It’s time again for our annual tradition of end-of-term number crunching.

 

Part I: Overview

CAAF heard oral argument in 36 cases in the 2017 term, resulting in 34 authored opinions of the court and 2 summary dispositions. The court also issued one per curiam decision without hearing oral argument (dismissing the writ-appeal petition in Gray). Summaries of each case, with links to CAAFlog case pages, are on the October 2017 Term page.

That number of oral arguments is about average for the court over the past decade. It’s a significant decrease from the 42 arguments heard last term, but a significant increase from the 28 arguments heard the term before.

CAAF also had a very moderate summary disposition docket. By my count the court issued summary dispositions in 32 cases – a number that is about average (and includes the two summary dispositions in argued cases: Gonzalez-Gomez and Burris).

Of the 34 authored opinions of the court:

  • Chief Judge Stucky wrote 9.
  • Judge Ohlson wrote 9.
  • Judge Ryan wrote 7.
  • Judge Sparks wrote 6.
  • Judge Maggs wrote 3.

Judge Maggs joined the court in the middle of the term, allowing him to participate in only 11 of the 34 authored opinions. Senior Judges Effron, Cox, and Erdmann all participated in cases heard this term prior to Judge Maggs joining the court. None authored a lead opinion, but Senior Judge Effron authored a concurring opinion in 1 case (Robinson (AR)) and a dissenting opinion in 1 case (Eppes), and Senior Judge Cox authored a dissenting opinion in 1 case (Jacobsen).

The 36 cases heard at oral argument break down by service as follows:

  • Air Force: 14 (39%).
  • Army: 16 (44%).
  • Coast Guard: 3 (8%).
  • Navy: 2 (6%).
  • Marine Corps: 1 (3%).

I score the Government divisions as the winner in 21 of the 36 cases heard at oral argument. Those wins, however, include Bailey (where CAAF remanded for a new review of the sentence), Simpson (where CAAF answered the certified question in the negative but found other reasons to affirm the CCA’s decision in part), and Hennis (where CAAF heard oral argument on – and found it lacks authority to grant – a defense motion for resources).

 

Part II: Dissents

Of the 34 authored opinions of the term, 22 were unanimous (no separate opinions). The Government divisions prevailed in 14 (64%) of those 22 unanimous opinions.

An additional 3 cases involved only separate concurring opinions, for a total of 25 authored opinions with no dissents (74% of the total of 34 authored opinions). The Government divisions prevailed in 16 (64%) of those 25.

The other 9 authored decisions produced a total of 9 separate dissenting opinions. Broken down by judge:

  • Chief Judge Stucky dissented 3 times and wrote 3 dissenting opinions.
  • Judge Ryan dissented 2 times and wrote 1 dissenting opinion.
  • Judge Ohlson dissented 3 times and wrote 3 dissenting opinions.
  • Judge Sparks dissented 1 time but did not write separately.
  • Senior Judge Effron dissented 1 time and wrote 1 dissenting opinion.
  • Senior Judge Cox dissented 1 time and wrote 1 dissenting opinion.

6 cases drew just 1 dissenting vote (Jacobsen, Harpole, Robinson (AF), Eppes, Barker, and Hardy), and 3 cases drew 2 dissenting votes (Short, Jerkins, and Barry). The dissenting opinion in Barry, however, is a little unusual. Authored by Judge Ryan and joined by Judge Maggs, the opinion is styled as a dissent but agrees with the majority that the conviction must be reversed. Accordingly, it gets special attention in the remainder of these stats.

The dissenters slightly favored the Government divisions. There were a total of 11 dissenting votes in the 9 cases with dissents. The Government divisions got 6 of those 11 votes, as follows:

  • Chief Judge Stucky dissented 3 times, siding with the Government division in 2 of the 3.
  • Judge Ryan dissented 2 times, siding with the defense in both.
  • Judge Ohlson dissented 3 times, siding with the Government division in 2 of the 3.
  • Judge Sparks dissented 1 time, siding with the Government division.
  • Senior Judge Effron dissented 1 time, siding with the Government division.
  • Senior Judge Cox dissented 1 time, siding with the defense.

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 6 cases, drawing 1 dissent (and 1 concurring opinion).
  • Judge Maggs wrote for the court in 3 cases, drawing 1 dissent (and 2 concurring opinions).
  • Judge Ryan wrote for the court in 7 cases, drawing 2 dissents.
  • Judge Ohlson wrote for the court in 9 cases, drawing 2 dissents (and 2 concurring opinions)
  • Chief Judge Stucky wrote for the court in 9 cases, drawing 3 dissents.

