It’s time again for our annual tradition of end-of-term number crunching. Like last year, this year’s stats are in a single post.
Part I: Overview
CAAF heard oral argument in 42 cases in the 2016 term, resulting in 39 authored opinions of the court, 2 per curiam opinions, and 1 summary disposition. Summaries of each case, with links to CAAFlog case pages, are available on the October 2016 Term page.
These arguments constituted the busiest oral argument calendar at the court since the 2011 term, when the court heard 47 arguments. It’s a stark contrast to last term’s mere 28 oral arguments, which I believe was the smallest number of arguments in a CAAF term since the court was established (as the CMA) in 1951.
CAAF was also very busy with summary dispositions. By my count the court issued summary dispositions in 220 cases – a number that is about 10 times more than average. My notes show that 175 of these 220 summary dispositions involved challenges to the composition of the CCA panels that reviewed the cases based on the fact that at least one judge was also a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR). The Supreme Court granted certiorari of this question in the final days of the term; the first such grant in a military case in nearly a decade.
The other summary dispositions include more than two-dozen trailer cases and a summary reversal and remand for further consideration in a case heard at oral argument (United States v. Brantley, 76 M.J. __ (C.A.A.F. Jun. 1, 2017) (CAAFlog case page)).
Of the 39 authored opinions of the court:
- Judge Ryan wrote 9.
Judge Ohlson wrote 9.
Judge Sparks wrote 8.
- Chief Judge Stucky wrote 7.
- Senior Judge Erdmann wrote 6.
Senior Judge Erdmann earned senior status (and Chief Judge Stucky became Chief) when his 15-year appointment expired on July 31, 2017. I will refer to them by their current titles in these stats. CAAF begins the term with the seat still vacant, however the President recently announced his nominee.
The 42 cases heard at oral argument break down by service as follows:
Air Force: 13 (31%).
Army: 18 (43%).
Coast Guard: 4 (9.5%).
Marine Corps: 4 (9.5%).
Navy: 3 (7%).
I score the Government divisions as the winner in 20 of these 42 cases, the defense as the winner in 21 cases, and 1 case with no winner (Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page), in which CAAF concluded that it has no jurisdiction over an Article 6b petition).
Part II: Dissents
Of the 39 authored opinions of the term, 24 were unanimous (no separate opinions). The Government divisions prevailed in exactly half (12) of these. The two per curiam opinions also split, with the Government division winning in one, and the defense winning in the other.
An additional 3 cases involved only separate concurring opinions, for a total of 27 authored opinions with no dissents (69% of the total of 39 authored opinions). The Government divisions prevailed in 16 out of these 27 (59%) .
The other 12 authored decisions involved a total of 14 separate dissenting opinions. Broken down by judge:
- Chief Judge Stucky dissented 5 times and wrote 5 dissenting opinions.
- Judge Ryan dissented 2 times and wrote 2 dissenting opinions.
- Judge Ohlson dissented 2 time and wrote 2 dissenting opinions.
- Judge Sparks dissented 2 times and wrote 2 dissenting opinions.
- Senior Judge Erdmann dissented 3 times and wrote 2 dissenting opinions.
Eight opinions drew just 1 dissenting vote (Bartee, Claxton, Haverty, Lopez, Mitchell, Nieto, Ramos, Sager, and Sewell) and three cases drew 2 (Boyce, Forrester, and Randolph). In all but one of these every judge who dissented authored a separate dissenting opinion. The exception was Forrester, in which Senior Judge Erdmann only joined Judge Ohlson’s dissenting opinion. Of the two other cases with more than one dissenting judge: In Boyce, Chief Judge Stucky and Judge Ryan dissented, each writing separately; in Randolph, Senior Judge Erdmann and Judge Sparks dissented, each writing separately but with Judge Sparks also joining Senior Judge Erdmann’s dissent.
These dissents generally favored the Government divisions, as follows:
- Chief Judge Stucky dissented 5 times, siding with the Government division in all 5.
- Judge Ryan dissented 2 times, siding with the Government division in both.
