CAAFlog » End o' Term Stats

CAAF’s term begins on on the first day of September, and we’ve compiled End o’ Term Stats every year since 2006 (check the Annual Reports menu on the top navigation bar). We’re now at the halfway point of the September 2013 Term. Here’s where things stand:

CAAF has heard oral argument in 21 cases so far this term (23 if we include Davis and Paul, both argued on March 4)  and issued 10 authored opinions (in chronological order): Mead, Merritt, Warner, Winckelmann, Payne, Passut, Knapp, Moss, Wicks, and Hines.

Of these 10, the court’s decision was with the Government in 5, against the Government in 4, and against both in 1 (Moss, where the court dismissed the appeal over the argument of both parties). Only 1 was a certified case (Hines), resulting in a unanimous win for the Government. 3 of the 10 decisions drew dissents (Warner, Knapp, and Moss), all authored by Chief Judge Baker. He was alone in Warner, joined by Senior Judge Effron in Moss, and joined by Judge Ryan in Knapp. But an equal 3 cases were decided unanimously (meaning without any separate opinion).

Speaking of Senior Judge Effron, he participated in 7 of the authored decisions (Mead, Merritt, Warner, Winckelmann, Payne, Passut, and Moss) as well as the oral argument in Finch (decision still pending), while Senior Judge Cox participated in just 1 case (Wicks), before Judge Ohlson’s confirmation in October.

CAAF also issued 36 summary dispositions so far this term, of which 11 involved the comments of a Marine Corps military judge and 15 involved the appointment of Mr. Soybel to the AFCCA (see Janssen). Of the other 10 summary dispositions, 3 were in certified cases (Arriaga and Lindgren from the Air Force, and Sickels from the Army) and all 3 were decided against the Government. Chief Judge Baker dissented from 2 of those decisions (Arriaga and Lindgren) and also from the granted case of McKim-Burwell.

Finally, I’m tracking 34 active cases on the court’s master docket. This number includes 8 Janssen trailers, 2 other apparent trailers (no briefs ordered in Moon and Winn), and the mandatory review of the capital sentence in Akbar (to be argued next term). Of the remaining 23 cases, 13 have already been argued, and 10 remain to be argued. There are 6 scheduled oral argument days remaining in the term (including a project outreach argument on April 9).

Computing and publishing our seventh annual End o’ Term Stats was a challenge. After all, I’m a company grade trial litigator who has never been assigned to an appellate division (needs of the Marine Corps, they tell me. . .).

Nevertheless, five posts over the past week discussed the term in general, the dissents this term, the odds of each of CAAF’s judges voting together, the success rates for retained counsel and the appellate defense divisions, and the certified and specified issues and CAAF’s treatment of each CCA. You can read the entire series at this link.

These stats revealed that:

• Chief Judge Baker and Judge Ryan were the most Government-friendly, siding with The Man in 23 out of 37 cases (62%).

• The Army was CAAF’s biggest customer (or is it the other way around?) for both oral arguments and cases with authored opinions (both at about 44% of the total).

• An opinion authored by Judge Ryan was least likely to draw a dissent (just 33.3% of the time), with an opinion authored by Judge Stucky in a close second place (drawing a dissent 37.5% of the time).

• But Chief Judge Baker was most likely to draw a dissent. Of the 8 opinions of the court he authored, 5 of them (62.5%) drew dissents.

• Everyone [hearts] Judge Erdmann. In cases with non-unanimous decisions, every judge (including the senior judges) was more likely to have joined with Judge Erdmann in voting for the winner than with any other judge.

• Judge Erdmann was also the winningest judge of the term, siding with the prevailing party in 39 out of 40 cases (97.5%). This might completely explain the last stat (meaning that he’s good but not necessarily popular), but I don’t know math well enough to be sure. So I say that Judge Erdmann was both good and popular.

• Speaking of winningest, Code 45 (the Navy-Marine Corps Appellate Defense Division) took the lead, winning 7 out of 12 cases (58.3%). Get ready for PCS orders folks. . .

• And while every CCA was about as likely to be reversed by CAAF as not (in the 40 cases considered after oral argument or resolved in a per curiam opinion), the Air Force CCA had the barely-worst year of the bunch, being reversed in 5 of 9 cases (55.5%).

All that said, there was one error in my calculations. In Part V, I reported that CAAF resolved 6 certified cases in the 2012 term (Vazquez, Datavs, Whitaker, Medina, Schell, and Porter). But there was a seventh. Carter (certification discussed here) was resolved by summary disposition (discussed here) in what I’m calling a loss for the Government. So the disposition of certified cases wasn’t so perfectly balanced after all, unless we’re not counting summary dispositions.

