This year, retained civilian defense counsel represented the appellant in 5 of the 33 cases the produced opinions of the court.  But here’s an oddity:  all 5 cases with retained civilian counsel were Army cases.  Both the number and percentage of retained civilian defense counsel was up this term:  last year, retained civilian defense counsel appeared in 4 of 46 cases.

Retained civilian counsel prevailed in 2 of the 5 cases (40%).  In cases where the appellant was represented by a military or DOD civilian appellate defense counsel, the defense prevailed in 32% (9/28).  Last term, retained civilian defense counsel prevailed in 50% of the cases compared to 43% for military/civilian DOD counsel.

12 Responses to “2011 Term end o’ term stats Pt. III — retained counsel”

  1. Gene Fidell says:

    Good work on the number-crunching, but the database is so limited that it’s hard really to discern meaningful patterns. 

  2. Dwight Sullivan says:

    I won’t have any new end o’ term updates tonight.  WordPress has locked me out of the page on which we make our CAAFlog posts and won’t send me new log-in information.  Maybe someone is trying to tell me something.

  3. Socrates says:

    Generally, results from a statistical analysis do not stabilize to over a 50 percent confidence level until the sample size reaches at least 60.  Conveniently (but not by design), CAAF issues rulings on less than a statistically reliable sample size of cases each year.  The various pairings between judges display all the features of covalent bonding – a fleeting shared exchange of a molecular jurisprudence.

    Another more tedious and exhaustive study, which would draw from a much larger sample size, would be a citation study.  That is, list out all citations that each judge relied upon in opinions, concurrences, dissents, and examine the date and source (jurisdiction) of the citation.  For example, which judge relied on the oldest citation?  More searchingly, an average “age date” of citations for each judge could be discerned.  Do certain judges tend to reach back further in time?  Do some judges more liberally reach out to civilian citations?  Do some judges often use other types of sources – law reviews, publications, etc.? 

    My hypothesis would be that with this much larger sample size, one could ascribe a kind of jurisprudential “scope” to each judge – some with a wider lens – with some using a wide lens – searching further back in time and more laterally to other jurisdictions.  Other judges would likely display a narrower lens.

    Any guess on which judge likely uses the “widest” lens

  4. Dwight Sullivan says:

    An NFL football season has 16 games.  We can make some pretty good analyses of team strength on the basis of one variablle — won-lost record — over those 16 games.

    Crunching the numbers can also be useful to identify long-term trends.  More on that later today.  

  5. Socrates says:

    There are 256 regular season games in an NFL season (16 games per team in a year x 32 teams / 2 teams in a game).  This is a quite reliable sample size.  If there were only 16 games, we wouldn’t know much.

    But you are correct. I hope my point didn’t sound dismissive of your statistical work.  Your analysis is indeed interesting and useful, and does identify some patterns, just like an NFL record does.    

    Confidence levels and good analysis are different concepts.  Predictability (and statistical stability) are difficult to derive from small sample sizes.  You have provided some rather satisfactory confidence levels about the prediliction of CAAF judges, especially your two year results.  And over the years, your analysis will yield more and more reliable results, with confidence levels rising each year.   

    If the Patriots play the Giants 2 times, and the Giants win twice, we don’t really have confidence that the Giants are the better team such that we could predict the Giants win the third time.  (A “helmet catch” may be just as accidental as a particular fact that turns a case for either the appellant or the government).  So, I guess my point is rather pedantic: how confidently can we predict that, say, Judge Erdmann is going to vote for the defense in the next split decision, or in any of the next 10 splits.  I suggest, around 50% confident — maybe 51%.   

  6. Dwight Sullivan says:

    So-crates,  right you are.  Okay, I’m embarrassed!

  7. Phil Cave says:

    “Any guess on which judge likely uses the “widest” lens”

    Methinks Sr. Judge Efron among the current bench. 

  8. Phil Cave says:

    Actually, I believe I am wrong (making no allowance whether the writer wrote for the court, a concurrence, or a dissent), a completely unscientific survey seems to show —

    Ryan (also citing to the oldest military opinion from 1951).

    in that order, but keep in mind SJ Effron’s status since CJ Baker took the chair.

    Fosler seems to have been the case with the most cited red book decisions (13). 

    [Search:  “c.m.r.” and stucky and ryan and baker and effron and erdmann
    [Retrieve 121 cases
    [Find w/in document c.m.r.
    [Discount Court of Military Review cites.
    [Forget to search for board of review cases
    [Focus for “195” and get 15 cases
    [Go back and look for ABR, AFBR, NMBR and find several, the earliest being two AFBR cases from 1952 cited in two different opinions (Ryan/Erdmann) and NBR x2 from 1953, again Ryan/Erdmann

    All very unscientific so feel free to catch me out.

  9. Dwight Sullivan says:

    Don’t forget that Judge Stucky began an opinion this term with a quotation from an 1865 English opinion in the first paragraph.  United States v. Weeks, 71 M.J. 44 (C.A.A.F. 2012).  That same opinion cited the 1895 second edition of Colonel Winthrop’s treatise, the 1920 Articles of War, the 1921 and 1949 Manuals for Courts-Martial, the 1949 HASC hearings on the UCMJ, and the 1951 Legal and Legislative Basis for the Manual for Courts-Martial, among other sources.

  10. Phil Cave says:

    Good one My Liege!
    And of course in Graf they cited to eh a Canadian case and the Queens’ Regulations and Orders for the Canadian Forces, eh.

  11. Socrates says:

    Dwight, don’t be embarrased – you do all the hard work and I just made a noise that sounded like heckling.  But you got me thinking: The CAAF “league” has just two teams – Appellant and Government – with a 50-game schedule.  If the NFL had just two teams – even if the league consisted of the Patriots and Giants – by game 50, the stands would be empty.  It proves the dedication of MJ wonks that we maintain our interest.  Of course, for the analogy to really hold, each game would have to have 5 referrees, and only those games where the referree’s calls affected the outcome would be worthy of comparison (e.g., each referees standard for “holding” or “pass interference” pentalties that were critical to the outcome).

    I’m glad a few took a nibble at my ‘scope of lense’ inquiry/hypothesis.  It was actually derived from one of your earlier posts (referring back to the 1970s) about military justice judges complaining about the “civilianization” of MJ…and one of your posts from quite a while back where you examined how often civilian courts cite military courts.  I don’t remember if you have ever done a post about how often CAAF or the service courts cite civilian precedent. 

  12. Dwight Sullivan says:

    So-Crates, it’s funny that you should use the phrase “CAAF ‘league.'”  During the same office conversation that gave rise to this evening’s post about stare decisis, one of my colleagues suggested a CAAF Fantasy League.