[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).

11 Responses to “A jurisdictional bridge too far”

  1. John O'Connor says:

    Makes perfect sense. Good for CAAF.

  2. Publius says:

    I agree with CAAF’s decision. But I doubt Judge Burd was correct in his Confrontation Clause analysis and, after Melendez-Diaz, I don’t think the AFCCA got it right either. So it looks like the Govt is going to have to call in an Article 39(a) session each of the witnesses Judge Burd requires or wait until they put the expert on in front of members and appeal the judge’s refusal to admit the evidence. This could get long and ugly.

  3. Anonymous says:

    Publius: This could get long and ugly.

    Time to start the pretrial confinement.

  4. Bill C says:

    Hard to believe AFCCA could get it that wrong. Whether the Melendez-Diaz argument is on track or not, the jurisdictional argument seems pretty clear.

  5. Anon says:

    Isn’t this a pretty hollow victory? So it goes back to trial and the judge has to follow the other Art 62 appeal decisions…

  6. Dwight Sullivan says:

    Actually, no. United States v. Anderson is procedurally indistinguishable from Bradford. CAAF will almost certainly reverse AFCCA in that caes on jurisdictional grounds as well. And none of AFCCA’s decisions in these Article 62 appeals was published, so none of them provides precedent binding on the military judges who handle the remands.

    [Disclosure: I’m one of the appellate defense counsel in Bradford, Anderson, and Skrede.]

  7. Anon says:

    I’m confused by what you wrote Mr. Sullivan. Wouldn’t the Art 62 remands (not Bradford) be binding on the military judges who handle them? I mean, regardless of published or not, they were overturned were they not?

    Additionally, while not binding, wouldn’t any unpublished Art 62 appeal directly on point serve as pretty persuasive authority to the Bradford judge and all other judges? I didn’t think trial judges liked to be overturned on appeal. Of course, I guess we all wait for CAAF’s opinion in Blazier to see if that changes anything.

    Lastly, isn’t the jurisdiction issue really a matter of ripeness? I read CAAF’s position that the Art 62 appeal was taken too early. But won’t the Govt almost certainly arrive at the same point in short order upon remand if the judge decides the lab report isn’t admissible without the extra lab witnesses?

  8. Dwight Sullivan says:

    0825 Anon, your questions require a very complicated answer.

    There were four Melendez-Diaz Article 62 appeals (Anderson, Bradford, Skrede, and Borgman). AFCCA reversed the trial judge in each. All four accused filed petitions for grant of review with CAAF and each of the four trial judges decided to delay further proceedings until CAAF acts on the petition. (JAJG filed petitions for extraordinary relief in all four cases asking AFCCA to order the military judges to proceed with trial immediately rather than awaiting CAAF’s actions of the petitions. AFCCA denied all four petitions for extraordinary relief. JAJG filed a writ appeal seeking CAAF’s review of the denial of one of the petitions — Anderson. JAJG moved for en banc reconsideration of two of the petitions for extraordinary relief and those motions remain pending at AFCCA.)

    So right now, the only one of the remand cases for which further litigation is imminent (following CAAF’s issuance of its mandate) is Bradford. Obviously the AFCCA decision in Bradford itself that CAAF reversed doesn’t bind the military judge. Nor do AFCCA’s decisions in the other three cases, since none was published. The same would be true for Anderson if it’s reversed and remanded on the same grounds as Bradford.

    As you suggest, Anon 0825, this isn’t a situation where a trial judge would think that he or she inevitably would be reversed for failing to follow those unpublished decisions, since CAAF is reviewing this area of the law in Blazier. If CAAF were to disagree with the Air Force Court’s approach, then FOLLOWING the unpublished decisions would result in the trial judge’s reversal. So these unpublished decisions put much less of a thumb on the scale than might a typical unpublished decision.

    As to your final point, it is possible that these remanded cases could lead to a second Article 62 appeal. On the other hand, maybe they won’t. Bradford’s court-martial has already been on hold since 29 July. Anderson’s has been on hold since 22 July. Rather than wait many more months to try the cases, perhaps the government will choose to lay the foundation that the military judges in those cases indicated would be sufficient to admit the drug testing reports into evidence.

    [Familiar disclosure: I’m an appellate defense counsel in Bradford, Anderson, and Skrede.]

  9. Anon says:

    The AFCCA website lists their opinions as published, unpublished, merits, and Art 62. When I open the Art 62 appeal cases the caption lists them as orders. Doesn’t that suggest they aren’t unpublished? Of course that same reasoning would lead us to conclude they aren’t published either. Regardless, I think if I were an Air Force trial judge I’d be loathe to ignore an “order” of AFCCA.

    Mr. Sullivan, can you shed any light on the distinctions of the 4 listed types of cases?

  10. Dwight Sullivan says:

    In military justice practice, a published opinion is one published in West’s Military Justice Reporter. The November decisions in Anderson, Bradford, and Skrede are all listed in WESTLAW as “Not Reported in MJ.” So as a matter of stare decisis, an Air Force trial judge in a case other than Skrede and an AFCCA panel in a case other than Skrede has no obligation to follow Skrede. And, of course, the trial judge in Bradford has no duty to follow the 23 November decision in Bradford, since it’s been reversed.

    So a trial judge who concludes that Melendez-Diaz demands an answer different than that which AFCCA gave in Skrede should, as a matter of stare decisis, follow his or her interpretation of Melendez-Diaz rather than AFCCA’s decision in Skrede.

    [Familiar disclosure: I’m an appellate defense counsel in Bradford, Anderson, and Skrede.]

  11. Dwight Sullivan says:

    p.s. — for stare decisis purposes, obviously what AFCCA’s web site lists as “merits” cases are unpublished decisions. Similarly, a decision in an Article 621 case that isn’t published in West’s Military Justice reporter is an unpublished decision.