JAG CENTRALThe world's first weblog devoted to military justice and military law issues.
Thursday, August 25, 2005
DEISHER AND LAWFUL ORDERS
Last Friday, C.A.A.F. released its opinion in U.S. v. Deisher, No. 04-0555. Deisher was convicted of several offenses, including failure to obey a lawful order. Deisher was involved in an altercation with another airman. A security forces Staff Sergeant told him three times to stay away from the other airman, and apparently Deisher defied him.
The defense made a pretrial motion to dismiss the failure to obey specification. C.A.A.F. had just released its opinion in U.S. v. New, 55 M.J. 95 (C.A.A.F. 2001) (which is a really cool case) (whether an order is lawful is a legal question, to be decided by the military judge, reviewed de novo by the appellate court). The military judge thought the question (whether the order was lawful) was too factually specific, and over the objection of the defense, passed the issue on to the members.
The majority held that this was reversible error. Rather than reviewing the record (de novo) to determine whether the order was lawful, the court held that the military judge should make the determination himself after hearing the testimony of witnesses. He’s not allowed to punt to the members, but he does need to take into account the persuasiveness of the witnesses.
Judges Crawford and Baker filed dissenting opinions. The main thrust of Judge Crawford’s dissent was that the error was harmless because the members of the court martial found beyond a reasonable doubt that the order was lawful (so of course the judge would have found by a preponderance that it was lawful).
Judge Baker, however, thought that the court should exercise its de novo power to determine whether the order was lawful. If it is a legal question, there is no reason to remand to the trial court.
I found Judge Baker’s opinion to be the most persuasive. Lots of legal questions (admissibility of evidence, which jury instructions to give, etc.) cannot be submitted to the jury / members. Imagine a judge who said, “I can’t decide whether this warrant was supported by probable cause or not. I’m going to submit the question to the jurors, and I will instruct them to consider the resulting confession ONLY IF the arresting officers had probable cause.” It seems that the jury’s decision would not render that error harmless. Judges apply the law, not jurors. (But note, before the UCMJ was amended to create the Military Rules of Evidence, in the mid 1980s I think, confessions were admitted under a similar “two-tiered” process, where the members decided whether the confession was admissible. Even then, the judge had to make a threshold determination.) Judge Crawford did not convince me that the juror’s decision on a legal question should render the judge’s refusal to answer that question harmless. (Isn’t that a mouthful?)
On the other hand, this is a very fact-sensitive question. Under MRE 104 (and the corresponding Fed. R. Evid. 104), the judge has to do some fact-ish things. It’s sort of a quasi-legal inquiry, and maybe (contrary to Judge Baker’s opinion) there are questions that are too factually specific for an appellate court to answer, but still legal enough that a jury finding won’t satisfy. What do you think?
Categories: CAAF, Appellate
The defense made a pretrial motion to dismiss the failure to obey specification. C.A.A.F. had just released its opinion in U.S. v. New, 55 M.J. 95 (C.A.A.F. 2001) (which is a really cool case) (whether an order is lawful is a legal question, to be decided by the military judge, reviewed de novo by the appellate court). The military judge thought the question (whether the order was lawful) was too factually specific, and over the objection of the defense, passed the issue on to the members.
The majority held that this was reversible error. Rather than reviewing the record (de novo) to determine whether the order was lawful, the court held that the military judge should make the determination himself after hearing the testimony of witnesses. He’s not allowed to punt to the members, but he does need to take into account the persuasiveness of the witnesses.
Judges Crawford and Baker filed dissenting opinions. The main thrust of Judge Crawford’s dissent was that the error was harmless because the members of the court martial found beyond a reasonable doubt that the order was lawful (so of course the judge would have found by a preponderance that it was lawful).
Judge Baker, however, thought that the court should exercise its de novo power to determine whether the order was lawful. If it is a legal question, there is no reason to remand to the trial court.
I found Judge Baker’s opinion to be the most persuasive. Lots of legal questions (admissibility of evidence, which jury instructions to give, etc.) cannot be submitted to the jury / members. Imagine a judge who said, “I can’t decide whether this warrant was supported by probable cause or not. I’m going to submit the question to the jurors, and I will instruct them to consider the resulting confession ONLY IF the arresting officers had probable cause.” It seems that the jury’s decision would not render that error harmless. Judges apply the law, not jurors. (But note, before the UCMJ was amended to create the Military Rules of Evidence, in the mid 1980s I think, confessions were admitted under a similar “two-tiered” process, where the members decided whether the confession was admissible. Even then, the judge had to make a threshold determination.) Judge Crawford did not convince me that the juror’s decision on a legal question should render the judge’s refusal to answer that question harmless. (Isn’t that a mouthful?)
On the other hand, this is a very fact-sensitive question. Under MRE 104 (and the corresponding Fed. R. Evid. 104), the judge has to do some fact-ish things. It’s sort of a quasi-legal inquiry, and maybe (contrary to Judge Baker’s opinion) there are questions that are too factually specific for an appellate court to answer, but still legal enough that a jury finding won’t satisfy. What do you think?
Categories: CAAF, Appellate
