As many of you know, I am a huge fan of Bill James, the great sabermetrician (baseball research guru). So in continuing to think about the Christian pro se IFP cert petition, I found myself wondering: What would Bill James do? (WWBJD?) And the obvious answer is that he would comb through the available data looking for patterns.

So I did just that and was astounded by what I found.

I compiled my list of military cert petitions by searching for “Armed Forces” in the Supreme Court’s on-line docket. Since any military cert petition would seek a writ of certiorari directed to CAAF and since any military case that meets the Supremes’ statutory jurisdiction would have CAAF as the lower court, I believe this search reveals every case in the universe. But if I missed a case, please, please post a comment to let me (and everyone else) know.

Here’s what I found:

Since the Supreme Court’s October 2002 term, the Army Defense Appellate Division has not filed a single cert petition. In that time, seven cert petitions have been filed in Army cases, but 5 (Christian, Shelton, Adams, Ronghi, Glover) were filed pro se IFP while two (Crousser, Saintaude) were filed by civilian counsel.

During that same period, eight cert petitions were filed by the Air Force Appellate Defense Division (Lovett, Jenkins, Keyser, Davis, Traum, Moses, Robinson, Phillips), though one, Lovett, was filed after Lovett won a writ from CAAF compelling continued representation. One additional Air Force case (Johnson) was filed pro se IFP.

Even the Coast Guard appellate defense counsel filed one more cert petition (Stirewalt) than all of Army DAD combined.

During that same time span, Navy-Marine Corps Appellate Defense filed 14 cert petitions (Craig, Rose, Washington, Parker, Magyari, Quintanilla, Fisher, Disney, Pratchard, Ribaudo, Allen, Strother, Dowty, Hurn), while civilian counsel filed cert petitions in another three Navy-Marine Corps cases (McKeel, Lucas, House). No sailor or Marine filed a pro se cert petition during that period.

Interestingly, in the October Term 2002, Army DAD filed three cert petitions (Willenbring, Morgan, Benton).

It is also interesting to note some Army cases where cert was never sought filed — by counsel or IFP. For example, why was no cert petition filed in Kisala, 64 MJ 50, a case that presented the same issue as Rose, 64 MJ 56, where the Navy-Marine Corps Appellate Defense Division filed a strong (albeit ultimately unsuccessful) cert petition? Scrolling through CAAF opinions in Army cases where the accused lost reveals many other cases where the accused lost an issue that, to me at least, would rise about the “frivolous” standard.

Perhaps an Army DAD counsel would say, “Ah, but we were right. The 14 cert petitions filed by the Navy-Marine Corps Appellate Defense were a grand waste of time, since all of them were denied.” But it is not a counsel’s duty to decide whether an issue is certworthy, much less whether it is likely to be granted; rather, it is a counsel’s duty to decide whether the issue clears the frivolousness hurdle. Many cases will exceed the frivolousness standard but fail the certworthiness standard. I believe it is a military appellate defense counsel’s duty to file a cert petition in those cases, if the client asks counsel to do so. The effective date of LWOP issues in Christian and Ronghi, in both of which the confined soldier filed a pro se IFP petition, easily cleared the frivolousness standard.

I began this post by asking WWBJD. He would actually do quite a bit more than I did tonight. He would look at how many available cases there were from each service over the relevant time period. In other words, how many CAAF cases did members of each service lose, since that is the universe of cases in which a cert petition might be filed. (Remember that universe also includes many CAAF summary dispositions that are not on the opinions page of its web site.) He would also do some sort of qualitative assessment to determine how many cases in that universe would probably fail the “frivolousness” test. Those cases would be excluded and the remaining cases would give us some guide of the pool of cases in which the appellate defense counsel could have, but didn’t, file a cert petition. Only with the resulting numbers in hand could truly meaningful comparisons be made among the various services.

Sure, sure — and someone should do all of that. But when the number of cert petitions filed by the appellate defense division of the largest branch of our military since 18 November 2002 is precisely zero, it seems apparent that there is a problem. Further analysis is necessary only to tell us the true extent of that problem.

–Dwight Sullivan

3 Responses to “WWBJD?”

  1. Marcus Fulton says:

    Bill James would count the number of military appellants that have received meaningful relief from the Supreme Court. After all, that’s your “runs scored.” The number of grants isn’t as useful. Then he would recommend that confined service members’ families start baking birthday cakes with files in them. I bet the number of military confinees that have escaped custody and remain free to this day exceeds the number of appellants that have received meaningful relief from the Supreme Court.

    That said, zero cert petitions in five years sounds like a policy. Or maybe they’re just that happy with CAAF.

  2. gene fidell says:

    And let’s not forget that most CAAF cases involve denied petitions that don’t even qualify for getting in the front door at the Supreme Court. It’s even grimmer if the SG were correct-which he isn’t–that only granted issues (as opposed to cases) can be taken up on cert.

    The inter-service discrepancies on petitioning for cert are disturbing. Are the defense chiefs aware that they seem to be applying different standards? Have they discussed it? Will they now?

    Where is my can of purple paint?

  3. Guert Gansevoort says:

    The Clipper, and for that matter the Army DAD, may be on to something here. In the twenty-three years that the Court has had the ability to review decisions of the C.A.A.F., it has done so in only ten cases by my count. Only two of those, United States v. Scheffer, 523 U.S. 303 (1998) and Davis v. United States, 512 U.S. 452 (1994), have addressed substantive legal issues not relating to jurisidiction. And, since the SG sought review in Scheffer, that means only one appellant, Operations Specialist Seaman Apprentice Robert Davis, has ever successfully petitioned the Court for review on a substantive issue. And even then, the Supreme Court ultimately agreed with the Navy-Marine Corps Court’s favorite line, “these assignments of error are without merit.” United States v. Davis, 1991 C.M.R. LEXIS 1210 (N.M.C.M.R. 1991)(unpublished decision).

    That being said, numbers do not lie. The Army DAD is failing in its statutory obligation to raise non-frivolous issues at the Supreme Court even though these issues will ultimately not be reviewed by the Supreme Court unless their client is named Davis. If the DAD’s representation is determined by outcome, and not by its statutory obligation to represent their clients before ACCA, CAAF, and the Supreme Court, one wonders why it takes cases to the Army Court of Criminal Appeals.