But personally, since I’m watching CAAF from afar while bad at math, I’m thrilled to have made just that one miscalculation.

This is the final installment of the 2012 Term End o’ Term Stats.

As discussed in Part I, CAAF heard seven cases with certified issues, including LRM (where the Air Force JAG took the highly-unusual action of certifying a petition for extraordinary relief). Excluding LRM, the Government won 3 out of 6 certified cases (50%). The Government won just 40% of the certified cases last year.

The six certified cases (still excluding LRM) included two from the Air Force (Vazquez and Datavs), two from the Coast Guard (Whitaker and Medina; the only Coast Guard cases at CAAF this term), one Army case (Schell) and one Marine Corps case (Porter).

CAAF granted cross-petitions in two of the certified cases (Datavs and Schell).

It’s hard to see any trends in these six cases, unless balance is a trend. Four of the six were decided in authored opinions, of which the Government won half. Two were decided per curiam and without oral argument, of which the Government also won half. None of the four authored opinions had dissenters (though Chief Judge Baker and Judge Stucky both wrote separate concurring opinions in Vazquez). Senior Judge Effron and Senior Judge Cox each participated in two of the cases, each siding with the Government in half. Even the cases with cross-petitions were split, with the Government winning in one (Datavs) and losing in one (Schell), both in unanimous authored opinions of the court.

Of note, both Datavs and Schell are very interesting cases from substantive and procedural standpoints, but a little hard to call as a win or loss for the Government. In Datavs, the AFCCA found deficient performance by the trial defense counsel, but no prejudice to the accused, and affirmed the findings and sentence (after correcting for excessive forfeitures). But both parties jointly requested reconsideration by the CCA (which denied the request), and then the JAG certified the case to CAAF. CAAF also found no prejudice and affirmed the CCA and the findings and the sentence (which is why I call Datavs a win for the Government). In Schell the ACCA interpreted the intent element of 18 U.S.C. § 2422(b) and set aside the plea of guilty. The JAG certified the case to CAAF, which reversed the ACCA on the 2422(b) issue, but also found that the plea inquiry was inadequate and affirmed the CCA’s ultimate action vacating the plea (which is why I call Schell a loss for the Government).

CAAF also has the ability to specify issues not raised by either party (see Rule 21(d)). The court specified issues in five cases this term: Kelly, Bennitt, Capel, Caldwell, and CCR. Of these, three of the cases were decided on specified issues: Kelly (lawfulness of an inspection), Capel (CAAF specified the Art. 107 issue), and CCR (CAAF specified the jurisdictional questions after – and practically speaking it was really during – the oral argument).

But CAAF didn’t reach the specified issue in Bennitt or in Caldwell. Curiously, while the court specified the single issue in Caldwell (“Whether, as a matter of law, a bona fide suicide attempt is punishable as self-injury under Article 134.”), it decided the case on different grounds (finding the plea of guilty to be improvident).

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This year retained counsel represented parties before CAAF in seven opinion-generating cases: Spicer (retained counsel on brief only, military counsel argued this case), Cote, CCR, Gaskins, Squire, Garner, and Vazquez.

The Government lost in three out of these seven (Spicer, Cote, and Gaskins), for a 43% defense success rate in cases with retained counsel.

But that includes the writ-appeal in CCR, where CAAF found no jurisdiction. Excluding that unusual case, cases with retained counsel resulted in relief in a healthy three out of six cases (50%).

In comparison, military appellate defense counsel won relief in 15 out of 31 cases (48.4%).

Note: 31 cases is the 40 total cases identified in Monday’s Part I, less LRM, Hasan, and the seven cases with retained counsel identified above.

Of the 15 cases where military appellate defense counsel won relief:

Two (13.3%) were Air Force cases (Capel and Tunstall).

Five (33.3%) were Army cases (Kelly, Riley, Jasper, Bennitt, and Schell).

One (6.7%) was a Coast Guard case (Medina).

Six (40%) were Marine Corps cases (Salyer, Caldwell, Hutchins, Castellano, Solomon, and Porter).

One (6.7%) was a Navy case (Mott).

(Seven (46.7%) total Navy and Marine Corps cases).

So, the success rates for each of the four appellate defense divisions (using a total of 31 cases) were:

Air Force Appellate Defense: 33.3% (2 out of 6).

Army Appellate Defense: 45.5% (5 out of 11).

Coast Guard Appellate Defense: 50% (1 out of 2).

Navy-Marine Corps Appellate Defense: 58.3% (7 out of 12).

The breakdown of the dissenters in the 16 cases with dissenting opinions this term was discussed yesterday in Part II (dissents). But over the past years we’ve looked at voting blocs from the perspective of the prevailing party (see here and here).

