For tonight’s installment of WWBJD, we take a quick peek at CAAF’s legal sufficiency jurisprudence. I looked at every time CAAF has cited Jackson v. Virginia, 443 U.S. 319 (1979), since 15 October 2002, when Judge Erdmann joined the court. The total is 22. In 20 of those instances, CAAF evaluated the legal sufficiency of a conviction under the Jackson standard. Those 20 cases are the subject of our inquiry.
I began this research with a preconception that legal sufficiency review is useless. And it generally is. Consider, for example, United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006), where CAAF granted review of “whether the evidence is legally sufficient to sustain Appellant’s conviction for taking indecent liberties with” his two young daughters by “having them engage in sexually explicit conduct for the purpose of creating a visual depiction of it.” Did the Appellate Government Division get to write that issue? Is there more than one possible answer to that question? But despite lopsided legal sufficiency cases like Roderick, Jackson v. Virginia generated more relief that I had expected. (And isn’t finding empirical results that confound expectations and “common knowledge” the whole point of Bill James’ approach?)
In 16 of the 20 cases, CAAF rejected the legal sufficiency challenge. United States v. Brown, 65 M.J. 227 (C.A.A.F. 2007); United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007); United States v. Young, 64 M.J. 404 (C.A.A.F. 2007); United States v. Washington, 63 M.J. 418 (C.A.A.F. 2006); United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006); United States v. Pope, 63 M.J. 68 (C.A.A.F. 2006); United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006); United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006); United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006); United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005); United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005); United States v. Rollins, 61 M.J. 338 (C.A.A.F. 2005); United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005); United States v. Seay, 60 M.J. 73 (C.A.A.F. 2004); United States v. Springer, 58 M.J. 164 (C.A.A.F. 2003); United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).
In two of the remaining four, CAAF either altered or invalidated a conviction but awarded no sentence relief. United States v. Resch, 65 M.J. 223 (C.A.A.F. 2007); United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006).
That leaves two out of twenty cases in which CAAF granted meaningful relief based on, at least in part, a Jackson v. Virginia analysis. One is United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005), in which CAAF invalidated a driving while impaired conviction on legal sufficiency grounds and set aside the sentence based on that and another reversed finding. The other is United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003), in which CAAF knocked an involuntary manslaughter finding down to negligent homicide and set aside the sentence based on Jackson.
So the next time I see a granted legal sufficiency issue in the Daily Journal, I’ll suppress my natural inclination to wonder why CAAF is wasting its time on such a dog, now that I know that the dog does occasionally hunt.