Yesterday CAAF docketed two certified issues in an Air Force case:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS APPLIED THE CORRECT STANDARD OF REVIEW WHEN DETERMINING WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A SANITY BOARD.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED APPELLANT’S REQUEST FOR A SANITY BOARD FINDING HE HAD NOT MET HIS BURDEN OF FACTUAL PERSUASION TO JUSTIFY AN INQUIRY PURSUANT TO R.C.M. 706.

United States v. Mackie, __ M.J. ___, No. 08-5005/AF (C.A.A.F. Dec. 26, 2007). The Air Force Court’s opinion in the case is published at 65 M.J. 762 (A.F. Ct. Crim. App. 2007). We previously discussed that opinion here.

This is the fifth case that the Judge Advocate General of the Air Force has certified to CAAF since July. In the preceding eight years, the Judge Advocate General of the Air Force had certified a total of three cases to CAAF. So far in 2007, there have been six cases certified to CAAF — five (Webb, Miller, Melson, Perez, Mackie) by the Judge Advocate General of the Air Force and one (Gutierrez) by the Judge Advocate General of the Army.

In each year from 2003 through 2006, the Judge Advocate General of the Army won the certification derby. In 2002 the champ was, of all people, the Judge Advocate General of the Coast Guard, who was responsible for the only two certified issues during that calendar year. The Judge Advocate General of the Navy was the champ in 1999 and 2000 and tied with the Judge Advocate General of the Air Force in 2001. Laying out the service breakdown on a graph suggests hot and cold streaks in each service. It makes me wonder whether the hot streaks were caused by some particular individual pushing for certifications with a cold streak following when that individual PCSed or retired. If so, my guess is that the directors of the respective appellate government divisions are the key players in the certification process. It would be interesting to overlay a graph of the appellate government heads’ tenure on the graph of the corresponding service’s certification numbers.

2 Responses to “New certified case [expanded]”

  1. Anonymous says:

    What happened to issues being certified because they presented novel or important legal issues, as opposed to the case specific claims of fact-bound error-correction now certified? CAAF has to grant, obviously, but why would it hear argument on these cases?

  2. Jason Grover says:

    Equally interesting would be to fine out how many requests to certify were denied by the JAGs. When I was in Code 45, there were several that the appellate government folks expressed an interest in certifying, but that were not, in the end, certified. That suggests, at least during that time period, the system worked as intended.