This term, the most likely judges to vote together for the prevailing party in a non-unanimous decision were Judge Ryan and Judge Erdmann, who joined in the majority in 10 of the 16 cases where there were dissents (I’m still calling Judge Erdmann’s separate opinion in Irizarry, joined by Chief Judge Baker, “dissenting in part and concurring in the result,” as a concurring opinion). The least likely judges to join together and side with the prevailing party in a non-unanimous decision were Chief Judge Baker and Judge Stucky, who joined in the majority in just 2 of the 16 cases where there were dissents. The rankings (excluding the senior judges) for each pairing are:

1. Judge Ryan and Judge Erdmann with 10 of 16 (they were 3rd place both of the past two years).

2 – 3. A two-way tie:

-Judge Erdmann and Chief Judge Baker with 8 of 16 (they tied for 5th place last year; 7th place the year before).
-Judge Erdmann and Judge Stucky with 8 of 16 (they tied for 5th place last year; tied for 4th place the year before).

4. Judge Ryan and Judge Stucky with 7 of 16 (they were 1st place last year; second place the year before).

5. Chief Judge Baker and Judge Ryan with 5 of 16 (they were 4th place last year; 6th place the year before).

6. Chief Judge Baker and Judge Stucky with 2 of 16 (they were 2nd place last year; tied for 4th place the year before).

Senior Judge Cox sat on the court in 15 case, of which 8 had dissents. He was in the minority in 3 of these cases, but of the other 5 he was in the majority with:

1. Judge Erdmann in all 5 (least likely last year, with only 1 of 5).

2 – 3. A two-way tie with Chief Judge Baker (third place last year) and Judge Ryan (tied for first with Judge Stucky last year), joining each of them in the majority in 4 of the 5 cases.

4. Judge Stucky in just 2 of 5 (tied with judge Ryan for the most cases last year).

Senior Judge Effron sat on the court in 22 cases, of which 8 had dissents. He was in the minority in just 1 of these cases. Of the other 7 he was in the majority with:

1. Judge Erdmann in all 7 (tied for 1st place last year with 3 of 4).

2. Judge Ryan in 5 of the 7 (tied for 1st place last year with 3 of 4).

3. Chief Judge Baker in 4 of the 7 (4th place last year with 2 of 4).

4. Judge Stucky in 3 of the 7 (third place last year with 1 of 4).

Judge Erdmann and Senior Judge Effron had almost-perfect records for the term. They sided with the prevailing party in every case except Halpin, where Judge Erdmann wrote a dissent that was joined by Senior Judge Effron. Percentage-wise, Judge Erdmann picked the winner in 39 of 40 cases (97.5%) and Senior Judge Effron picked the winner in 21 of 22 cases (95.5%).

Of the 34 authored opinions this term, ten were unanimous (with neither separate concurring opinions or dissents). Of these, the Government prevailed in just four. The Government won three out of four per curiam decisions (there was a fifth per curiam decision, in Hasan, which could be considered a Government loss). The Government also won in the summary disposition of Holsey.

But there were dissenting opinions in 16 of the 34 cases with authored decisions.

Note: After much back-and-forth, I’ve decided to count Judge Erdmann’s separate opinion in Irizarry, joined by Chief Judge Baker, “dissenting in part and concurring in the result,” as a concurring opinion, primarily because even with this separate opinion the court was unanimous in denying relief to the appellant.

Overall, Chief Judge Baker and Judge Stucky were tied for the greatest number of dissenting votes, with seven each. Next was Judge Ryan with five, followed by Senior Judge Cox with three, and Judge Erdmann and Senior Judge Effron with just one each. These dissents favored the Government as follows:

Chief Judge Baker sided with the Government in 5 of 7 dissents (71.4%)

Judge Stucky sided with the Government in 4 of 6 dissents (66.6%) (his seventh dissent was in LRM)

Judge Ryan sided with the Government in 4 dissents (100%) (her fifth dissent was in LRM)

Senior Judge Cox sided with the Government in 1 of 3 dissents (33.3%)

Judge Erdmann was against the Government in his one dissent (0%)

Senior Judge Effron sided with the Government in his one dissent (100%)

Eight of the 34 authored opinions had a lone dissent. Of these:

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Over the course of this week I’m going to continue our annual tradition of end-of-term number crunching.

CAAF heard 36 oral arguments this term, which resulted in 34 authored opinions, one per curiam opinion, and one summary disposition. The court also issued four per curiam opinions in cases without hearing oral argument, for a total of 40 cases this term.

Of these 40 cases, three (Hasan, CCR, and LRM) involved petitions for extraordinary relief.

