CAAFlog » End o' Term Stats

It’s time again for our annual tradition of end-of-term number crunching. Like last year, this year’s stats are in a single post.

Part I: Overview

CAAF heard oral argument in 42 cases in the 2016 term, resulting in 39 authored opinions of the court, 2 per curiam opinions, and 1 summary disposition. Summaries of each case, with links to CAAFlog case pages, are available on the October 2016 Term page.

These arguments constituted the busiest oral argument calendar at the court since the 2011 term, when the court heard 47 arguments. It’s a stark contrast to last term’s mere 28 oral arguments, which I believe was the smallest number of arguments in a CAAF term since the court was established (as the CMA) in 1951.

CAAF was also very busy with summary dispositions. By my count the court issued summary dispositions in 220 cases – a number that is about 10 times more than average. My notes show that 175 of these 220 summary dispositions involved challenges to the composition of the CCA panels that reviewed the cases based on the fact that at least one judge was also a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR). The Supreme Court granted certiorari of this question in the final days of the term; the first such grant in a military case in nearly a decade.

The other summary dispositions include more than two-dozen trailer cases and a summary reversal and remand for further consideration in a case heard at oral argument (United States v. Brantley, 76 M.J. __ (C.A.A.F. Jun. 1, 2017) (CAAFlog case page)).

Of the 39 authored opinions of the court:

  • Judge Ryan wrote 9.
  • Judge Ohlson wrote 9.
  • Judge Sparks wrote 8.
  • Chief Judge Stucky wrote 7.
  • Senior Judge Erdmann wrote 6.

Senior Judge Erdmann earned senior status (and Chief Judge Stucky became Chief) when his 15-year appointment expired on July 31, 2017. I will refer to them by their current titles in these stats. CAAF begins the term with the seat still vacant, however the President recently announced his nominee.

The 42 cases heard at oral argument break down by service as follows:

  • Air Force: 13 (31%).
  • Army: 18 (43%).
  • Coast Guard: 4 (9.5%).
  • Marine Corps: 4 (9.5%).
  • Navy: 3 (7%).

I score the Government divisions as the winner in 20 of these 42 cases, the defense as the winner in 21 cases, and 1 case with no winner (Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page), in which CAAF concluded that it has no jurisdiction over an Article 6b petition).

 

Part II: Dissents

Of the 39 authored opinions of the term, 24 were unanimous (no separate opinions). The Government divisions prevailed in exactly half (12) of these. The two per curiam opinions also split, with the Government division winning in one, and the defense winning in the other.

An additional 3 cases involved only separate concurring opinions, for a total of 27 authored opinions with no dissents (69% of the total of 39 authored opinions). The Government divisions prevailed in 16 out of these 27 (59%) .

The other 12 authored decisions involved a total of 14 separate dissenting opinions. Broken down by judge:

  • Chief Judge Stucky dissented 5 times and wrote 5 dissenting opinions.
  • Judge Ryan dissented 2 times and wrote 2 dissenting opinions.
  • Judge Ohlson dissented 2 time and wrote 2 dissenting opinions.
  • Judge Sparks dissented 2 times and wrote 2 dissenting opinions.
  • Senior Judge Erdmann dissented 3 times and wrote 2 dissenting opinions.

Eight opinions drew just 1 dissenting vote (Bartee, Claxton, Haverty, Lopez, Mitchell, Nieto, Ramos, Sager, and Sewell) and three cases drew 2 (Boyce, Forrester, and Randolph). In all but one of these every judge who dissented authored a separate dissenting opinion. The exception was Forrester, in which Senior Judge Erdmann only joined Judge Ohlson’s dissenting opinion. Of the two other cases with more than one dissenting judge: In Boyce, Chief Judge Stucky and Judge Ryan dissented, each writing separately; in Randolph, Senior Judge Erdmann and Judge Sparks dissented, each writing separately but with Judge Sparks also joining Senior Judge Erdmann’s dissent.

These dissents generally favored the Government divisions, as follows:

  • Chief Judge Stucky dissented 5 times, siding with the Government division in all 5.
  • Judge Ryan dissented 2 times, siding with the Government division in both.
  • Judge Ohlson dissented 2 times, siding with the defense in both.
  • Judge Sparks dissented 2 times, siding with the Government division in 1 (the other was Randolph).
  • Senior Judge Erdmann dissented 3 times, siding with the defense in 2 (the third was Randolph).

