At trial the accused blew providency on an AWOL plea. The prosecution decided they wanted to go forward on the desertion. As part of the case the prosecution wanted to use unwarned statements made to the First Sergeant. The military judge said the statements were coerced, etc., and excluded them. The prosecution appealed. Of course the ACCA ruled in favor of the government that being dragged to the First Sergeant’s office, locked up, and asked a bunch of questions, was not an interrogation and any statements were voluntary. Cases cited are United States v. Duga, 10 M.J. 206 (C.M.A. 1981); United States v. Loukas, 29 M.J. 385 (C.M.A. 1990). Basically it is in the mind of the questioner, not the person being questioned.

Here is the noteworthy piece.

While not raised by the parties, there is a final matter which we believe merits comment. That is, having received notice of the government’s intent to appeal, it is patent the military judge was attempting to discourage the government from pursuing that appeal, and that ultimately he would not consider evidence he determined should be suppressed, even if the government prevailed. We are dismayed by the following military judge’s record comments: “I do not expect to get overturned on this issue” and if this case does come, you know, back three or four months from now I will be the military judge in the case . . . that is going to hear the facts in the future including the [first sergeant]’s testimony if they believe the statements should be admissible. But if you want to appeal you are welcome to. Is that your final decision, Government? I just want to make sure. These gratuitous comments certainly call into question at least the perception of the fairness and impartiality of the military judge with regard to the parties, here specifically the government.

Appellant charged.

Additional charges added.

Appellant arraigned. Next day the MJ dismisses the additional charges on defense motion. Same day as the dismissal there is a signed PTA on the remaining charges, which precludes approval of a BCD.

Next day the government files notice of intent to appeal the dismissal. Same day the MJ accepts the guilty plea, sentences the accused, but does not adjudge a BCD.

Several months later AFCCA however decides the issues, and decides them in favor of the government and adverse to the accused. Did AFCCA actually lose jurisdiction over the appeal once the military judge adjourned the court?

The appeal was on a military judge declination to pre-admit a Lab Package in a urinalysis case. AFCCA had no trouble saying that a declination to pre-admit evidence is appealable. CAAF had no trouble correctly saying that AFCCA was wrong.

The prosecution proffered the standard lab package and told the military judge they’d produce an expert at trial to discuss the package. That basically was it. On that the military judge was supposed to pre-admit the package. Rather than pre-admit, the military judge told the prosecution that they’d need to produce witnesses and pull out some pages that might be pre-admitted separately. The prosecution then ‘threatened’ the military judge that they were going to appeal. Notably the military judge expressed an opinion that his “ruling” wasn’t appealable. And it appeared the military judge was going to hold the prosecution to its burden to produce actual, like real, evidence. Rather than produce evidence and testimony necessary to lay a foundation for the documents either in the motion or at trial, the prosecution, rather peevishly to my way of thinking, appealed.

I’m reminded of the Queen in Lewis Carroll’s, Alice in Wonderland, where she shouts, “off with his head,” or words to that effect about the prisoner at the bar. And Alice asks plaintively, “what about the trial.”

The military judge did not exclude the evidence, merely told the government that they’d not established a sufficient foundation to pre-admit evidence. The military judge basically told the prosecution what they needed to do. Rather than do what the military judge suggested, and present evidence, the prosecution appealed.

CAAF did not rule on the admissibility of the evidence should evidence and testimony be produced and did not rule on the Melendez-Diaz issue raised by the military judge. CAAF did footnote a pending decision in Blazier.