

or

any Act of Congress applicableto membersofthearmedforces. Evidence which is not relevant

is

notadmissible.

5.

Relevant evidence

is

necessarywhen itis not cumulative and when

it

wouldcontribute

to

a party'spresentation ofthe case

in

some positive way

in

a matter

at

issue. Amatter

is

notat issuewhen

it

is

stipulated as fact (discussion to R.C.M.703(b)(1)).

6.

MRE403 provides that relevantevidencemay be excluded

if

its probative value

is

substantially outweighedby

the

dangerofunfair prejudice,confusion ofthe issues,or misleadingthe members, or

by

considerationsof undue delay,wasteof time, or

needless presentation

of

cumulative evidence.

7.ReM 703(c)(2)and

(1)(3)

govern production of witnessesand evidenceforthe defense.For interlocutoryquestionsor themerits,theserulesrequirethe defense

to

2

submit

to

thetri

al

counsel a list

of

witnessesand evidencethe defenseconsiders

relevant

and

necessary

on

the

merits

or

on

an

interlocutory question.

For

witnesses,

the defense submission shallincludethe name, telephone number,if known,and address or location

of

thewitnesssuch thatthe witness canbe found

in

the exercise

of

due diligence

and

asynopsis

of

the expectedtestimonysufficient to show its relevance

and

necessity. Forevidencethedefense must listtheitems

of

evidenceto

be

produced

and

include a description of each item sufficient to show itsrelevanceandnecessity,a statement of whereit can

be

obtained, and, ifknown,thename, address,and telephone number

of

the custodian

of

theevidence.For sentencing witnesses, the defensemust includea synopsis

of

thetestimony that

itis

expectedthewitness will give and thereasons why the witness'personal appearance will be necessary undertherules set forth

in

R.C.M.

1001

(e). The synopsis of witnesses mustincludethe subject

to be

addressedandwhatthe witnessisexpected to sayabout those subjects.

US.

v.

Rockwood,

52 M.J.

98, 105

(C.AAF.

1999).

Findings

of

Fact:

Production

of

Defense

RequestedWitnesses

and

Evidence

in

this

Case:

1.

The accused

is

charged with missing movement by design, three specifications

of

failure

to

obey lawful orders, and willful dereliction

of

duty. The questionpresented

is

whether the evidence

is

relevantand necessarytoeither: (1)theinterlocutory question of whether the orders

in

specifications1-3

of

Charge

II

are lawful; (2) the merits portionof the trial

as

evidence

of

a fact

of

consequencetoan element

of

a charge or to alegal

defense

to

a

charge

;

or

(3)sentencing

as

evidence

in

aggravation,extenuation,

or

mitigation.

In

sentenCing the defensemaypresent matters

in

mitigation

of

an

offense

to

lessen

to

punishment to be adjudge

by

the court-martial, or to furnish grounds for arecommendation

of

clemency. Suchevidenceincludes particular acts

of

goodconduct

or

bravery

and

evidence

of

the

reputation

or

record of

the accused

in

the

service

for

efficiency,fidelity,subordination,temperance,courage, or any other traitthat

is

desirable

in

a service-member

(RC

.

M.

1001(c)(I)(8)). The defense may also presentmatters

in

rebuttal

of

matterspresentedbythe prosecution (R.C.M.

1001

(c)(1

)).

2.The Defense asserts that theserecordsand witnesses are relevant and necessary for this court's interlocutory determination onthelawfulness oftheorders at issue

in

specifications 1-3 of Charge

II

and on the merits because the primary defense-or atleast partial defense -tothecharges

in

this case is that theordersatissue

in

specifications 1-3

of

Charge

II

were unlawful.The Defenseasserts that the President,