I overlooked an anniversary last month. 22 April 2012 marked the 10th anniversary of the last time the Supreme Court granted a servicemember’s cert petition seeking review of a CAAF decision. O’Connor v. United States, 535 U.S. 1014 (2002). O’Connor was granted, vacated, and remanded for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). We would have to go back to 8 November 1996 to find the last time the Supremes granted plenary review of a case upon a servicemember’s cert petition. Edmond v. United States, 519 U.S. 977 (1996). (Since then, the Supremes have granted plenary review upon the Solicitor General’s cert petition in three cases — Scheffer, Clinton v. Goldsmith, and Denedo.)
Now look at these stats for the number of cert petitions filed by servicemembers seeking review of CAAF decisions over the past few terms:
The number of petitions filed by military appellate defense divisions is even smaller than the numbers set out above. During the current Supreme Court term, the four appellate defense divisions have filed a combined total of one cert petition (Miranda, No. 11-1237, filed by a Marine Corps Reserve appellate defense counsel). One of the other two cert petitions (Dietz, No. 11-727) was filed by a civilian counsel while the third (Yelverton, No. 11-7124) was filed pro se in a case in which the Supremes didn’t actually have cert jurisdiction. During the October 2010 term, the four appellate defense divisions filed a combined total of 2 cert petitions (Nerad, No. 10-532, an Air Force case in which I represented the petitioner, and Mullins, No. 10-710, a Navy case in which LCDR Torrisi repersented the petitioner). Two of the remaning three cert petitions (Diamond, No. 10-922 and Luke, No. 10-1294) were filed by civilian counsel. The final military cert petition (White, No. 11-5041) was filed pro se, but was rejected by the Court due to denial of IFP status and was never refiled.
We’ve seen that by many objective measures, the appellate military justice workload has diminished considerably over the past five years. The current structure of four appellate defense divisions, four appellate government divisions, and four courts of criminal appeals may prove unsustainable both as a fiscal matter and as a practical matter. Can an appellate shop maintain the level of experience required to provide quality representation as the number of cases shrinks? Or would both of the parties on appeal receive better representation if all of the appellate defense and all of the appellate government shops were merged?