A new prosecutor once complained to me about a certain celebratory tradition of Marine Corps defense counsel, claiming that it is unprofessional bragging. “When you lose 90% of the cases,” I responded, “you really need to celebrate the wins.”

And the defense really does lose (that is to say, there is a conviction) in about 90% of courts-martial. For instance, the FY13 report of the Code Committee provides the following numbers for the period October 1, 2012 to September 30, 2013:

The Army tried 1,087 general and special courts-martial, resulting in 989 convictions and 98 acquittals (a 91% conviction rate).

The Navy tried 293 general and special courts-martial, resulting in 262 convictions and 31 acquittals (an 89% conviction rate).

The Marine Corps tried 427 general and special courts-martial, resulting in 367 convictions and 60 acquittals (an 86% conviction rate).

The Air Force conducted 619 general and special courts-martial, resulting in 525 convictions and 94 acquittals (an 85% conviction rate).

The Coast Guard conducted 23 general and special courts-martial, resulting in 20 convictions and 3 acquittals (an 87% conviction rate).

As the 2,163 courts-martial resulting in convictions in FY13 work their way through the military appellate system, we will have a reason to discuss maybe 100 of them on this blog. But those 100 or so cases will be notable because of asserted errors for which a remedy will benefit the accused (and, if you believe that military justice is a zero-sum game, hurt the Government).

We won’t discuss the vast majority of cases – especially the cases with airtight investigations, overwhelming proof of guilt, and flawless prosecutions – because there will be nothing much to discuss. Frankly, from an appellate perspective, those cases are boring.

But when we wade into the provocative muck of these other cases – the ones with judicial bias, prosecutorial misconduct, insufficient evidence, issues of first impression, and just plain bad lawyering – we’re inevitably talking about reasons why seemingly-bad people should be set free. Intelligent conversation about these cases requires looking beyond the bad things that the people in them did (or at least were convicted of doing) and focusing on the system that is punishing them and the kind of justice that it provides.

My contributions to this blog aren’t defense-oriented nor are they prosecution-oriented. I’m interested in the law, I want to get it right, and I write about cases that intrigue me. That’s my bias. And I suspect that the other contributors, and the vast majority of our readers, feel exactly the same way.

13 Responses to “The bias of blogging”

  1. Bill Cassara says:

    Amen to that.  I have always felt the 90% figure is very misleading, as it includes guilty pleas, and cases where an accused may be acquitted of the most serious charges and convicted of minor or lesser included offenses.  But guilty pleas and acquittals don’t generate as much interest and obviously acquittals don’t generate appeals. So we comment on those cases that generate appellate or trial level interest, and the overwhelming majority of cases don’t merit media attention.

  2. ArmyTC says:

    I’ll say this: I don’t mind TDS traditions like flying the Jolly Roger and getting case name streamers for their guidons when they get acquittals. Remember that most of he time their clients are going to jail and the rest of the time they’re in article 15 and chapter advising hell. Because dude, I totally believe someone put weed in your brownie. 

  3. Former SJA says:

    ZDS–Very well-articulated point, but if it walks like a duck and quacks like a duck, it’s still a duck.  In describing the minority of cases of interest, you note that the reasons they are interesting is largely because (from your perspective) they were guided by biased judges, prosecuted by inept or unscrupulous legal offices, or flat-out wrongly decided based on the evidence.  I don’t disagree that these things exist in our practice arena, but I don’t think they are the source of every “bad” case or decision.  Sometimes we find more in our rationalizations than may have existed in reality. 
    We do well to remember that there are multiple lenses through which to assess or view every situation. Personally, I hate the Yankees, and I generally think those associated with them are nothing but crooks and fat cats.  But I know the legion of Yankees fans aren’t corrupt or dumb (at least universally), and I can admit–reluctantly, in my limited cooler-head moments–that the Yankees are probably no less corrupt or villainous than my team.  My view of them is just tainted by my personal bias.
    BTW–I give you props for almost always providing well-articulated accounts of cases and decisions, even if I sometimes disagree with your conclusions.  I also like reading most of the comments here, and they usually open my eyes to different views I hadn’t necessarily considered.  But I tend to skim past the “they’re all just crooks with evil intentions who sold themselves to the Man” rants.  I just don’t think they add much to the discussions.