Of the 34 authored opinions, the work of writing the authored opinions was as evenly divided as possible for a four-judge court: Judge Ryan and Judge Erdmann each wrote nine opinions, and Chief Judge Baker and Judge Stucky each wrote eight. Neither of the Senior Judges authored an opinion of the court, but Senior Judge Effron wrote a separate concurring opinion in Garner, and Senior Judge Cox wrote dissenting opinions in CCR and in Wilson.

Because of the continuing vacancy, CAAF was a four-judge court for the second year in a row. CAAF called on Senior Judge Effron and Senior Judge Cox to participate in the 36 oral arguments. The court also called on Senior Judge Effron to participate in the writ-appeal in Hasan, which was decided without oral argument. Overall, just like last year, Senior Judge Effron participated in more cases: 22 to Senior Judge Cox’s 15 (last year Senior Judge Effron participated in 20 cases to Senior Judge Cox’s 16).

The breakdown of cases by service can be counted in a number of ways:

Of the 40 total cases identified in the first paragraph, the breakdown is:

Air Force: 9 (22.5%)
Army: 17 (42.5%)
Coast Guard: 2 (5%)
Marine Corps: 7 (17.5%)
Navy: 5 (12.5%)
(Navy and Marine Corps combined: 12 (29.4%))

Of the 36 oral arguments, the breakdown is:

Air Force: 8 (22.2%)
Army: 16 (44.4%)
Coast Guard: 1 (2.8%)
Marine Corps: 6 (16.7%)
Navy: 5 (13.9%)
(Navy and Marine Corps combined: 11 (30%))

Of the 34 authored opinions, the breakdown is:

Air Force: 8 (23.5%)
15 Army: 15 (44.1%)
Coast Guard: 1 (2.9%)
Marine Corps: 6 (17.6%)
Navy: 4 (11.8%)
(Navy and Marine Corps combined: 10 (29.4%))

The Government won more than it lost, but just barely. Excluding the three cases involving petitions for extraordinary relief (but including the summary decision in Holsey), the Government won in 19 cases and lost in 18 cases. I’m including Gaskins (where the Government won on the first and primary issue, but lost on the second issue that addressed a defective 134 specification in a case that was tried well before CAAF decided Fosler) as a loss for the Government, though I really consider it to be more of a tie.

So, of these 37 cases, the Government won in:

5 out of 8 Air Force cases (62.5%).

8 out of 15 Army cases (53%)

1 out of 2 Coast Guard cases (50%).

1 out of 7 Marine Corps cases (14.3%).

4 out of 5 Navy cases (80%).

(5 out of 12 combined Navy and Marine Corps cases (42%)).

Excluding the summary decision in Holsey and the three cases involving petitions for extraordinary relief (Hasan, CCR, and LRM), the Government won 18 out of 36 cases (50%) decided by an opinion of the court. This is relatively low. Last year the Government won 67% of the cases decided by an opinion of the court, though the year before it won just 52%.

CAAF heard seven cases with certified issues, including LRM. Excluding LRM, the Government won 3 out of 6 certified cases (50%). The Government won just 40% of the certified cases last year.

Of the cases where CAAF heard oral argument, the Government won 17 out of 34 (50%) (these numbers do not include the oral arguments in CCR or LRM). This is down significantly from last year, when the Government won 66% of of the cases where CAAF heard oral argument.

And finally, excluding the three cases involving petitions for extraordinary relief (Hasan, CCR, and LRM), each of the judges sided with the Government as follows:

Chief Judge Baker: 23 out of 37 (62%)

Note: This includes Irizarry as a unanimous win for the Government, even though Chief Judge Baker and Judge Erdmann dissented in part, because they concurred in the result.

Judge Ryan: 23 out of 37 (62%)

Judge Stucky: 21 out of 37 (57%)

Senior Judge Effron: 10 out of 20 (50%)

Judge Erdmann: 18 out of 37 (49%) (see the note about Irizarry above)

Senior Judge Cox: 6 out of 15 (40%)

If you ask a military appellate defense counsel what irritates her about our appellate system, high on the list will be certified issues.  While the defense has to try to convince CAAF to exercise its discretionary jurisdiction to hear any given case, each Judge Advocate General is authorized to certify cases to CAAF, thereby bypassing the petition stage.  This power is almost universally — though not invariably — exercised to provide the government with access to CAAF to review a decision it lost at the CCA level.  At least most appellate defense counsel with whom I’ve discussed the issue — and possibly all of them — have said they would prefer a system like the Supreme Court has, in which the government has to petition for review just like everyone else does.  Of course, the Solicitor General has a phenomenally higher grant rate compared to everyone else, but that’s due in part to that official’s wise choices concerning which cases warrant seeking cert.

