government appeal Tag Archives — Court-Martial Trial Practice Blog

ACCA and military judge partiality

August 7, 2010 | The Law Office of Philip D. Cave

On 28 July 2010, ACCA issued a memorandum opinion and decision for the government appeal in United States v. Kirk, ARMY MISC 20100443 (A. Ct. Crim. App. 28 July 2010).

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.

AFCCA Article 62 appeal order

June 8, 2010 | The Law Office of Philip D. Cave

Yesterday AFCCA issued an order in an Article 62, appeal, in United States v. Harris. There is a rather odd, perhaps bizarre, chronology. What next is the question?

Appellant charged.

Additional charges added.

CAAF and Article 62 appeals

February 26, 2010 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Bradford, a government appeal of a pretrial ruling.

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.