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 8 cases, drawing 1 dissent (and 2 concurring opinions).

Judge Ryan wrote for the court in 9 cases, of which 2 drew dissents.

Senior Judge Erdmann wrote for the court in 6 cases, of which 2 drew dissents.

Judge Ohlson wrote for the court in 9 cases, of which 3 drew dissents.

Chief Judge Stucky wrote for the court in 7 cases, of which 4 drew dissents. If there’s an award for dissents, Chief Judge Stucky won it handily as he both dissented the most and drew the most dissents.

 

Part III: Individual Judge Statistics

Chief Judge Stucky wrote a total of 14 opinions this term: 7 opinions of the court, 2 concurring opinions, and 5 dissenting opinions. He was with the majority in 34 out of 39 cases with authored opinions (87%). Of these, but excluding Randolph, Chief Judge Stucky voted for the Government division in 24 out of 38 cases (63%), dissenting from none of the Government divisions’ victories.

Judge Ryan wrote a total of 13 opinions this term: 9 opinions of the court, 2 concurring opinions, and 2 dissenting opinions. She was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Ryan voted for the Government division in 21 out of 38 cases (55%), dissenting from none of the Government divisions’ victories.

Judge Ohlson wrote a total of 11 opinions this term: 9 opinions of the court, zero concurring opinions, and 2 dissenting opinions. He was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Ohlson voted for the Government division in 17 out of 38 cases (45%), dissenting from two of the Government divisions’ victories.

Judge Sparks wrote a total of 11 opinions this term: 8 opinions of the court, 1 concurring opinion, and 2 dissenting opinions. He was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Sparks voted for the Government division in 20 out of 38 cases (53%), dissenting from none of the Government divisions’ victories.

Senior Judge Erdmann wrote a total of 9 opinions this term: 6 opinions of the court, zero concurring opinions, and 3 dissenting opinions. He was with the majority in 35 out of 39 cases (90%) (he joined Judge Ohlson’s dissent in Forrester). Of these, but excluding Randolph, Senior Judge Erdmann voted for the Government division in 16 out of 38 cases (42%), dissenting from three of the Government divisions’ victories.

 

Part IV: Civilian Counsel and the Appellate Defense Divisions

Civilian defense counsel argued 5 of the 42 cases (12%) argued at CAAF this term: Ahern, Boyce, Gomez, Reese, and Richards. Of these, the defense won in 2 (40%).

In cases argued by military appellate defense counsel, the defense won in 19 out of 37 (51%) (this includes Randolph, which I consider to be a loss for both sides).

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

Of the 19 cases where military defense counsel argued and won:

  • 3 were Air Force cases (Bowen, Carter, and Fetrow)
  • 12 were Army cases (Brantley, Commisso, Gurczynski, Haverty, Hendrix, Hukill, Lopez, Mitchell, Nieto, Swift, Tucker, and Wilson)
  • 2 were Navy cases (Darnall and Sager)
  • 1 was a Marine Corps case (Chikaka).
  • 1 was a Coast Guard case (Ramos).

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

  • Army Appellate Defense: 12 out of 18 (66%).
  • Navy-Marine Corps Appellate Defense: 3 out of 7 (43%).
  • Coast Guard Appellate Defense: 1 out of 4 (25%).
  • Air Force Appellate Defense: 3 out of 13 (23%).

 

Part V: Certified and Specified Issues

CAAF heard oral argument in 4 cases with issues certified by a Judge Advocate General: Carter, Fetrow, Gurczynski, and Mitchell. Of these 4 cases, 2 were from the Army and 2 were from the Air Force.

The Government division lost in every one (three by unanimous decision, one with a lone dissent).

CAAF specified issues for oral argument in 8 cases (Bowen, Boyce, Haverty, Lopez, Ramos, Randolph v. HV, Gurczynski, and Swift). These specified issues were dispositive in every case except for Swift (where CAAF did not reach the specified question of legal sufficiency).

CAAF also decided 4 cases with Grostefon issues this term (Erikson, Nieto, Sewell, and Wilson). Of these, the defense won in 2.

