I’ve managed to claw my way back onto the Internet.
We have previously noted the appellate government divisions’ proclivity for reconsideration petitions. Monday’s daily journal update included another denial of another government motion to reconsider. United States v. Gardinier, __ M.J. ___, 06-0591/AR (C.A.A.F. July 19, 2007).
Let’s look at some numbers. By my count, the various appellate government divisions lost just 19 of the 55 cases decided by full opinion by CAAF last term. (Simon, Lee, McAllister, Tate, Clay, Hardisson, Briggs, Terry, Brooks, Beatty, Wise, Adcock, Gardinier, Lewis, Pflueger, Thomas, Wilson, Albaaj, Resch. Please let me know if I missed any.)
So far, CAAF has denied government petitions to reconsider 4 of those. Gardinier; United States v. Brooks, 65 M.J. 12 (C.A.A.F. 2007); United States v. Tate, 64 M.J. 441 (C.A.A.F. 2007); United States v. McAllister, 64 M.J. 428 (C.A.A.F. 2007). So that’s 2 by Army GAD (Gardinier and McAllister), one by the Navy-Marine Corps Appellate Government Division (Tate), and one by the Air Force Appellate Government Division (Brooks).
I’m not criticizing GAD seeking for reconsideration of CAAF’s Gardinier opinion, which left me scratching my head a bit. But government motions to reconsider in 21% of the cases in which it lost seems like a rather high rate. The spate of government motions seeking reconsideration of opinions issued at the end of last term also suggests that the 2007 term’s rate may not have been atypical.