If there’s an award for the most dissents, Chief Judge Stucky wins it for the second year in a row. But two years ago (in the 2015 Term) then-Judge Stucky dissented the most but was the least likely to draw dissents when he wrote for the court.

 

Part III: Individual Judge Statistics

Chief Judge Stucky wrote a total of 13 opinions this term: 9 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. He was with the majority in 31 out of 34 cases with authored opinions (91%). Chief Judge Stucky voted for the Government division in 21 (62%) of those 34 cases, and dissented in 2 of the Government divisions’ 21 victories. 1 of those dissents, however, was in Barker, where Judge Stucky agreed that the Government division should win but he dissented because he would find the issue waived (he also dissented in Harpole, where the defense won).

Judge Ryan wrote a total of 9 opinions this term: 7 opinions of the court, 1 concurring opinion, and 1 dissenting opinion. She was with the majority in 33 (97%) out of 34 cases with authored opinions (including Barry, even though she dissented, because of the relief she would have granted). Judge Ryan voted for the Government division in 22 (65%) of those 34 cases, and dissented in none of the Government divisions’ 21 victories (her only dissent was in Jerkinswhere she disagreed with the relief the court granted to the defense).

Judge Ohlson wrote a total of 13 opinions this term: 9 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. He was with the majority in 31 (91%) out of 34 cases with authored opinions. Judge Ohlson voted for the Government division in 20 (59%) of those 34 cases, and dissented in 2 of the Government divisions’ 21 victories (Hardy and Short) (he also dissented from the defense victory in Jerkins).

Judge Sparks wrote a total of 6 opinions this term: 6 opinions of the court, 0 concurring opinions, and 0 dissenting opinions. He was with the majority in 32 (97%) out of 33 cases with authored opinions (he recused himself from Barry). Judge Sparks voted for the Government division in 20 (61%) of those 33 cases, dissenting in 1 of the Government divisions’ 21 victories (Short).

Judge Maggs participated in only 11 of the 34 cases with authored opinions. He wrote a total of 4 opinions this term: 3 opinions of the court, 1 concurring opinion, and 0 dissenting opinions. He was with the majority in all 11 cases (including Barry, even though he joined Judge Ryan’s dissenting opinion, because of the relief he would have granted). Judge Maggs voted for the Government division in 7 (64%) of those 11 cases, dissenting from none of the Government divisions’ victories in which he participated.

 

Part IV: Civilian Counsel and the Appellate Defense Divisions

Civilian defense counsel argued 11 of the 36 cases (31%) argued at CAAF this term: (Guardado, Riesbeck, Honea, Mangahas, Jerkins, Condon, Carpenter, EppesKelly, Hardy, and Burris). That includes Mr. Mizer’s argument in Honea, even though Mr. Mizer argued the case in his official capacity as a civilian employee of the Air Force Defense Appellate Division.

Of those 11 arguments by civilian counsel, the defense won in 7 (64%).

In cases argued by military appellate defense counsel, the defense won in 8 out of 25 (32%).

On the Government division side one civilian attorney argued and won one case (Bailey).

Of the 8 cases where military defense counsel argued and won:

So the oral argument success rates for military defense counsel at each of the four appellate defense divisions, from best to worst, was:

  • Coast Guard Appellate Defense: 1 out of 2 (50%).
  • Army Appellate Defense: 4 out of 12 (33%).
  • Navy-Marine Corps Appellate Defense: 1 out of 3 (33%).
  • Air Force Appellate Defense: 2 out of 8 (25%).

 

Part V: Certified and Specified Issues

CAAF heard oral argument in 3 cases with issues certified by a Judge Advocate General: JacobsenKatso, and Simpson. Of those 3 cases, 2 were from the Army and 1 was from the Air Force.

The Government division won two out of the three.

CAAF also issued summary dispositions in two cases with certified issues: Gould (Army) and Hale (Marine Corps). In both cases CAAF rejected the certified issues.

CAAF specified issues for oral argument in 3 cases: Condon, Robinson (AR), and Riesbeck. The specified issues were dispositive in all three cases.

 

Part VI: The Courts of Criminal Appeals

Of the 36 cases heard at oral argument in the 2017 term, the CCAs were represented as follows:

  • 14 (39%) were from the Air Force CCA.
  • 16 (44%) were from the Army CCA.
  • 3 (8%) were from the Coast Guard CCA.
  • 3 (8%) were from the Navy-Marine Corps CCA.

One of those 36 arguments, however, was the motion in Hennis that didn’t involve direct review of a CCA’s decision.

