The Golden CAAF II will keep grazing at the Kabul Klipper’s house for a while.  As the No Man noted, the Supremes denied the cert petition in Smith v. United States, No. 10-18, on Monday.

The Supremes haven’t granted plenary review of a servicemember’s cert petition under 28 U.S.C. § 1259 since 8 November 1996, when it granted the cert petition in Edmond v. United States, 519 U.S. 977 (1996).  (The Supremes did GVR one military cert petition since then — O’Connor, which was GVRed for further consideration in light of Ashcroft v. Free Speech CoalitionO’Connor v. United States, 535 U.S. 1014 (2002).) 

Since granting review in Edmond, by my count, the Supremes have denied 238 servicemembers’ cert petitions.

The total number of military cert petitions filed under 28 U.S.C. § 1259 since the right was first established in 1983 has been, by my count, 979.  There have been 9 plenary grants, six upon petition by a servicemember (Solorio, Weiss, Davis, Ryder, Edmond, Loving) and the most recent three upon petition by the SG (Scheffer, Clinton v. Goldsmith, Denedo).  There have been 5 GVRs upon petition by an accused (Goodson v. United States, 471 U.S. 1063 (1985);  Jordan v. United States, 498 U.S. 1009 (1990);  Carpenter v. United States, 515 U.S. 1138 (1995); Clark v. United States, 515 U.S. 1138 (1995) (GVRing six CAAF decisions); and O’Connor) and one GVR upon petition by the SG.  United States v. Mobley, 523 U.S. 1056 (1998) (GVRing three CAAF decisions for further consideration in light of Scheffer).

It appears that in the entire history of SCOTUS review of CMA/CAAF decisions, only one servicemember has received an actual sentence reduction as the result of petitioning for cert:  Specialist Four Goodson, who got rid of his BCD (but not the other portions of his sentence) as the result of his GVR from SCOTUS for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984).

14 Responses to “The Smith cert denial”

  1. Mike "No Man" Navarre says:

    For all the appellate Money Ball aficionados, why is it again so important that the service appellate defense shops maintain a competency in Supreme Court practice?

  2. Marcus Fulton says:

    Because Congress tells us we have to do it. And do you really want to explain Money Ball to your DP client?

  3. Mike "No Man" Navarre says:

    Congress says you have represent them when they request rep. Congress doesn’t say you have to file a cert. petition you think will lose. Why not draft a good Clemency and Parole or Discharge review package with your limited time? There’s a better chance of meaningful relief there.

  4. Jason Grover says:

    No Man, Klipper,
    Isn’t the important stat how these numbers compare to the civilian criminal population? My guess is that military appellants are not in any worse position than federal criminal appellants. Of course, the large number of per se petitions out of the federal system skews the analysis somewhat.

  5. sg says:

    Sorry to interject my ignorance, but what, please is “Money Ball”?
    It sounds like a betting pool of some type.

  6. Dwight Sullivan says:

    sg, Moneyball is one of the greatest books ever written in the English language:

    The book discusses how a small-revenue team like the Oakland Athletics could have one of the best records in baseball over an extended period. Today we might answer that question with: steroids. But when Michael Lewis wrote the book in 2003, he discussed how the As’ general manager — Billy Bean — was an early adopter of SABERmetrics. While other GMs were overpaying for baseball talent because they were focusing on the wrong statistics, Billy Bean concentrated on statistics most likely to result in winning more games. Because no one else in baseball was trying to sign players based on those statistics, he could often sign Player A, who outperformed Player B, at a much lower salary than Player B’s. An overly simplified example (and what the As were doing was much more complex and sophisticated) would be that while most Major League teams were concentrating on batting average, the As were concentrating on on-base percentage, and a team with a higher on-base percentage is likely to win more games than a team with a higher batting average but lower on-base percentage.

    So Moneyball has become a metaphor for achieving efficiencies by using metrics that are closely related to desired outcomes — especially where those metrics are inconsistent with “common wisdom,” producing a market inefficiency that allows purchasing the desired metrics at a bargain price.

  7. sg says:

    So Moneyball has become a metaphor for achieving efficiencies by using metrics that are closely related to desired outcomes — especially where those metrics are inconsistent with “common wisdom,” producing a market inefficiency that allows purchasing the desired metrics at a bargain price.

    So if I get you correctly, the term “Money Ball” is a way of describing a process for determining how a given system really works versus how it is perceived to work, and then exploiting that knowledge to provide the best likely outcome within those actual rules.
    So in the context of the topic question, what Mr. Navarre is asking is essentially “is the maintenance of a competency in Supreme Court practice the most efficient use of resources given the fact that there’s a much much larger workload for administrative reviews, clemency boards and so forth being the actual bread and butter work for military appellate lawyers?”

    I’ll have to add the ebook to my list.

  8. Dwight Sullivan says:


    As one of my law school professors was prone to say, you’ve hit the nail with your head!

  9. Brien Le Chien says:

    Of course, if we were really to moneyball appellate work we would stop appealing voluntary guilty pleas and concentrate efforts on accuseds who actually contested the charges (regardless of sentence).

    But wait, we have already discussed that at length.

  10. John O'Connor says:

    Brian, you’re singing from my hymnal.

  11. Anonymous says:

    But if we moneyballed the military justice system, would we bother to have courts-martial at all?

  12. Dew_Process says:

    Yes, but experienced 0-4’s & 0-5’s would be TC and DC respectively, MJ’s would be from a DoD Civilian Judge Pool, and new JAGs, fresh from law school, reading, diagraming & digesting appellate decisions and arguments and moot court, would sit on the CCA’s, before becoming Appellate Counsel.

    Wait . . . .

  13. Anon says:

    The A’s haven’t won squat one with moneyball FYI. It appeals in financial situations where there is monetary value for the amount of time and effort put into something. Not so much in miljus.

  14. publius says:

    Moneyball’s all sizzle. Beane won, when he won, with good young pitching. The “undervbalued asset” nonsense was just that. The A’s won when Hudson, Zito and Mulder (homegrown prospects all) were young and in their prime. They haven’t won since. Their Bay Area brethren won the same way. The Giants won this year w/ good young, homegrown pitching. If there’s an analogy to military appellate litigation here, it’s let the aggressive young JO’s take over.