The daily journal is now available on CAAF’s web site through 16 February. In looking over the month to date, I was struck by the number of summary dispositions: 11.
CAAF has denied 34 petitions thus far this month. So granting and summarily disposing of 11 cases represents an enormous percentage of its petition docket. Here’s a breakdown:
No reason given: 2 (these are usually long-term confinement cases where CAAF wants to give the accused an opportunity to file a cert petition with the Supremes)
Post-trial delay: 4
Error in the providence inquiry: 2
Illegal sentence: 1
Ineffective assistance of counsel: 1
Dismissing CPPA language from spec: 1
I am struck by the variety of reasons leading to the summary dispositions. The February docket suggests once again that, de facto, CAAF is seriously scrutinizing and reviewing every case that comes before it and its petition denials and summary dispositions serve the same functions as summary dispositions without oral argument in criminal cases before the 12 geographic circuits. Why not formalize that practice and simply grant an automatic appeal right to CAAF for the loser in every decision of a CCA — by the defense or by the government, thus eliminating both the CAAF petition process and the certified issue? It doesn’t appear that such a change would actually increase CAAF’s workload, since it would be free to hear oral argument only the same cases it chooses to review now, with the rest being decided summarily on the basis of the briefs — just as they appear to be deciding them summarily now on the basis of the petition and supp. This would also eliminate the ugly appearance that the government has an advantage over the defense because the government has a guaranteed path to CAAF through the certification process. While a Judge Advocate General occasionally certifies a case that the government won at the CCA level, that is sufficiently rare to be remarkable.
I think the time is ripe for such a change, which would obviously open the door to additional cert petitions in military justice cases. Perhaps a CAAFlog bill writing workshop is in order.