At the mid-term point, I noted that the number of petitions CAAF had received was on pace to be lower than any of the previouis 11 terms’ totals (and probably the lowest ever).

But the petition intake during the second half of CAAF’s just-completed term exceeded that of the first half.  According to the court’s official end o’ term stats, here (scroll down just a tiny bit), CAAF received 721 petitions for grant of review during the term.  That’s more than the FY 2003 term’s total of 694 petitions.  The September 2008 term’s total was 843.

The number of cases that CAAF carried over on its master docket (30) is identical to the number it carried over from the previous term.  That’s the latest indication that the number of cases CAAF decides during its brand new term will likely be similar to the number it decided during its just-completed term.

CAAF announces here that starting 1 September, just about everything may be e-filed at CAAF except for joint appendices and bar applications.

Oorah!

CAAF has issued its scheduled oral arguments through 1 December (available here).  CAAF has also issued this helfpul list of other dates on which it’s contemplating hearing argument.

Sixteen cases are set for argument between 27 September and 1 December.  Eight of those are Air Force cases, five are Naval cases, and the remaining three are Army cases.

Two other non-trailer cases have been granted, one from the Air Force (Beaty) and one from the Army (Soto).  There are also two certified issues (Rose and Humphries), both from the Air Force, for which argument hasn’t been scheduled.

Unless CAAF issues an unexpected opinion of the court in a case that hasn’t been orally argued (which, though unlikely, is possible; see, e.g., United States v. Bradford, 68 M.J. 371 (C.A.A.F. 2010)), it will issue 43 opinions of the court this term.  I believe that will be the smallest number of opinions of the court that CMA/CAAF has ever issued over a one-year period.

What will next term look like?  Based on current trends, it appears that the number of opinions of the court could be even smaller.

On Bastille Day, I noted my sense that CAAF’s number of grants was running ahead of a similar point last year.  I was wrong.  That’s why we crunch numbers rather than relying on our general sense of things.

I believe that CAAF currently has 20 cases that will likely be argued during its coming term — 17 cases with granted or specified issues and 3 caess with certified issues.  (I exclude cases that appear to be trailer cases that will likely be summarily disposed of in light of the outcome of some other case.)  Those 20 cases are:  Blazier, Alston, Medina, Jones, Staton, White, Luke, Gooch, Savard, Flores, Prather, Stefan, Pope, Hutchins (certified issue), Watson, Savala, Rose (certified issue), Beaty, Soto, and Humphries (certified issue).  If I left any out, please let me know.  You can post a note below or e-mail me at caaflog@caaflog.com.

At this point last term, there were 23 cases with granted or specified issues and 3 cases with certified issues in a similar posture.  So the number of cases in the chute for next term (20) looks like it’s 6 smaller than the number of cases in the chute at a similar point last term (26).  But obviously there’s plenty of time for CAAF to pull even with or ahead of last year’s pace. 

Last term, CAAF issued 46 opinions of the court.  The previous five terms, it issued 65, 55, 76, 64, and 57.  It appears unlikely that CAAF will return to those levels next term.  Rather, the court seems more likely to fall near the 43-46 range set this term and last.

Here’s the second certified issue from the Judge Advocate General of the Air Force docketed at CAAF this week:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPROVE AN ADJUDGED SENTENCE NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE OF E-1.

United States v. Humphries, __ M.J. __, No. 10-____ (C.A.A.F. July 14, 2010).  AFCCA’s unpublished decision in the case is available here.  (On 25 June, AFCCA denied the government’s motion for reconsideration en banc.)

The Judge Advocate General of the Air Force certified an issue to CAAF today:  “WHETHER AN ‘IMPRESSION’ LEFT BY CIVILIAN DEFENSE COUNSEL THAT APPELLEE MAY NOT HAVE TO REGISTER AS A SEX OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION AND LED TO INEFFECTIVE ASSISTANCE OF COUNSEL.”  United States v. Rose, __ M.J. __, No. 09-8020/AF (C.A.A.F. July 12, 2010).

This is the second time that a Judge Advocate General of the Air Force has certified the Rose case to CAAF.  When it first considered the case, the Air Force Court reversed the findings of guilty that would require the accused to register as a sex offender on IAC grounds arising from the civilian defense counsel’s faulty response to AB Rose’s questions about whether he’d have to register as a sex offender if he pleaded guilty to the indecent assault charges he faced.  United States v. Rose, 67 M.J. 630 (A.F. Ct. Crim. App. 2009).  The Judge Advocate General of the Air Force certified the case to CAAF, which reversed due to the Air Force Court’s failure to compel an affidavit from AB Rose’s former military defense counsel addressing the IAC claim.  United States v. Rose, 68 M.J. 235 (C.A.A.F. 2009) (summary disposition).  After that affidavit was produced (which said the previous counsel didn’t remember anything), the Air Force Court, sitting en banc, reached the same outcome as in the original case, this time in a 3-2 unpublished decision available here.  United States v. Rose, No. 36508 (f rev) (A.F. Ct. Crim. App. June 11, 2010) (en banc).

[Disclosure:  while I didn't represent AB Rose in any of his previous appeals, I'm representing him for purposes of the certified issue.]

The San Diego Union-Tribune has an interesting piece on Marine Sgt. Lawrence Hutchins, here, detailing his return to his Marine Corps unit after four years in the brig.   The story is similar to a North County Times piece that we linked to here and details his life after being released at an IRO hearing pending review of his case by CAAF.  We covered why he was entitled to a pre-trial confinement hearing here.

On 27 September, CAAF will hear reargument in Blazier, No. 09-0441/AF, following by argument in Savard, No. 10-0334/AF.  (I’ll be making the defense’s oral argument in Savard).  The following day, CAAF will hear oral argument on two challenges to the new Article 120.  First it will hear argument in Medina, No. 10-0262/MC.  Next will be oral argument in Prather, No. 10-0345/AF.

For weeks, we’ve been debating whether CAAF would hold another argument in Blazier following its receipt of briefs on the specified issues or instead issue a second opinion without reargument.  The answer is now in:

CAAF will hear reargument in Blazier on 27 September.

The Daily Journal reflects granted amicus status for NIMJ in both Blazier and Medinaand the Nat’l Assoc. of Criminal Defense Lawyers in Blazier.  Here are links to the briefs:

NIMJ in US v. Blazier - Crawford/Melendez-Diaz Confrontation Clause issues.

NIMJ in US v. Medina - constitutionality of Art. 120(c)(2), UCMJ and the affirmative defense of  consent.

NACDL in US v. Blazier(UPDATED) – Crawford/Melendez-Diaz Confrontation Clause issues.

Oral argument was requested and denied in all three instances.