- Judge Ohlson dissented 2 times, siding with the defense in both.
- Judge Sparks dissented 2 times, siding with the Government division in 1 (the other was Randolph).
- Senior Judge Erdmann dissented 3 times, siding with the defense in 2 (the third was Randolph).
Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents. In order of least-dissenters to most:
Judge Sparks wrote for the court in 8 cases, drawing 1 dissent (and 2 concurring opinions).
Judge Ryan wrote for the court in 9 cases, of which 2 drew dissents.
Senior Judge Erdmann wrote for the court in 6 cases, of which 2 drew dissents.
Judge Ohlson wrote for the court in 9 cases, of which 3 drew dissents.
Chief Judge Stucky wrote for the court in 7 cases, of which 4 drew dissents. If there’s an award for dissents, Chief Judge Stucky won it handily as he both dissented the most and drew the most dissents.
Part III: Individual Judge Statistics
Chief Judge Stucky wrote a total of 14 opinions this term: 7 opinions of the court, 2 concurring opinions, and 5 dissenting opinions. He was with the majority in 34 out of 39 cases with authored opinions (87%). Of these, but excluding Randolph, Chief Judge Stucky voted for the Government division in 24 out of 38 cases (63%), dissenting from none of the Government divisions’ victories.
Judge Ryan wrote a total of 13 opinions this term: 9 opinions of the court, 2 concurring opinions, and 2 dissenting opinions. She was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Ryan voted for the Government division in 21 out of 38 cases (55%), dissenting from none of the Government divisions’ victories.
Judge Ohlson wrote a total of 11 opinions this term: 9 opinions of the court, zero concurring opinions, and 2 dissenting opinions. He was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Ohlson voted for the Government division in 17 out of 38 cases (45%), dissenting from two of the Government divisions’ victories.
Judge Sparks wrote a total of 11 opinions this term: 8 opinions of the court, 1 concurring opinion, and 2 dissenting opinions. He was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Sparks voted for the Government division in 20 out of 38 cases (53%), dissenting from none of the Government divisions’ victories.
Senior Judge Erdmann wrote a total of 9 opinions this term: 6 opinions of the court, zero concurring opinions, and 3 dissenting opinions. He was with the majority in 35 out of 39 cases (90%) (he joined Judge Ohlson’s dissent in Forrester). Of these, but excluding Randolph, Senior Judge Erdmann voted for the Government division in 16 out of 38 cases (42%), dissenting from three of the Government divisions’ victories.
Part IV: Civilian Counsel and the Appellate Defense Divisions
Civilian defense counsel argued 5 of the 42 cases (12%) argued at CAAF this term: Ahern, Boyce, Gomez, Reese, and Richards. Of these, the defense won in 2 (40%).
In cases argued by military appellate defense counsel, the defense won in 19 out of 37 (51%) (this includes Randolph, which I consider to be a loss for both sides).
On the Government division side one civilian attorney argued and won one case (Shea).
Of the 19 cases where military defense counsel argued and won:
- 3 were Air Force cases (Bowen, Carter, and Fetrow)
- 12 were Army cases (Brantley, Commisso, Gurczynski, Haverty, Hendrix, Hukill, Lopez, Mitchell, Nieto, Swift, Tucker, and Wilson)
- 2 were Navy cases (Darnall and Sager)
- 1 was a Marine Corps case (Chikaka).
- 1 was a Coast Guard case (Ramos).
So the oral argument success rates for military defense counsel at each of the four appellate defense divisions, from best to worst, was:
- Army Appellate Defense: 12 out of 18 (66%).
- Navy-Marine Corps Appellate Defense: 3 out of 7 (43%).
- Coast Guard Appellate Defense: 1 out of 4 (25%).
- Air Force Appellate Defense: 3 out of 13 (23%).
Part V: Certified and Specified Issues
CAAF heard oral argument in 4 cases with issues certified by a Judge Advocate General: Carter, Fetrow, Gurczynski, and Mitchell. Of these 4 cases, 2 were from the Army and 2 were from the Air Force.
