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

 

Part I: Overview

CAAF heard oral argument in 32 cases in the 2018 term, resulting in 30 authored opinions of the court, 1 per curiam opinion, and 1 summary disposition. The court also issued 1 per curiam decision without hearing oral argument (or even granting review), in McGriff. Summaries of each case, with links to CAAFlog case pages, are on the October 2018 Term page.

That number of oral arguments is well below average for the court over the prior ten years (average of 38.3 arguments per term). It’s also fewer than the 36 arguments heard last term, and much less than the 42 arguments heard the term before.

CAAF had a moderate summary disposition docket. By my count the court issued summary dispositions in 36 cases; a number that is about average (and includes the summary disposition of the writ petition in Hasan, which was heard at oral argument). That 36, however, includes the denial opinion in McGriff (while denials are not normally included in my count of summary dispositions).

Of the 30 authored opinions of the court:

  • Chief Judge Stucky wrote 7.
  • Judge Ryan wrote 6.
  • Judge Sparks wrote 6.
  • Judge Maggs wrote 6.
  • Judge Ohlson wrote 5.

The 32 cases heard at oral argument break down by service as follows:

  • Army: 20 (63%).
  • Air Force: 7 (22%).
  • Navy: 2 (6%).
  • Marine Corps: 2 (6%).
  • Coast Guard: 1 (3%).

I score the Government divisions as the winner in a whopping 25 of the 32 (78%) cases heard at oral argument. That’s by far the most lopsided Government win rate since we started calling it in the 2010 Term Stats; the next-best term for the Government divisions was the 2011 Term, at 23 of the 35 (66%) cases heard at oral argument.

 

Part II: Dissents

Of the 30 authored opinions of the term, 18 were unanimous (no separate opinions). The Government divisions prevailed in 15 (83%) of those 18 unanimous opinions.

An additional 2 cases (Haynes and Lewis) involved only separate concurring opinions, for a total of 20 authored opinions with no dissents (67% of the total of 30 authored opinions). The Government divisions prevailed in 17 (85%) of those 20.

The other 10 authored decisions produced a total of 12 separate dissenting opinions. Broken down by judge:

  • Chief Judge Stucky dissented 2 times and wrote 1 dissenting opinion (this includes his dissent in Navarette).
  • Judge Ryan dissented 1 time and wrote 1 dissenting opinion.
  • Judge Ohlson dissented 5 times and wrote 5 dissenting opinions.
  • Judge Sparks dissented 3 times and wrote 2 dissenting opinions (this includes his partial dissent in Frost).
  • Judge Maggs dissented 3 times and wrote 3 dissenting opinions.

6 cases drew just 1 dissenting vote (Hale, Cooper, Perkins, Hyppolite, Navarette, and Stout), and 4 cases drew 2 dissenting votes (Criswell, Tovarchavez, Gleason, and Frost).

Overall, the dissenters were equally split between siding with the Government divisions and the defense; there were a total of 14 dissenting votes in the 10 cases with dissents and the Government divisions got 7 of those 14 votes, as follows:

  • Chief Judge Stucky dissented 2 times, siding with the Government division in 1 of the 2 dissents.
  • Judge Ryan dissented 1 time, siding with the Government division.
  • Judge Ohlson dissented 5 times, siding with the defense in all 5 dissents.
  • Judge Sparks dissented 3 times, siding with the Government division in 1 out of the 3 dissents.
  • Judge Maggs dissented 3 times, siding with the Government division in all 3 dissents.

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 Ryan wrote for the court in 6 cases, with dissent in 1 case.
  • Judge Ohlson wrote for the court in 5 cases, with dissent in 1 case.
  • Chief Judge Stucky wrote for the court in 7 cases, with dissent in 2 cases.
  • Judge Sparks wrote for the court in 6 cases, with dissent in 3 cases.
  • Judge Maggs wrote for the court in 6 cases, with dissent in 3 cases.

 

Part III: Individual Judge Statistics

Chief Judge Stucky wrote a total of 8 opinions this term: 7 opinions of the court and 1 dissenting opinion. A Government division won in all 7 opinions of the court that he authored. Chief Judge Stucky was with the majority in 29 (97%) of 30 cases with authored opinions. He voted for the Government division in 24 (80%) of those 30 cases, and he dissented from none of the Government divisions’ 23 victories in cases with authored opinions (I score his dissent in Navarette as siding with the defense).

Judge Ryan wrote a total of 9 opinions this term: 6 opinions of the court, 2 concurring opinions, and 1 dissenting opinion. A Government division won in 4 (67%) of the 6 opinions of the court that she authored. Judge Ryan was with the majority in 29 (97%) of 30 cases with authored opinions. She voted for the Government division in 24 (80%) of those 30 cases, and she dissented from none of the Government divisions’ 23 victories in cases with authored opinions.

Judge Ohlson wrote a total of 11 opinions this term: 5 opinions of the court, 1 concurring opinion, and 5 dissenting opinions. A Government division won in 2 (40%) of the 5 opinions of the court that he authored. Judge Ohlson was with the majority in 25 (83%) of 30 cases with authored opinions. He voted for the Government division in 18 (60%) of those 30 cases, and he dissented from 5 (22%) of the Government divisions’ 23 victories in cases with authored opinions.

