Tonight, the weather over parts of the Mid-West is being influenced by the “lake effect.” I wonder if there is a “Moreno effect” that will influence the behavior of the Courts of Criminal Appeals. As CAAF demands quicker resolution of appeals, will the CCAs respond by issuing fewer published opinions, placing a premium on speed over judicial craftsmanship?

It’s WAY too early to draw any conclusions, but let’s look at the numbers so far. Over the last five years, the CCAs appear to have issued fewer published opinions in FY 2007 than in a comparable period during any other year, though not by much. There are four published opinions available on the CCAs’ web sites or on either of the major electronic research services issued between 1 October and 1 December. (Of course, it is possible that for some unknown reason, one or more of the CCAs is sitting on a published opinion that it doesn’t deign to share with the outside world. I can’t imagine why CCA published opinions don’t go up on their web sites the day they are released — or at least with the same “regularity” with which the CAAF web site updates its “daily” journal.) Two are Air Force Court opinions, while the Army and Navy-Marine Corps Courts have contributed one apiece. United States v. Brooks, __ M.J. ___, 2006 WL 3361952 (A. Ct. Crim. App. Nov. 21, 2006); United States v. Attucks, 64 M.J. 518 (A.F. Ct. Crim. App. 2006); United States v. Viera, 64 M.J. 524 (A.F. Ct. Crim. App. 2006); United States v. Falcon, __ M.J. ___, 2006 CCA LEXIS 252 (N-M. Ct. Crim. App. Oct. 10, 2006). (For reason that I can’t fathom, Falcon isn’t even on WESTLAW yet.)

Here are the stats for the same period during the previous four fiscal years:

FY 2006: 16
FY 2005: 5
FY 2004: 6
FY 2003: 16

So FY 2007 could catch up with FYs 2005 and 2004 if the CCAs pump out even a slightly above average number of published opinions in December. But it will be interesting to track the long-term trend lines to see if there appears to be a Moreno effect at play.

–Dwight Sullivan

One Response to “Moreno effect?”

  1. Anonymous says:

    None noted, none expected. That is unless the Appellant can show an actual prejudicial effect. I have one in line now where we won on appeal after extraordinary long delays in the appellate process, and on retrial client was sentenced to quite a bit less than he had served at time of trial. Various “appeals” for release pending appeal were denied, the MJ declined to release from PTC, and now the ROT is still not done six months after retrial.
    Moreno effect not noted, not expected.