For a court with largely discretionary jurisdiction — such as the Supreme Court or CAAF — one of the most important judicial functions is deciding which cases to review.
The change in CAAF’s personnel will likely affect the cases the court chooses to grant. If the court continues to require two votes to grant review of a case, obtaining a grant may be more difficult as CAAF functions as a three-member court for the foreseeable future. This will place a premium on effective petitions for grant of review.
In this post, I originally intended to remark that it’s curious that 3 of the 13 cases being orally argued at CAAF in October deal with members challenges. But then I looked at the issues themselves and saw that they were stunningly uninformative. Consider this issue in United States v. Terry, which will be orally argued on 24 October: “WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING TWO CHALLENGES FOR CAUSE.” That issue does nothing to engage the reader. Now consider the facts in Terry. The Air Force Court’s opinion reveals that Terry is a rape case. One of the members had two former girlfriends who were rape victims. One of those women became pregnant as the result of being raped and named the baby after the member. The other challenged member’s wife had been sexually assaulted by her stepfather. See United States v. Terry, 2005 CCA LEXIS 420 (A.F. Ct. Crim. App. Dec. 6, 2005). Those facts are fascinating. From these facts, Garner would create an issue that could win an O. Henry Prize.
The issue in Briggs is similarly uninformative. While the facts in Briggs aren’t nearly as compelling as those in Terry (but let’s be fair — few cases have facts as compelling as those in Terry), they still seem remarkably helpful to the appellant’s cause. The challenged member in Briggs was married to Briggs’s flight commander — who had counseled Briggs regarding an unrelated failure to pay a debt. See United States v. Briggs, 2004 CCA LEXIS 197 (A.F. Ct. Crim. App. Aug. 26, 2004). Why would the statement of the issue hide those facts from the reader? Did Briggs’s advocate bury those facts or has the CAAF clerk’s office launched some weird project to rewrite granted issues to make them as boring and unhelpful as possible?
The issue in Clay is better, but only marginally so: “WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE CHALLENGE FOR CAUSE AGAINST COLONEL [J], A MEMBER DETAILED TO THE COURT-MARTIAL PANEL, WHO DEMONSTRATED A DRACONIAN AND INELASTIC ATTITUDE TOWARD SENTENCING.” At least I know the general reason for the challenge for cause, though rather than offering us the bald CONCLUSION that the member demonstrated a draconian and inelastic attitude toward sentencing, the issue should have included FACTS suggesting such a draconian attitude. Alas, I can’t even find the Clay opinion on line, so I can’t discover what those facts might be.
I’ve been curious about how many people are actually reading CAAFlog. Let’s find out. I announce the following contest: who can write the best issue based on the facts in Terry? Post your entries as comments to this post. I will award the winner (determined solely on the basis of any subjective arbitrary criteria I choose to employ) with an appropriate prize. Entries are due by COB, Friday, 6 Oct.