Judge Sparks wrote a total of 8 opinions this term: 6 opinions of the court and 2 dissenting opinions. A Government division won in 4 (67%) of the 6 opinions of the court that he authored. Judge Sparks was with the majority in 27 (90%) of 30 cases with authored opinions. He voted for the Government division in 22 (73%) of those 30 cases, and he dissented from 2 (9%) of the Government divisions’ 23 victories in cases with authored opinions.

Judge Maggs wrote a total of 11 opinions this term: 6 opinions of the court, 2 concurring opinions, and 3 dissenting opinions. A Government division won in 5 (83%) of the 6 opinions of the court that he authored. Judge Maggs was with the majority in 25 (83%) out of 30 cases with authored opinions. He voted for the Government division in 26 (87%) of those 30 cases, and he dissented from none of the Government divisions’ 23 victories in cases with authored opinions.

 

Part IV: Civilian Counsel and the Appellate Defense Divisions

Civilian defense counsel argued 7 (22%) of the 32 cases argued at CAAF this term: (Forbes, Briggs, Smith, Gleason, Voorhees, Frost, and Hyppolite).

Of those 7 arguments by civilian counsel, the defense won in 3 (43%) (Briggs, Gleason, and Frost).

In cases argued by military appellate defense counsel, the defense won in 4 out of 25 (16%).

On the Government division side one civilian attorney argued one case (Briggs).

All 4 cases where military defense counsel argued and won were from the Army (Tucker, Tovarchavez, English, and Navarette).

The oral argument success rates for military defense counsel at each of the four appellate defense divisions was:

  • Army Appellate Defense: 4 out of 17 (24%).
  • Air Force Appellate Defense: 0 out of 4.
  • Navy-Marine Corps Appellate Defense: 0 out of 3.
  • Coast Guard Appellate Defense: 0 out of 1.

 

Part V: Certified and Specified Issues

CAAF heard oral argument in 3 cases with issues certified by a Judge Advocate General: Cooper, Perkins, and Hyppolite. Of those, 1 was from the Air Force, and 2 were from the Navy and Marine Corps.

The Government divisions won in all three.

CAAF also issued summary dispositions in two cases with certified issues: Collins and Daniels. Both were Mangahas / Briggs trailers. In both cases CAAF rejected the certified issues.

CAAF specified issues for oral argument in 2 cases: Hale and Stout. The specified issues were dispositive in one (Stout).

 

Part VI: The Courts of Criminal Appeals

Of the 32 cases heard at oral argument in the 2018 term, the CCAs were represented as follows:

  • 7 (22%) were from the Air Force CCA.
  • 20 (63%) were from the Army CCA.
  • 1 (3%) were from the Coast Guard CCA.
  • 4 (13%) were from the Navy-Marine Corps CCA.

One of those 32 arguments, however, one was the writ petition in Hasan that didn’t involve direct review of a CCA’s decision.

Of the 31 oral arguments involving review of a CCA’s decision:

  • The Air Force CCA was reversed in 1 out of 7 cases (14%).
  • The Army CCA was reversed in 6 out of 19 cases (32%).
  • The Coast Guard CCA was reversed in 0 out of 1 case.
  • The Navy-Marine Corps CCA was reversed in 1 out of 4 cases (25%).

CAAF also summarily reversed and remanded 8 CCA decisions. Of those 8 summary reversals:

  • 7 were from the Army CCA.
  • 1 was from the Navy-Marine Corps CCA.

 

Part VII: Extraordinary Relief

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

The one not denied was the petition for a writ of habeas corpus in Collins, that CAAF granted.

 

Part VIII: A Preview of the 2019 Term

CAAF begins the 2018 term with 20 cases on its docket. That includes one capital appeal (Hennis) that was docketed in 2017 and in which CAAF’s review is mandatory. It also includes two certified cases (Armendariz and Easterly).

Other notable cases include CAAF’s grant of review in the Navy cases of Bess and Jeter (as a Bess trailer) with issues questioning whether a convening authority’s selection of members was improper due to the racial composition of the panels. The court also granted review in Jessie and Guinn (as a Jessie trailer) to consider a former policy of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, that prohibited prisoners convicted of child sex offenses from having any contact with children, including their own biological children.

The first argument of the term – next week at Brigham Young University, Provo, Utah – is in Rice and presents a double jeopardy challenge to the prosecution of an Army Colonel for the wrongful possession and distribution of child pornography. The Government prosecuted Rice in both District Court and by court-martial (in that order), and Rice may win dismissal of both cases.

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

CAAF’s schedule includes just 23 oral argument dates for the 2018 term. That’s fewer than the 24 scheduled argument days for the 2018 term (of which only 18 were used, though one was lost to inclement weather), the 30 scheduled argument days for the 2017 term (of which only 19 were used; one lost to weather), and the 27 scheduled argument days in the  2016 term (of which only 23 were used).

That schedule suggests that CAAF antiticaptes hearing about 38 oral arguments in the 2019 term. That number is average for the past decade, as shown by this chart from CAAF’s FY18 Annual Report:

Note: On this chart, the FY is a year greater than the term year (so FY18 covers the 2017 term)

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

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