While I usually try my hardest not to wear my appellate defense glasses when writing CAAFlog posts, I am aware that my day job influences my perceptions.  So I’ll admit to being pleased that CAAF ruled for the government in only 2 of the 7 cases that it decided upon certification this year.

CAAF overturned ACCA in one certified issue case, Pierce, and NMCCA in another, Hayes.

CAAF delivered opinions ruling for the defense on the merits in two other certified issue cases, Nash and Rose, though in both of those cases, CAAF’s reasoning varied from that of the CCA while reaching the same outcome.  In another case, Humphries, CAAF didn’t reach the certified issue because it ruled for the defense on other grounds.

In Brissette, CAAF upheld AFCCA’s favorable ruling without even hearing oral argument.  And in Cooper, CAAF summarily affirmed ACCA’s decision, noting that “because the Army Court of Criminal Appeals has returned the underlying matter to the military judge for clarification, no ripe interlocutory issue exists for this Court to decide.”  In another head scratcher, an Air Force case was certified to CAAF in which the government won at AFCCA and the certified issue asked whether the government should have won on a different ground instead.  United States v. Datavs, 71 M.J. 152 (C.A.A.F. 2012).  CAAF was saved from being asked to issue an advisory opinion when it granted review of the defense petition, thereby presenting the court with an actual controversy, since the defense would have had little reason to take a position on a certified issue asking whether it should have lost on Ground B instead of Ground A.  Datavs, however, won’t be heard until next term.

And speaking of next term, I’m going to offer a quick preview in a follow-on post.

We previously looked at voting patterns based solely on which party each judge voted for in a given case.  This post will drill a bit deeper and look at how often each judge was part of the majority opinion.

Of the 33 opinions of the court, 14 were joined by every judge who participated while 19 were accompanied by either 1 or 2 opinions concurring in the result, 1 or 2 dissents, or 1 opinion concurring in the result and 1 dissent.

2 opinions were accompanied by 2 judges concurring in the result

8 opinions were accompanied by 1 judge concurring in the result

5 opinions were accompanied by 2 judges dissenting

3 opinions were accompanied by 1 judge dissenting

1 opinion was accompanied by 1 judge concurring in the result and 1 judge dissenting

Judge Ryan was by far the most likely judge to join the majority opinion while Chief Judge Baker was by far the least likely.

First, let’s look at the 33 opinions of the court.  Judge Ryan joined the majority opinion in 32 of the 33 cases.  (The one exception was her joining Judge Erdmann’s dissent in Vela.)

The next most likely to join the majority opinion was Judge Stucky, who did so in 28 of 33 cases.  He concurred in the result in 4 cases and dissented in 1 (Humphries).

Just behind Judge Stucky was Judge Erdmann, who joined 26 of the 33 opinions of the court.  He was far more likely to dissent than to concur in the result.  Judge Erdmann dissented in full or in part in 6  cases and concurred in the result in 1.

The judge who was least likely to join the opinion of the court was Chief Judge Baker, who did not join 12 out of 33 opinions of the court.  He dissented in whole or in part in 5 cases and concurred in the result in 7.

Senior Judge Cox joined in the opinion of the court in all 15 cases in which he participated; Senior Judge Effron joined the opinion of the court in 16 of the 18 cases in which he participated, dissenting once and concurring in the result once.

Based on those statistics, we already see Chief Judge Baker marching to the beat of a different drummer.  When we look at summary dispositions, that appearance is magnified.

Over the course of the entire term, Chief Judge Baker dissented in 130 cases in which CAAF summarily remanded to the CCA.  Nine of those were Sweeney trailers, 78 were Fosler trailers, and 42 were Humphries trailers.  He also dissented in an additional Humphries trailer that resulted in findings of guilty being set aside but no remand and no sentence relief.  And he dissented in one summary affirmance on Fosler grounds.

In another 44 cases, Chief Judge Baker concurred in the result in Ballan trailers.  So Chief Judge Baker declined to join the majority in 175 summary disposition cases as well as 12 plenary review cases.

Chief Judge Baker wasn’t the only judge who separated himself from the majority in a summary disposition case.  In September 2011, Judge Stucky dissented from 5 summary disposition remands of Sweeney trailers, adhering to his Sweeney dissent in 4 of them and finding waiver in the fifth.  In 3 other Sweeney trailers, he concurred in the result, noting that under the facts of those cases, the primary purpose for some of the urinalyses at issue might have been law enforcement-related.

