U.S. v. Smith, 68 M.J. 316

Military Justice Personnel: Military Judge: Instructions

1. obedience to lawful orders is an affirmative defense on which the military judge has a sua sponte duty to instruct if the defense is reasonably raised

Core Criminal Law Subjects: Crimes: Article 93 - Cruelty and Maltreatment Pre-2019 offenses

1. the elements of maltreatment are (1) that a certain person is subject to the orders of the accused; and (2) that the accused was cruel toward, or oppressed, or maltreated that person
2. Article 93, UCMJ, does not specifically address the context of detainees; however, it is intended to protect persons outside the U.S. military; the essential qualification from the victim’s perspective is whether or not the victim is subject to the orders of the accused, not whether the victim is a member of the U.S. armed forces; in this case, the detainees in an Iraqi prison where appellant was stationed as a military dog handler were subject to his orders under the SOP for working dogs; additionally, the detainees were subject to appellant’s orders in his capacity as a military policeman; finally, the relationship between a prison guard and prisoner or guard and detainee implies that the prisoners are subject to the guards’ orders
3. Article 93, UCMJ, applies to detainees in U.S. custody or under U.S. control, whether they are members of the U.S. armed forces or not; in this case, viewing the evidence in a light most favorable to the prosecution, a reasonable juror could have found that the juvenile detainees had a duty to obey appellant as their prison guard; similarly, the prisoner status of the detainees and appellant’s role in controlling them imparted a duty for them to obey him

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. obedience to lawful orders is an affirmative defense on which the military judge has a sua sponte duty to instruct if the defense is reasonably raised
2. the test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire

Core Criminal Law Subjects: Defenses: Obedience to Orders

1. obedience to lawful orders is an affirmative defense on which the military judge has a sua sponte duty to instruct if the defense is reasonably raised
2. it is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful; the prosecution bears the burden of proving beyond a reasonable doubt that the defense does not exist
3. the essential attributes of a lawful order include: (1) issuance by competent authority - a person authorized by applicable law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty
4. orders are presumed to be lawful
5. entitlement to an instruction on the affirmative defense of obedience to orders requires some evidence that there was a lawful order, or an order the accused might have reasonably believed was lawful, given to the accused to engage in the conduct charged
6. in this case, evidence was insufficient to support an instruction on an obedience to a lawful order defense in a prosecution for maltreatment of a prisoner based on appellant’s use of an unmuzzled military working dog to interrogate a prisoner in Iraq, where, while there was some evidence that appellant received an order to use his working dog in the context of the interrogation, there was no evidence he received an order, lawful or otherwise, to remove his dog’s muzzle or have his dog remove the prisoner’s hood, or that such an order would have been lawful had it been given
7. a competent authority necessary to issue a lawful order is a person authorized by applicable law to give such an order
8. in this case, the evidence did not reasonably raise the defense of obedience to orders regarding the offense of maltreatment of juvenile detainees in an Iraqi prison by using a military working dog to frighten them, where the evidence indicated that the use of working dogs in aid of interrogation, if authorized, was only authorized in the case of certain high-value detainees, where there was no evidence in the record that appellant mistook the juvenile detainees in question for high-value detainees, where appellant’s use of his dog in the manner alleged went beyond the patrolling duties that the SOP defined, where there was no immediate plan to interrogate the juveniles, and where appellant had the stated goal of making them defecate

Trial Stages: Merits: Instructions › Affirmative defenses

1. obedience to lawful orders is an affirmative defense on which the military judge has a sua sponte duty to instruct if the defense is reasonably raised
2. entitlement to an instruction on the affirmative defense of obedience to orders requires some evidence that there was a lawful order, or an order the accused might have reasonably believed was lawful, given to the accused to engage in the conduct charged
3. in this case, evidence was insufficient to support an instruction on an obedience to a lawful order defense in a prosecution for maltreatment of a prisoner based on appellant’s use of an unmuzzled military working dog to interrogate a prisoner in Iraq, where, while there was some evidence that appellant received an order to use his working dog in the context of the interrogation, there was no evidence he received an order, lawful or otherwise, to remove his dog’s muzzle or have his dog remove the prisoner’s hood, or that such an order would have been lawful had it been given
4. in this case, the evidence did not reasonably raise the defense of obedience to orders regarding the offense of maltreatment of juvenile detainees in an Iraqi prison by using a military working dog to frighten them, where the evidence indicated that the use of working dogs in aid of interrogation, if authorized, was only authorized in the case of certain high-value detainees, where there was no evidence in the record that appellant mistook the juvenile detainees in question for high-value detainees, where appellant’s use of his dog in the manner alleged went beyond the patrolling duties that the SOP defined, where there was no immediate plan to interrogate the juveniles, and where appellant had the stated goal of making them defecate

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF reviews the question of whether the military judge correctly determined that an order was lawful on a de novo basis
2. the CAAF reviews de novo the question whether the evidence is legally sufficient to support a finding of guilty

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the question of whether a jury was properly instructed is a question of law, and thus, review is de novo
2. an appellate court reviews the question of whether the military judge correctly determined that an order was lawful on a de novo basis
3. the test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt
4. an appellate court reviews de novo the question whether the evidence is legally sufficient to support a finding of guilty