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Cold dead fish
When a judge decides a motion at court-martial they will present the facts they have found, discuss the law, and make their conclusion. On appeal, when the military judge makes proper findings of fact, the court will accept those facts for the purpose of review unless there is an abuse of discretion and the facts found are “clearly erroneous.”
C.A.A.F. seems to have this definition, among several, of what clearly erroneous means.
At least one court has defined the clearly-erroneous standard by stating that it must be “more than just maybe or probably wrong; it must … strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988).
United States v. French, 38 M.J. 420, 425 (C.M.A. 1993).
This quote above came to me from an Article 32, UCMJ, hearing IO report. And
The standard of review for evidentiary rulings is whether the judge abused his discretion. The judge in this case did not. The abuse of discretion standard requires not that the judge was wrong, but rather was clearly wrong. As we have stated, it is not that the judge is maybe wrong or probably wrong, but rather “it must strike a cord of wrong with the force of a five-week-old, unrefrigerated dead fish.”
United States v. Byrd, 60 M.J. 4, 12 (C.A.A.F. 2004).
Now just in case you thought they were getting a little carried away, riddle me this one.
Our senior Court provided us with a vivid sensory perception to apply to the reversal standard, when it stated: “It must be ‘more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.'” United States v. French, 38 M.J. 420, 425 (C.M.A. 1993)(quoting Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988)). The smell in this case is not that of old, dead fish, but rather it is the scent of the thick, foggy mist of musket fire that more than two and a quarter centuries ago drifted over the fields at Lexington and Concord.
United States v. Daniels, 58 M.J. 599, 620 (N-M.C.C.A. 2003)(Villamez, J., dissenting), see also United States v. Brinton, NMCM 200001971, 2002 CCA LEXIS 307, at *1 (N-M.C.C.A. Dec. 19, 2002).
Some cases are just more interesting to read.