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 Jerkins, where 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, Eppes, Kelly, 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:
- 2 were Air Force cases (Mooney and Pugh)
- 4 were Army cases (Williams, Jacobsen, Christensen, and Gonzalez-Gomez)
- 1 was a Navy Corps case (Barry).
- 1 was a Coast Guard case (Harpole).
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
The Government division won two out of the three.
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 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).
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).
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: