(dissenting):
As I stated in my concurring opinion when this case was first decided, I am unwilling to conclude the military judge abused his discretion. United States v. Baldwin, 53 M.J. 676, 681-82 (A.F.Ct.Crim.App.2000) (Burd, J., concurring). I remain unwilling to find such abuse.
The lead opinion places great emphasis on the fact that the military judge made the mistake of uttering the words corpus delicti. I see nothing improper in considering concepts with roots that trace to the common law in judicial decision making at the trial level. Contemplation of historical underpinnings is not the exclusive province of appellate tribunals.
So often at the trial level, judges are called upon to make decisions at the moment or within a few minutes. They rarely ever have the luxury of virtual timelessness enjoyed by the appellate bench. After having read the lead opinion, one would think the military judge rendered a completely indefensible decision. He did not. He made a courageous and rational determination that a confession was inadmissible because there was insufficient independent evidence to corroborate the essential facts admitted in the confession. See Mil.R.Evid. 304(g). The issue is not whether I would have made the same decision. The majority today sends a loud message that trial judges have very little, if any, discretion. This is why I dissent.