The Government division lost in every one (three by unanimous decision, one with a lone dissent).
CAAF specified issues for oral argument in 8 cases (Bowen, Boyce, Haverty, Lopez, Ramos, Randolph v. HV, Gurczynski, and Swift). These specified issues were dispositive in every case except for Swift (where CAAF did not reach the specified question of legal sufficiency).
CAAF also decided 4 cases with Grostefon issues this term (Erikson, Nieto, Sewell, and Wilson). Of these, the defense won in 2.
Part VI: The Courts of Criminal Appeals
Of the 42 cases heard at oral argument in the 2016 term, the CCAs were represented as follows:
13 (31%) were from the Air Force CCA.
- 18 (43%) were from the Army CCA.
- 4 (9.5%) were from the Coast Guard CCA.
- 7 (16.5%) were from the Navy-Marine Corps CCA.
- The Air Force CCA was reversed in 3 out of 13 cases (23%) (includes Dockery).
- The Army CCA was reversed in 10 out of 18 cases (56%).
- The Coast Guard CCA was reversed in 2 out of 4 cases (50%).
- The Navy-Marine Corps CCA was reversed in 3 out of 7 cases (43%).
CAAF also reversed 20 CCA decisions by summary disposition. Of these 20 summary reversals:
- 11 were from the Army CCA (9 of which were Hukill trailers).
- 1 was from the Navy-Marine Corps CCA (Hills trailer).
These numbers make the Army CCA the most-reversed court of the term. An interesting factor, however, is that all of CAAF’s reversals of the Army CCA were in cases where the CCA denied relief to an individual appellant. Both cases certified by the Judge Advocate General of the Army, in contrast, resulted in CAAF affirming the CCA’s decision. Both of those cases were prosecution interlocutory appeals (Mitchell and Gurczynski).
Part VII: Extraordinary Relief
CAAF considered 18 petitions for extraordinary relief during the 2016 term, with
one two remaining undecided at the end of the term (a writ-appeal on a coram nobis petition in the Gray capital case, discussed here) (update: and a writ-appeal in an Air Force case, Hassett, that appears to be still pending automatic review at the CCA). The pending petition in Gray is functionally a duplicate of a prior petition (which CAAF allowed to be replaced with the most-recent filing).
The other 15 petitions include 5 writ-appeals, 1 habeas petition, 5 petitions for writs of mandamus, 1 petition for a writ of prohibition, and 3 original writ petitions.
CAAF denied them all.
Some notable petitions include Randolph (the court heard oral argument and concluded that it lacks jurisdiction), two petitions in Labella (the first untimely, the second denied), two in the Bergdahl case (both denied – losses number 6 and 7 for Bergdahl), and a petition in Hennis (denied without prejudice).
Part VIII: A Preview of the 2017 Term
CAAF begins the 2017 term with a relatively full docket.
32 33 cases will be carried over from the 2016 term, the first of these cases to be granted review was Acevedo, granted on April 14, 2017 (discussed here).
These 32 cases include one capital appeal (Hennis), in which CAAF will hear oral argument on a motion to compel funding (on the first oral argument date of the term).
There are also 2 cases in which CAAF granted review but ordered no briefs: Luna and Moore (a Hills trailer).
Speaking of Hills (our #3 Military Justice Story of 2016), for the third term in a row CAAF will address the improper use of charged offenses as proof of an accused’s propensity to commit the same charged offenses. The court will review the Army CCA’s decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (CAAFlog case page), that dissected Hills and identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes. Guardado will be the second case argued this term.
Other recent grants can be reviewed in our CAAF Grants category.
CAAF’s schedule includes 30 oral argument dates for this coming term – a larger than average number and an increase over the 27 scheduled dates at the beginning of last term (of which only 23 were actually used). The court typically hears two oral arguments per day, suggesting that it anticipates hearing upwards of 60 oral arguments this coming term. That would be the most oral arguments since FY08, as shown by this chart from CAAF’s FY16 Annual Report:As always, we will track and analyze the court’s activity as the term develops.