When the current term started, now-Senior Judge Effron was still Chief Judge Effron.  He served in that role before retiring after the first month of the current term.  While in that capacity, he dissented in 56 summary disposition remands on Fosler grounds.  After becoming a senior judge, he dissented in one more summary disposition Fosler remand — United States v. Conrady, 70 M.J. 372 (C.A.A.F. 2011), which was decided on 7 October 2011.  It isn’t apparent to me why Senior Judge Effron took action on this lone Fosler trailer after he took senior status.

Despite dissenting to a total of 57 summary dispositions on Fosler grounds, Senior Judge Effron would end up supporting application of Fosler in the most significant Fosler trailer of the term:  United States v. Humphries.  More on that in a subsequent post.

It does not appear that either Judge Erdmann or Judge Ryan either dissented or concurred in the result in any summary disposition case this term.

For the fith year in a row, we looked at which judges were most likely to vote for the same prevailing party as which other judges.  Of course, this year is different because of Judge Effron’s retirement and the rotating fifth judge slot.

This term there were 9 non-unanimous decisions by CAAF.  Four involved lone dissents, two each by Chief Judge Baker and Judge Erdmann.  Obviously the remaining 5 were 3-2 decisions.

The most likely pairing this year was Judge Stucky and Judge Ryan, who voted together in 7 of the 9 non-unanimous opinions and in 31 of all 33 opinions of the court.  That was the second most likely pairing last year, with last year’s most likely pairing (Chief Judge Effron and Judge Erdmann) no longer available.  The least likely pairings this year were a tie.  Chief Judge Baker and Judge Erdmann were on the same side of only 2 of the 9 non-unanimous decisions (and 26 decisions overall).  Judges Erdmann and Stucky were also on the same side of only 2 of the 9 non-unanimous decisions.  The latter pairing was more striking in one respect:  Judges Stucky and Erdmann were not on the same side in any of the 5 3-2 decisions.  Chief Judge Baker and Judge Erdmann, on the other hand, were on the same side (the dissent) in 2 of the 3-2 decisions.

Here are the number of times in which the four non-senior CAAF judges voted for the same prevailing part in non-unanimous cases, with last year’s ranking for that pairing following in brackets:

1.  Judge Stucky & Judge Ryan (7/9) [2]

2.  Chief Judge Baker & Judge Stucky (5/9) [4 - tie]

3.  Judge Erdmann & Judge Ryan (4/9) [3]

4.  Chief Judge Baker & Judge Ryan (3/9) [6]

5.  [TIE]  Chief Judge Baker & Judge Erdmann (2/9) [7]

Judge Erdmann & Judge Stucky (2/9) [4 - tie]

Now let’s look at the pairings for the senior judges.

Senior Judge Cox sat on the court in 15 cses, 5 of which were non-unanimous.  Here’s how he lined up:

1.  [TIE]  Judge Stucky & Senior Judge Cox (4/5)

Judge Ryan & Senior Judge Cox (4/5)

3.  Chief Judge Baker & Senior Judge Cox (2/5)

4.  Judge Erdmann & Senior Judge Cox (1/5)

Senior Judge Effron sat on the court in 18 cases, 4 of which were non-unanimous.  Here’s how he lined up, with last year’s ranking for that pairing among the 10 possible combinations in brackets:

1.  [TIE]  Judge Erdmann & Senior Judge Effron (3/4) [1]

Judge Ryan & Senior Judge Effron (3/4) [8]

3.  Judge Stucky & Senior Judge Effron (2/4) [9 - tie]

4.  Chief Judge Baker & Senior Judge Effron (1/4) [9 - tie]

As we previously noted, this term the government prevailed in 22 of the 33 (67%) cases decided by an opinion of the court.  Which judges were most likely to vote for the government and which most likely to vote for the defense?

Let’s start by looking at the four judges who sat with the court on every case:  Chief Judge Baker and Judges Erdmann, Stucky, and Ryan.  Last year, here’s how those four lined up on the continuum from most likely to vote for the government to most likely to vote for the defense:  Chief Judge Baker, Judge Stucky, Judge Ryan, and Judge Erdmann.  This year, they line up in the same order.

First, let’s go with numbers from all cases.

Chief Judge Baker voted for the government in 23 cases (70%) and with the defense in 10 (30%).  Last term he voted for the government in 72% of the cases.

Judge Stucky voted with the government in 22 cases (67%) and with the defense in 11 (33%).  Last year he voted with the government in 65% of the cases.

Judge Ryan voted with the government in 21 cases (64%) and with the defense in 12 (36%).  Last year she voted with the government in 63% of the cases.

Judge Erdmann voted with the government in 16 cases (48%) and with the defense in 17 (52%).  Last year he voted with the government in 48% of the cases.

So this year’s percentages are remarkably similar to last year’s.