  4. AF JAG says:

    @ Zachary Spilman,
    I’ll second that.  I consider CAAFLog to be a public service.  While you and I often have divergent views of how that law should be applied in a particular case, the fact remains that any blog dedicated to military justice is alright in my book.
    Also, while I do think that the majority of posts on CAAFLog are from the defense bar,  I don’t find that ideologically objectionable either.  It’s about free speech, and I will say that there are times when postings from my defense colleagues have altered my thinking on a case (at least in part), and I hope that I’ve done the same for them . . . even if I do now proudly wear the title of “Lord Vader”
    So keep it up, and thanks for CAAFLog.

  5. k fischer says:

    Former SJA, 
    ArmyTC,  I prefer, “I got on that good kush so the Elders wouldn’t go running off with Terry, ya’ know, and now I can’t kick it.” Because dude, I totally believe someone physically can get addicted to weed…….
    The Yankees are no less corrupt or villainous than your team if you are a White Sox fan.  However, considering your hatred of the Yankees, I would bet you are a Red Sox fan and the team of Yaz and Ted Williams is way above board.
    As far as villainous TC’s go, I don’t take cases where I feel I can’t offer a value added.  If the G’s case sounds airtight, then I am extremely reluctant to take the case.  I advise potential clients who have been read their charges to meet with their TDS counsel and see if they get the warm and fuzzies from them.  If they feel comfortable with them, then I tell them to save their money.  If TDS starts talking about Chapter 10’s, plea offers, or asks, “Are you guilty?” within the first 5 minutes of their first appointment, then I tell them to call me back if I think that’s bad advice based on our conversation.  
    But, if the TC, the COJ, or the SJA has a bad reputation, then I will jump on board no matter what the facts are because they make my life a little easier by creating appellate issues.  I kind of like it when the Government pushes the envelope and misbehaves a little bit or a lot.  It could turn what appears to be a slam dunk conviction into a dismissal after the arraignment, and turn it into a GOMOR.  Just ask HQE Tullius……
    Thankfully, the vast, vast majority of TC, COJ’s, and SJA’s understand they wear the white hat, and justice includes ensuring an innocent man does not go to Leavenworth.  

  6. Zeke says:

    @ AF JAG – 

     even if I do now proudly wear the title of “Lord Vader”

    Dude, I am seriously jealous of that title.  
    @ Zach – 
    Thanks for what you do on this site.  Your case accounts are well-written and accurate.  Your opinions are always clearly delineated as such, and they are rational, even when I disagree.  The commentary on each piece tends to be lively, as well.  With perspectives offered, zealously, on both sides.  The articles you post and the comments folks leave have allowed me to learn new viewpoints and question old ones.  I think that is important to our military system of justice.  The UCMJ is not an ancient code, even if some of it might be inspired from ancient practices.  It is in many ways an experiment, and one which will continue to rapidly evolve as we try to make it fit the needs of our society, military and civil.  This blog allows folks to debate the ways in which that should occur.  The value of that, I think, can’t be underestimated.

  7. Andrew Williams says:

    Amen.  Thank you for providing this important public service.

  8. Zachary D Spilman says:

    An analogous conversation, I think, courtesy of The Volokh Conspiracy: Judges weigh in on credibility findings for law enforcement.

  9. af_dc says:

    I love this site. I read it when I was TC and live and die by it as DC. It is indispensable and has a direct and positive effect on my practice. It makes me think harder about the decisions my clients and I make as an attorney.
    And I agree that while this site’s commenters skew defense, which is only to be expected from a blog that is primarily about military appellate law, the blog posts are remarkably even-handed and neutral.