 

Part VI: The Courts of Criminal Appeals

Of the 42 cases heard at oral argument in the 2017 term, the CCAs were represented as follows:

  • 13 (31%) were from the Air Force CCA.
  • 18 (43%) were from the Army CCA.
  • 4 (9.5%) were from the Coast Guard CCA.
  • 7 (16.5%) were from the Navy-Marine Corps CCA.

Of these:

  • The Air Force CCA was reversed in 3 out of 13 cases (23%) (includes Dockery).
  • The Army CCA was reversed in 10 out of 18 cases (56%).
  • The Coast Guard CCA was reversed in 2 out of 4 cases (50%).
  • The Navy-Marine Corps CCA was reversed in 3 out of 7 cases (43%).

CAAF also reversed 20 CCA decisions by summary disposition. Of these 20 summary reversals:

  • 8 were from the Air Force CCA (6 of which were Hills/Hukill trailers).
  • 11 were from the Army CCA (9 of which were Hukill trailers).
  • 1 was from the Navy-Marine Corps CCA (Hills trailer).

These numbers make the Army CCA the most-reversed court of the term. An interesting factor, however, is that all of CAAF’s reversals of the Army CCA were in cases where the CCA denied relief to an individual appellant. Both cases certified by the Judge Advocate General of the Army, in contrast, resulted in CAAF affirming the CCA’s decision. Both of those cases were prosecution interlocutory appeals (Mitchell and Gurczynski).

 

Part VII: Extraordinary Relief

CAAF considered 18 petitions for extraordinary relief during the 2017 term, with one two remaining undecided at the end of the term (a writ-appeal on a coram nobis petition in the Gray capital case, discussed here) (update: and a writ-appeal in an Air Force case, Hassett, that appears to be still pending automatic review at the CCA). The pending petition in Gray is functionally a duplicate of a prior petition (which CAAF allowed to be replaced with the most-recent filing).

The other 15 petitions include 5 writ-appeals, 1 habeas petition, 5 petitions for writs of mandamus, 1 petition for a writ of prohibition, and 3 original writ petitions.

CAAF denied them all.

Some notable petitions include Randolph (the court heard oral argument and concluded that it lacks jurisdiction), two petitions in Labella (the first untimely, the second denied), two in the Bergdahl case (both denied – losses number 6 and 7 for Bergdahl), and a petition in Hennis (denied without prejudice).

 

Part VIII: A Preview of the 2017 Term

CAAF begins the 2016 term with a relatively full docket.

32 33 cases will be carried over from the 2016 term, the first of these cases to be granted review was Acevedo, granted on April 14, 2017 (discussed here).

These 32 cases include one capital appeal (Hennis), in which CAAF will hear oral argument on a motion to compel funding (on the first oral argument date of the term).

These 32 cases also include 5 certified cases: 3 from the Army (Gould, Jacobsen, and Simpson), 1 from the Air Force (Katso), and 1 from the Marine Corps (Hale).

There are also 2 cases in which CAAF granted review but ordered no briefs: Luna and Moore (a Hills trailer).

Speaking of Hills (our #3 Military Justice Story of 2016), for the third term in a row CAAF will address the improper use of charged offenses as proof of an accused’s propensity to commit the same charged offenses. The court will review the Army CCA’s decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (CAAFlog case page), that dissected Hills and identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes. Guardado will be the second case argued this term.

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

CAAF’s schedule includes 30 oral argument dates for this coming term – a larger than average number and an increase over the 27 scheduled dates at the beginning of last term (of which only 23 were actually used). The court typically hears two oral arguments per day, suggesting that it anticipates hearing upwards of 60 oral arguments this coming term. That would be the most oral arguments since FY08, as shown by this chart from CAAF’s FY16 Annual Report:As always, we will track and analyze the court’s activity as the term develops.

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

This year, instead of a series of posts, the analysis is presented in this single post. I’ve also added a section at the end with a preview of the term ahead.

 

Part I: Overview

CAAF heard oral argument in 28 cases in the 2015 term and issued 29 authored opinions of the court. Summaries of each case, with links to CAAFlog case pages, are available on the September 2015 Term page.

Notably, this might be the smallest number of arguments before CAAF since the court was established (as the CMA) in 1951. The court’s statistics are typically reported on a fiscal year (FY) basis (October 1 to September 30), and I can easily find totals for every year since FY84. The FY with the next smallest number of oral arguments was FY14 (roughly equivalent to the September 2013 Term). That year the court heard 32 arguments – nearly 15% more than this term’s 28.