Now let’s isolate the non-unanimous cases.  In the 9 cases decided by a divided vote, Chief Judge Baker voted for the government in 7 (78%).  Judge Stucky voted for the government in 6 (67%).  Judge Ryan voted for the government in 5 (56%).  And Judge Erdmann voted for the government in 0.  That’s right — in all 9 non-unanimous cases, Judge Erdmann voted for the defense.  That is reminiscent of last term, when Judge Erdmann voted for the defense in all 11 of the 3-2 cases.

As might be expected from Judges Stucky and Ryan’s middle positions, they were the two judges most likely to be in the majority.  Each dissented from only one of this term’s 33 opinions of the court, though not from the same opinion.  Judge Stucky dissented in Humphries while Judge Ryan dissented in Vela.  As we’ll see in a later post, Judge Ryan was not only in the majority, but on the majority opinion in all but one of this term’s decisions.  Chief Judge Baker was slightly more likely to vote for the majority’s result than was Judge Erdmann (who dissented most often), but was nevertheless the least likely to join the majority opinion; Chief Judge Baker dissented or concurred in the result in 12 of the 33 cases.

Now let’s add the senior judges to the mix.

Senior Judge Cox voted for the government in 10 of the 15 cases (67%) on which he sat.  Senior Judge Effron voted for the government in 11 of the 18 cases (61%) on which he sat.  But a different picture emerges if we isolate the non-unanimous cases.  Senior Judge Cox voted for the government in 4 of the 5 (80%) of the non-unanimous cases on which he sat.  Senior Judge Effron voted for the government in 1 of the 4 (25%) of the non-unanimous cases on which he sat.

CAAF decided four 3-2 cases this term on which one of the two senior judges was in the majority.  In three of those cases (Kreutzer, Fry, and Vela), Senior Judge Cox cast the deciding vote, which was for the government in each of those cases.  In the fourth of those cases (Humphries), Senior Judge Effron cast the deciding vote for the defense.  It’s interesting to consider whether (and how many) of those 3-2 cases would have gone the other way had the luck of the draw placed the other senior judge on the court the day it was argued.  (Actually, it takes the senior judge’s acceptance of an invitation from the Chief Judge to place a particular senior judge on the court for a particular oral argument.  See Art. 142(e), UCMJ.  It is apparent that Chief Judge Baker has been asking either Senior Judge Effron or Senior Judge Cox to sit with the court for a particular week’s oral arguments without regard to the particular cases being argued that week.  So, in essence, it is luck of the draw that puts a particular Senior Judge on a particular case.)

This year, retained civilian defense counsel represented the appellant in 5 of the 33 cases the produced opinions of the court.  But here’s an oddity:  all 5 cases with retained civilian counsel were Army cases.  Both the number and percentage of retained civilian defense counsel was up this term:  last year, retained civilian defense counsel appeared in 4 of 46 cases.

Retained civilian counsel prevailed in 2 of the 5 cases (40%).  In cases where the appellant was represented by a military or DOD civilian appellate defense counsel, the defense prevailed in 32% (9/28).  Last term, retained civilian defense counsel prevailed in 50% of the cases compared to 43% for military/civilian DOD counsel.

Two years ago, the Government prevailed in 8 of the 10 3-2 cases.  Last year, the defense prevailed in 9 of the 11 3-2 cases.  This year the pendulum swung back, with the Government winning 4 of the 5 3-2 cases.  Humphries was the only 3-2 case in which the defense prevailed.

Judge Stucky voted for the Government in all 5 3-2 cases.  Both Chief Judge Baker and Judge Ryan voted for the Government in 3 such cases.  Senior Judge Cox voted for the Government in all 3 of the 3-2 cases on which he sat.  Judge Erdmann voted for the defense in all 5 3-2 cases.  Last term, Judge Erdmann also voted for the defense in all of the 3-2 cases.  This term, Senior Judge Effron voted for the defense in both of the 3-2 cases on which he sat. 

Judges Stucky and Ryan tied as the most likely to be in the majority in a 3-2 case; each was in 4 such majorities (though not the same 4).  Senior Judge Cox was in the majority in all 3 of the 3-2 cases on which he sat.  Chief Judge Baker was in the majority of 2 of the 5 3-2 decisions.  Senior Judge Effron and Judge Erdmann tied as the least likely to be in the majority in a 3-2 case with 1 each.  But for Senior Judge Effron, that was 1 of only 2 3-2 cases on which he sat.  Judge Erdmann was in the majority of only 1 of the 5 3-2 cases on which he sat.

The most likely combination of judges in the majority of a 3-2 decision was Judge Stucky, Judge Ryan, and Senior Judge Cox, with 2.  The most likely combination of judges to be in dissent in a 3-2 decision was Chief Judge Baker and Judge Erdmann with 2.