Of the 35 oral arguments involving review of a CCA’s decision:

  • The Air Force CCA was reversed in 5 out of 14 cases (36%).
  • The Army CCA was reversed in 8 out of 15 cases (53%) (includes a partial reversal in Simpson).
  • The Coast Guard CCA was reversed in 3 out of 3 cases (100%) (includes partial reversals in Harpole and Bailey).
  • The Navy-Marine Corps CCA was reversed in 1 out of 3 cases (33%).

CAAF also reversed 11 CCA decisions by summary disposition (including 1 partial reversal in Tinsley). Of those 11 summary reversals:

  • 5 were from the Air Force CCA (3 Hills trailers and 1 Commisso trailer).
  • 5 were from the Army CCA (3 Hills trailers and 1 Burris trailer).
  • 1 was from the Navy-Marine Corps CCA (Tinsley).

Note: I scored the following summary dispositions as reversing a CCA: Tinsley, Robertson, Rice, Campbell, Frank, Brown, Thompson, Moynihan, Hoffmann, Marcum, and Hughes. Perhaps the list could be longer. One case not on my list is McGinn, where CAAF reversed the Army CCA’s finding of waiver but otherwise affirmed the CCA’s decision. Another case not on my list is Preston, where CAAF reversed an Air Force CCA ruling on a motion for reconsideration filed in connection with a petition for a new trial. I had to draw the line somewhere.

 

Part VII: Extraordinary Relief

CAAF considered 18 petitions for extraordinary relief during the 2017 term. All were denied in one form or another.

Two of the 18 are particularly noteworthy: Gray and Roberts.

In Gray, CAAF issued a per curiam opinion dismissing a writ-appeal with prejudice. United States v. Gray, 77 M.J. 5 (C.A.A.F. Nov. 13, 2017) (per curiam) (CAAFlog case page). I interpreted that decision (in posts here and here) as casting doubt on the continued viability of the Supreme Court’s holding in United States v. Denedo, 556 U.S. 904, 912-913 (2009), that the military appellate courts have jurisdiction to conduct collateral review of courts-martial. Gray then sought certiorari, and the Solicitor General filed a brief opposing certiorari but making this concession:

The government agrees with petitioner that, under this Court’s decision in United States v. Denedo, 556 U.S. 904 (2009), the military courts have subject-matter jurisdiction to entertain such requests for coram nobis relief and that the CAAF erred in concluding othe[r]wise.

Br. at 12. SCOTUS denied the petition but the SG’s concession (probably) keeps Denedo alive.

In Roberts, CAAF dismissed a writ-appeal on the basis that it was really a late petition for a new trial:

No. 18-0177/AR. Rob W. Roberts, Appellant v. United States, Appellee. CCA20180005. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby dismissed for lack of jurisdiction.*

* Although styled as a petition for extraordinary relief in the nature of a writ of error coram nobis, this is a request for a new trial in which the statutory period for filing such claims has expired.

CAAF’s decision affirmed the similar action of the Army CCA (analyzed here).

 

Part VIII: A Preview of the 2018 Term

CAAF begins the 2018 term with 19 cases on its docket. Those include one capital appeal (Hennis) that was docketed last year and in which CAAF’s review is mandatory. It also includes one case remanded by the Supreme Court (Briggs), and two certified cases (Cooper and Perkins).

The court already heard oral argument in two cases in the 2018 term: Eugene and Criswell. The arguments were heard before the official start of the term as part of CAAF’s Project Outreach.

Other notable cases include CAAF’s grant of review (with no briefing ordered) in a Navy case (Greening) that involves successive prosecutions and the separate sovereigns doctrine. The Supreme Court is reconsidering the doctrine in Gamble v. United States, No. 17-646 (link to docket page). The doctrine is also at issue in Hennis.

CAAF also granted review in another Navy case (Forbes) where the appellant pleaded guilty to sexual assault by causing bodily harm for failing to inform his sexual partners of his HIV-positive status. That case might cause CAAF to reconsider its ultimate holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015).

And the long running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq, will be reviewed by CAAF for a third time.

Also returning to CAAF is Tucker, which questions whether negligence is a sufficient mens rea for a violation of Article 134.

Other recent grants can be reviewed in our CAAF Grants category.

CAAF’s schedule includes 24 oral argument dates for the 2018 term – a somewhat average number that is fewer than the 30 scheduled argument days for the 2017 term (of which only 19 were used) and the 27 scheduled argument days in the  2016 term (of which only 23 were used). CAAF typically hears two oral arguments per day, suggesting that it anticipates hearing about 45 oral arguments in the 2018 term. That’s consistent with the court’s oral argument workload over the past decade, as shown by this chart from CAAF’s FY17 Annual Report:

As always, we will track and analyze the court’s activity as the term develops.