CAAF also also issued summary dispositions in 28 cases in the 2015 term, including 5 trailers to the court’s blockbuster decision prohibiting the use of charged offenses for propensity purposes in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (CAAFlog case page).

Of the 29 authored opinions of the court:

  • Chief Judge Erdmann wrote 6.
  • Judge Stucky wrote 7.
  • Judge Ryan wrote 8.
  • Judge Ohlson wrote 7.
  • Judge Sparks wrote 1.

Notably, Judge Sparks joined the court mid-term, when his nomination was confirmed by the Senate on April 5 (discussed here). He then participated in the last four cases argued in the term: Hills, Evans, EV, and Howell. Judge Sparks authored the majority opinion in Howell.

Prior to Judge Sparks’ confirmation, numerous visiting judges filled the vacancy (discussed here). They included:

  • Senior Judge Cox (C.A.A.F.), who participated in eight cases.
  • Senior Judge Lamberth (D.D.C), who participated in seven cases.
  • Senior Judge Sentelle (D.C. Cir.), who participated in five cases.
  • Judge Diaz (4th Cir.), who participated in four cases.
  • Chief Judge Whitney (N.D. N.C.), who participated in two cases.

Notably, the seven cases for Senior Judge Lamberth includes Howell, in which Judge Ryan recused herself.

The 29 authored decisions break down by service as follows:

  • Air Force: 9 (31%).
  • Army: 7 (24%).
  • Coast Guard: 2 (7%).
  • Marine Corps: 8 (28%).
  • Navy: 3 (10%).

The Government had a remarkably bad year at CAAF.

Excluding EV (which was a defense win but is not fairly seen as a Government loss), the Government prevailed in just 11 out of 28 decisions (a pitiful 39%). I counted the following cases as wins for the Government (in order of decision as listed here): LaBella, Busch, Captain, Wilder, Rapert, Caldwell, Evans, Martin, Harrell, Howell, and Sterling.

 

Part II: Dissents

Of the 29 authored opinions of the term, 20 were unanimous (no separate opinions). The Government prevailed in just 5 of those 20 (one of the 20 is EV, which is not included in the Government’s five).

An additional 2 cases involved only separate concurring opinions, for a total of 22 cases with no dissents (76% of the total of 29). Of all cases with no dissents, but excluding EV, the Government prevailed in just 6 out of 21 (29%) .

The other 7 cases involved a total of 8 separate dissenting opinions. Broken down by judge:

  • Chief Judge Erdmann dissented 2 times but wrote no dissenting opinions.
  • Judge Stucky dissented 5 times and wrote 5 dissenting opinions.
  • Judge Ryan dissented 2 times but wrote no dissenting opinion.
  • Judge Ohlson dissented 4 times and wrote 3 dissenting opinions.
  • Judge Sparks dissented in no cases.

None of the visiting judges at CAAF dissented, however Senior Judge Cox did write a concurring opinion in Harrell.

These dissents favored the defense as follows:

  • Chief Judge Erdmann sided with the defense in both of his dissents.
  • Judge Stucky sided with the defense in 3 out of 5 dissents (60%).
  • Judge Ryan sided with the defense in both of her dissents.
  • Judge Ohlson sided with the defense in 2 out of 4 dissents (50%).
  • Judge Sparks had no dissents.

Of the 7 cases with dissents, only 1 case involved a lone dissenter: Judge Ohlson in Sterling.

Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents and who dissented. In order of least-dissenters to most:

Judge Stucky wrote for the court in 7 cases, drawing zero dissents (and zero concurring opinions).

Chief Judge Erdmann wrote for the court in 6 cases, of which only one (17%) had dissenters. Judge Stucky, joined by Judge Ryan, dissented in Busch.

Judge Ohlson wrote for the court in 7 cases, of which two (29%) had dissenters. Judge Stucky authored dissents in both, and he was joined by Chief Judge Erdmann in Martin, and by Judge Ryan in Rapert.

Judge Ryan wrote for the court in 8 cases, of which three (38%) had dissents. Judges Stucky and Ohlson authored separate decisions in Killion, Judge Ohlson dissented in Sterling, and Judge Stucky was joined by Judge Ohlson in a dissenting opinion in Chin.