Serious number crunching — including our annual look at which CAAF judges were most likely to vote together and which were most likely to disagree — will have to wait until later this week, but here are some preliminary numbers.

CAAF heard 35 oral arguments this term, resulting in 33 opinions of the court.  Chief Judge Baker and Judge Ryan each authored eight opinions of the court.  Judges Erdmann and Stucky each authored seven.  The court issued three per curiam opinions.  No senior judge authored an opinion of the court, though Senior Judge Effron authored two separate opinions (a dissent in Behenna and a concurrence in Ali).

One distinguishing feature of the 2011 Term is that CAAF was a four-judge court — and will almost certainly remain a four-judge court long into 2013.  In each case in which the court heard oral argument, either Senior Judge Effron or Senior Judge Cox sat with the court.  Senior Judge Effron participated in 20 cases while Senior Judge Cox participated in 16.  I know some of you are thinking, “Hey, Dwight, that’s 36 cases and CAAF only heard 35 oral arguments.”  The extra case was the Assange v. United States writ appeal.  See Assange v. United States, 71 M.J. 100 (C.A.A.F. 2012) (summary disposition).  Senior Judge Effron participated in the court’s decision in that writ appeal, which was denied without oral argument.

Of the 35 orally argued cases, 14 (40%) were from the Army, 12 (34%) from the Navy-Marine Corps, and 9 (26%) from the Air Force.  The court heard no Coast Guard cases.  Of the 33 cases decided by an opinion of the court, 13 (39%) were Army cases, 12 (36%) were Navy-Marine Corps cases, and 8 (24%) were Air Force cases.

Overall, the Government had a good year, prevailing in 23 of the 35 (66%) orally argued cases and 22 of the 33 (67%) cases decided by an opinion of the court.  But that success was uneven.  The Government won in 11 of the 14 (79%) Army cases that were orally argued (and 11 of the 13 (85%) Army cases that generated an opinion of the court) and 9 of the 12 (75%) Navy-Marine Corps orally argued cases.  But the Government won only 3 of the 9 (33%) Air Force cases that were orally argued and only 2 of the 8 (25%) Air Force cases that generated an opinion of the court.

Last year, the Government prevailed in 52% of CAAF’s cases decided by an opinion of the court.

This term, CAAF heard oral arguments in 6 cases with certified issues.  The defense prevailed in 4 (67%) of those cases.  The defense prevailed in 3 of the 5 (60%) cases with certified issues that generated an opinion of the court.

The Court affirmed ACCA in 10 of the 14 (71%) Army cases that were orally argued and 9 of the 13 (69%) Army cases decided by an opinion of the court.  It affirmed NMCCA in 9 of the 12 (75%) Navy-Marine Corps cases.  It affirmed AFCCA in 4 of the 9 (44%) Air Force cases that were orally argued and 3 of the 8 (37.5%) Air Force cases decided by an opinion of the court.

This is likely the last of the end o’ term stats posts for the year.

For the fourth year in a row, we looked at which judges were most likely to vote for the same prevailing party as which other judges.  The most likely pairings remained fairly consistent from last year with greater variability for the least likely pairings.  This year’s top three combinations were also last year’s top three combinations, though the order within the top three changed.  Over the past four years, the most persistent likely pairings have been Judge Erdmann & Judge Ryan and Chief Judge Effron & Judge Erdmann.  Of course, Chief Judge Effron will retire from the court at the end of this month, so next year’s results will look very different.

There were 17 non-unanimous decisions by CAAF.  Six involved lone dissents — three by Chief Judge Effron and three by Judge Baker.  Eleven decisions were 3-2.  Here are the number of times in which the CAAF judges voted for the same prevailing part in non-unanimous cases.  Previous years’ rankings for that pairing follow in brackets:

1.  Chief Judge Effron & Judge Erdmann (12/17) [3] [3] [3]

2.  Judge Stucky & Judge Ryan (11/17) [1] [7] [5]

3.  Judge Erdmann & Judge Ryan (9/17) [2] [2] [2]

4.  [TIE]  Judge Baker & Judge Stucky (8/17) [4] [4] [10]

                Judge Erdmann & Judge Stucky (8/17) [7] [10] [7]

6.  Judge Baker & Judge Ryan (7/17) [7] [8] [7]

7.  Judge Baker & Judge Erdmann (6/17) [10] [8] [6]

8.  Chief Judge Effron & Judge Ryan (5/17) [7] [4] [9]

9.  [TIE]  Chief Judge Effron & Judge Baker (4/17) [6] [1] [1]

                Chief Judge Effron & Judge Stucky (4/17) [4] [4] [3]