So far this week, CAAF has announced five opinions. These cases capped off a remarkably productive start of the 2007 term. CAAF issued more opinions from October to January this term than in any other comparable period starting in 1997, the first term for which the court’s opinions are available on its web site.
This term has also been characterized by remarkable unanimity. During no other term for which opinions are available on the CAAF web site did the court decide its first 18 cases without a single separate opinion. Of course, it is both mathematically and practically easier to reach unanimity with three judges than five. Perhaps we should refer to the first four months of this term as “The Era of Three-Part Harmony.”
Thus far Chief Judge Effron has authored six opinions, Judge Erdmann has authored six, Judge Baker has authored five, and the court has issued one per curiam opinion.
Other than the one case set for reargument, only two cases argued in October and November have yet to be decided. The first is Gutierrez, No. 06-5005/AR, a case in which The Judge Advocate General of the Army certified the rather unhelpfully worded issue of “Whether the United States Army Court of Criminal Appeals erred in holding that the trial defense counsel did not affirmatively waive an affirmative defense instruction with respect to a lesser-included offense.” It was argued on 14 November.
The second November case remaining to be decided is Wise, No. 06-0610/AR. Wise presents an unusually interesting issue: “Whether Appellant’s confinement conditions, including and in particular with respect to his claim of having been confined with Enemy Prisoners of War in Iraq, were unlawful, and whether, in the context presented, Appellant forfeited his claims of unlawful post-trial confinement by failing to exhaust his administrative remedies under United States v. White, 54 M.J. 469 (C.A.A.F. 2001).” Wise was argued 28 November.
CAAF heard three cases on 28 November. Chief Judge Effron has written the opinion of the court in one (Green) and Judge Erdmann has written the opinion of the court in another (Carruthers). So I expect to see Judge Baker as the author judge in Wise. Judge Baker’s national security background would also seem to make him a logical candidate for assignment as the Wise author judge.
CAAF heard four cases the week of 14 November. Chief Judge Effron has written for the court in one (Perez), while Judge Erdmann wrote for the court in another (Brooks). Judge Baker has not yet written an opinion of the court for a case argued that week. But one case from that week (Moran) will be reargued. CAAF didn’t announce that reargument until 10 January, so it appears that Moran was probably assigned to a judge at the conference for the 14 November arguments. If Judge Baker was originally assigned as the author judge in Moran, then each judge would have had one opinion from that week and one of the judges would have received a second with Gutierrez. So while Judge Baker is not the author judge of any opinion released yet from the week of 14 November, it doesn’t seem safe to assume that he will be the author judge in Gutierrez.