  10. Dew_Process says:

    — Let us not forget that there are also judges, trial and appellate, that read this blog and its comments [and some that should, but don’t].  Anyone who has been in the arena of criminal litigation for any length of time, understands that it is that small percentage of prosecutors who seek convictions at any cost; of judges who “look the other way” or twist clear facts to sustain a questionable conviction; or of defense counsel who are unprepared and indifferent to their professional duties and responsibilities who generate the vast majority of appellate and post-trial litigation, that we read about and discuss here.  This is a forum to share ideas, to float ideas, and yes even to criticize ideas within the jurisprudence of military justice.
    “BC” [“before computers] some of us remember reading the weekly “Advance Sheets” – at least the good litigators on both sides of the aisle and MJ’s did. Now we have “alerts” and media such as CAAFlog to help with that function. but in the 38 years that I’ve been slogging around military courtrooms throughout the world, the vast majority of my JAG colleagues have been both honorable and professional, in spite of occasional bursts of emotion in the heat of a trial – and we remain friends.  There are those who love the challenges prosecution duty brings; there are others that prefer defending for similar reasons; and there are some that don’t care as long as they’re in the arena of litigation.
    Topics on this blog dotend to – at times – focus on the defense. After all, our Liege who created and nurtured CAAFlog was (and still is) the consummate defense and appellate defense counsel, but who tried to remain neutral so as to encourage the exchange of ideas and commentary here.  But, the pendulum does at times swing, for those who’ve been around here a tad, know that defense counsel have not been immune to criticism here (albeit they tend to be civilians in over their heads).  You post here, you’re fair game and by-and-large everyone does so in a respectful / responsible manner.
    Those of us habitually on the “defense bar” side, know and accept the fact that statistically, we (and our clients) “lose” a lot. That’s a given in what we do and generally we accept that with a caveat:  that is, that it is a “fair” fight.  As of late, “fairness” is traveling away at warp speed from justice in many cases, and with the irrational stimuli for “reform” coming out of well-meaning, but uninformed victims’ advocates, Congress Critters, etc., the underlying purpose of a trial / court-martial to have a fundamentally fair process for adjudicating guilty becomes an empty premise, if not promise.
    We can pontificate as to the causes for such and maybe even reach certain consensuses. But, without this blog many of us would remain ignorant of other ideas, other perceptions, other analytics, other procedures, etc.  And that I suspect is the opiate that continues to draw us back here each day.  For those of you who have not had the privilege of standing between a client and the Sword of Justice, I offer a quote from a now deceased British Barrister / defense counsel, who when asked about his defence [British spelling] work, famously replied:

    I suppose my job has been to prevent the huge, sometimes ill-directed legal machine [from] totally flattening my client, so perhaps my concern has been less with legal principles than with ways of escape.

    J. Mortimer, Rumpole On Trial, at 79 (Penguin Books, 1992).

  11. RKincaid3 says:

    Intelligent conversation about these cases requires looking beyond the bad things that the people in them did (or at least were convicted of doing) and focusing on the system that is punishing them and the kind of justice that it provides.

    Amen, ZS.  Also, to the following statement:

    I’m interested in the law, I want to get it right…[a]nd I suspect that the other contributors, and the vast majority of our readers, feel exactly the same way.

  12. JusticeSometimesEqualsAConvictionToo says:

    “When you lose 90% of the cases.”  Total red herring argument.
    If that’s the case, why do I sit through hours of defense sentencing cases.  You have plenty to “gain” in those cases and can “win” by beating the deal, etc.  Or, you can “win” by taking a guilty plea and getting your client discharged prior to all his other bad deeds being discovered.  Sure, about 90% result in convictions, but that does not mean there isn’t room for gain (or to “win”) in other cases.  Your point is well taken, but off topic.

  13. af_dc says:

    JSEACT, have you ever been a defense counsel? Because most of us feel that a guilty plea with a great PTA and a great sentence is still a loss. Often it still feels like a loss to the client. Sure, maybe we really “lost” when our client decided to commit the alleged offense, or (more often) maybe we “lost” when the client decided to spill his guts to his first sergeant, then CID/OSI, after being duly advised of his rights. But it doesn’t change the fact that we’re losing in court. Just because a case is apparently unwinnable doesn’t mean that it doesn’t feel like a loss when the judge says the word “guilty”.
    In any case, ZS’s point was that this blog focuses on a relatively small number of cases where there were screw-ups, usually by the government.