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:

Petitions filed 1 Oct 2006 – 30 Sep 2007:  25
Petitions filed 1 Oct 2007 – 30 Sep 2008:  20 (including SG’s Denedo petition)
Petitions filed 1 Oct 2008 – 30 Sep 2009:  14
Petitions filed 1 Oct 2009 – 30 Sep 2010:  12
Petitions filed 1 Oct 2010 – 30 Sep 2011:   5
Petitions filed 1 Oct 2011 – present:    3
As we’ve previously noted, no cert petition filed on a servicemember’s behalf was granted during that period, though the one cert petition filed by the Solicitor General seeking review of a CAAF decision (Denedo) was.  The Solicitor General waived the right to respond to 75 of the 78 cert petitions filed on servicemembers’ behalf.  (The SG chose to file an opposition in  Loving, No. 09-989; Smith, No. 10-18; and Huntzinger, No. 10-158.)  In the 75 cases where the SG waived the right to respond, the Supremes called for a response in 8 (Foerster, No. 07-359; Stevenson, No. 07-1397; Wuterich, No. 08-1133; Rodriguez, No. 08-1465; Weston, No. 09-287; Weichmann, No. 09-418; Neal, No. 09-1414; and Clayton, No. 09-1532).

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?

6 Responses to “Is the military cert petition an endangered species?”

  1. stewie says:

    As the wars wind down, we could find trial volume rising again, it wouldn’t seem wise to consolidate until we had a few years of “peacetime” trial volume to examine.

  2. Mike "No Man" Navarre says:

    Not sure I agree with Stewie on the uptick in c-m with the wars winding down. We will also see declining end strengths. And I don’t know that the current preference for admin measures won’t stick now that it is so complicated and time consuming, and everyone is now aware of issues like the Lost Battalion. But it is probably worth watching.

    I think that with the advent of the civilian Deputy at AF and N-M appellate shops there is some guaranteed corp knowledge on the cert petition. Ms. Snyder and the other guy are both excellent sources. Can the budget sustain two such qualified people serving the current c-m population. . . . I’m not that good with numbers to be able to answer that. But I think the G will point to the civilian deputies as maintaining this capability.

    By the way, does Army DAD have a civilian deputy? My last encounter over there suggested not.

  3. stewie says:

    I’m not predicting an uptick, but I think assuming it will always be this low, or lower is equally unwarranted thus far, too soon to tell. And no, no civilian deputy at Army DAD.

  4. Gene Fidell says:

    These data are thought-provoking in a number of other respects. E.g., how, given the low numbers and the waiver pattern into which the SG has settled, can there be any principled objection to removing the unique limits on Supreme Court certiorari jurisdiction over CAAF cases?

  5. Cap'n Crunch says:

    I’d like to see a middle ground taken: i.e., cases that CAAF takes; or cases where assignments of error were raised before the CCAs.  Takes out the cases that do not have assignments raised before the CCA.

  6. Gene Fidell says:

    Cap, there’s no need for a middle ground: the Supreme Court would make short work of those cases on the basis of failure to preserve the issue. This is business as usual in appellate practice, and military cases ought to be handled the same as other criminal appeals. 

    For its part, CAAF would do well simply to dismiss any case in which the supplement listed no errors. Why doesn’t one of the appellate government divisions move to dismiss such a case? Let the amicus briefs fly! Then if CAAF granted and reversed, the government could file a cert petition challenging CAAF’s reading of the “good cause shown” clause. Any takers?