[Upfront disclosure: I was one of SSgt Bradford’s appellate counsel]
We’ve noted the military appellate courts’ tendency to expansively interpret their own jurisdiction. The Air Force Court’s decision in the government’s Article 62 Bradford appeal was no exception. United States v. Bradford, Misc. Dkt. No. 2009-07 (A.F. Ct. Crim. App. Nov. 23, 2009). At trial, the government sought to pre-admit a package of documents from the Air Force Drug Testing Laboratory without calling any witnesses in support of the motion to pre-admit, though indicating that the prosecution planned to call an expert witness familiar with the Brooks Lab during its case-in-chief. Applying Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), Judge Burd declined to pre-admit the documents, concluding that certain portions of the exhibit weren’t testimonial for Melendez-Diaz purposes but other portions were. Judge Burd also indicated which individuals from the lab would have to appear for the complete exhibit to be admitted. When the prosecution said it was considering appealing the ruling, Judge Burd — who used to be an AFCCA judge — stated that he didn’t think his ruling was appealable, since he hadn’t excluded any evidence.
Oh, but the ruling is appealable, ruled AFCCA after the government went forward with an Article 62 appeal. The Air Force Court proceeded to reverse Judge Burd’s Confrontation Clause ruling.
Oh, but it’s not appealable, held CAAF today. United States v. Bradford, __ M.J. ___, No. 10-6003/AF (C.A.A.F. Feb. 26, 2010) (per curiam).
CAAF’s ruling, which was delivered by a per curiam opinion, was unanimous.
CAAF emphasized that it wasn’t addressing the merits of Judge Burd’s Confrontation Clause analysis or what witnesses would have to appear to overcome any Confrontation Clause issue. Rather, CAAF addressed solely the Air Force Court’s lack of jurisdiction to hear the government’s appeal. CAAF agreed with Judge Burd’s assessment that “at this stage of the proceedings there has not been a ruling excluding any evidence.” Id., slip op. at 6-7.
CAAF reserved judgment on the question of whether a military judge’s foundational requirements could be so onerous that they rise to the level of excluding evidence, thereby providing jurisdiction for the government to appeal under Article 62(a)(1)(B). Id., slip op. at 6 n.1.
Of particular note to we appellate wonks, CAAF decided the case on the basis of the filings at the supp stage, granting review and immediately issuing its opinion rather than ordering either briefing or oral argument. That is consistent, of course, with Congress’s desire for expeditious handling of Article 62 appeals. See Art. 62(a)(3), (b), 10 U.S. C. § 862(a)(3), (b) (2006).