8 Responses to “2017 Term End o’ Term Stats”

  1. John Marshall says:

    I’ve always questioned, and continue to wonder, what utility is there in counting civilian employees of the military appellate divisions as “civilian counsel.”  Isn’t the purpose of this statistic to indicate whether the accused is better off with a private civilian counsel, as opposed to going with the military appellate division?  Assuming the civilian employee of a military appellate division is one of the division’s more senior attorneys, doesn’t removing that employee from the division’s “win” stats unfairly devalue the quality of the division?  
    This statistic is already suspect because most military appellate divisions continue to leave a uniformed attorney assigned to a case even when there is a civilian counsel retained by the accused, but removing a senior civilian employee from the military divisions seems to further skew the number in favor of “civilian counsel,” thus inflating this statistic in a somewhat misleading manner.

  2. Zachary D Spilman says:

    That’s a perfectly fair observation, John Marshall, except for your supposition that “the purpose of this statistic [is] to indicate whether the accused is better off with a private civilian counsel, as opposed to going with the military appellate division.” That is absolutely not the purpose, nor should anyone make such a choice based on statistics (because every case is different). 

    The civilian counsel end ‘o term stat dates back to the 2009 term, when it was limited to retained civilian counsel (and so didn’t include civilian DoD employees). I don’t know if using that limitation produces a better statistic, but I do think there’s a meaningful difference between uniformed appellate counsel (who are not necessarily practicing their preferred kind of law) and civilian appellate counsel (who presumably chose to be appellate litigators). So I will continue to include DoD employees as civilian counsel (while also continuing to identify them as DoD employees, as I did in the post above). 

    Ultimately, however, it’s important to remember that there are three kinds of lies in the world: lies, damn lies, and statistics.

  3. John Marshall says:

    That’s a perfectly fair response, but I suspect most people reading these stats aren’t seeking to guess whether people  “practicing their preferred kind of law” tend to do better than people who are simply assigned to a field they don’t prefer.  I don’t really think separating out civilian gov’t employees at the divisions helps much with identifying a difference between specialists and novices, because some of the uniformed attorneys could come into the division with significant experience, either in clerkships or before gov’t service.  There’s really no way (that I know of) to capture that.  So, the statistic seems most helpful when it is comparing the success of the “divisions” which should include their specialists (even of civilian gov’t employees) versus private retained counsel.  
    It may not be the intent to compare retained counsel to divisions, thus facilitating a general judgment about the effectiveness of the appellate divisions (and, perhaps, the advisability of an appellant hiring retained counsel), but that seems to be a much more useful statistic than making a generalized judgment about whether specialists tend to do better (as they almost undoubtedly do over time, see, e.g., Malcom Gladwell’s “Outlier,” etc.).
    Just a thought.  Thanks for compiling the stats, it is a huge service, and I appreciate it.

  4. DawG says:

    Another kudos and thanks for the annual stats report.  Regarding the civilian counsel success, there is another problem in trying to use that as a way to judge whether an accused is better off with civilian counsel:  selection bias (at least I think that’s what I’m about to describe; I didn’t do well in stats class).  Civilian appellate counsel are (presumably) more likely to take a case that has a chance of success whereas the government counsel are stuck with every case that comes across their desk.  A more meaningful statistic (but one that is impossible to calculate) would include the number of times that civilian counsel declined to take a case and left it for the government to handle.  To be sure, the number Zach prepares is a good measure of relative success.  But, it doesn’t consider the fact that the government doesn’t get to cherry-pick its cases.  Just my 2 cents.

  5. stewie says:

    I want a breakdown of military counsel for whom appellate law wasn’t their first choice, but who are fairly happy doing it because hey, could be worse, and DC area is a nice tour vice those who really really wanted to be doing NSL and got stuck doing appellate law and are counting the days until their PCS versus the crim law nerds who are taking full advantage of the go ahead and specialize era we are now in.
     
     

  6. Fisch says:

    Stewie,
     
    You said: 
     

    I want a breakdown of military counsel for whom appellate law wasn’t their first choice, but who are fairly happy doing it because hey, could be worse, and DC area is a nice tour vice those who really really wanted to be doing NSL and got stuck doing appellate law and are counting the days until their PCS versus the crim law nerds who are taking full advantage of the go ahead and specialize era we are now in.

     
    You are in luck!  STEWlog.com is available at godaddy.com for $2.99.  I’m here all night folks.  Tip your busboys!

  7. David Sheldon says:

    Barry was Navy, not Marine.

  8. Zachary D Spilman says:

    Thank you David Sheldon. I’ve corrected the stats.

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