Judge Sparks wrote for the court in one case, and it drew dissenters (putting him at 100%). Judge Ohlson, joined by Chief Judge Erdmann, dissented in Howell.

Judge Stucky dissented the most but was least likely to draw dissents when he wrote for the court. This distinction was held by then-Chief Judge Baker in the last (and his final) two terms: 2014 and 2013.

 

Part III: Individual Judge Statistics

Chief Judge Erdmann wrote a total of 6 opinions this term: 6 opinions of the court, zero concurring opinions, and zero dissenting opinions. He was with the majority in 27 out of 29 cases (93%). Excluding EV, Chief Judge Erdmann voted for the Government in 9 out of 28 cases (32%), dissenting from 2 of the Government’s 11 victories.

Judge Stucky wrote a total of 13 opinions this term: 7 opinions of the court, 2 concurring opinions, and 4 dissenting opinions. He was with the majority in 24 out of 29 cases (83%). Excluding EV, Judge Stucky voted for the Government in 10 out of 28 cases (36%), dissenting from 3 of the Government’s 11 victories and dissenting from 2 of the Government’s 17 losses.

Judge Ryan wrote a total of 8 opinions this term: 8 opinions of the court, zero concurring opinions, and zero dissenting opinions. As noted above, she recused herself from Howell. She was with the majority in 26 out of 28 cases (93%). Excluding EV, Judge Ryan voted for the Government in 8 out of 27 cases (30%), dissenting from 2 of the Government’s 10 victories (Howell was the Government’s 11th victory).

Judge Ohlson wrote a total of 10 opinions: 7 opinions of the court, zero concurring opinions, and 3 dissenting opinions. He was with the majority in 25 out of 29 cases (86%). Excluding EV, Judge Ohlson voted for the Government in 11 out of 28 cases (39%), dissenting from 2 of the Government’s 11 victories and dissenting from 2 of the Government’s 17 losses.

Judge Sparks participated in only 4 cases. He wrote just one opinion: for the court in Howell. He was with the majority in all 4 cases in which he participated, voting for the Government in two cases and for the defense in the other two.

The visiting judges at CAAF all voted with the majority in every case in which they participated. Only Senior Judge Cox wrote an opinion: a concurring opinion in Harrell.

 

Part IV: Civilian Counsel and the Appellate Defense Divisions

Civilian defense counsel argued 6 of the 28 cases (21%) argued at CAAF this term: Witt, Harrell, Hoffman, Pease, Riggins, and Sterling. Of these, the defense won in 4 (66%).

Notably, one of these civilian defense counsel – Mr. Brian Mizer who successfully argued in Witt – is employed by the Government, in the Air Force Legal Operations Agency.

Also of note, three different civilian Government counsel argued a total of 5 cases at CAAF this term: Witt, Sterling, LaBella, Williams, and Cooley. Of these, the Government won in 2 (40%).

In cases argued by military appellate defense counsel, the Government won in 9 out of 22 (41%).

Of the 13 cases where military defense counsel argued and won:

  • 5 were Air Force cases (Williams, Killion, Gay, Atchak, and Chin).
  • 3 were Army cases (Hills, Gifford, and Henning).
  • 2 were Coast Guard cases (Cooley and Rogers)
  • 1 was a Marine Corps case (EV).
  • 2 were Navy cases (Bess and Clark).

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

  • Air Force Appellate Defense: 5 out of 7 (71%).
  • Army Appellate Defense: 3 out of 6 (50%).
  • Coast Guard Appellate Defense: 2 out of 2 (100%).
  • Navy-Marine Corps Appellate Defense: 3 out of 7 (43%).

 

Part V: Certified and Specified Issues

CAAF heard oral argument in 10 cases with issues certified by one of the Judge Advocates General: Atchak, Chin, Clark, Cooley, Gay, Howell, Martin, Pease, Sterling, and Williams. The court also resolved one certified case by summary disposition (Arnold, a Quick trailer). In total the court acted in 11 cases with certified issues this term.

Of those 11 cases, 4 (36%) were from the Air Force. That’s a dramatic departure from the prior two terms, when the Judge Advocate General of the Air Force was responsible for a whopping 78% and 82% of the certified cases decided by CAAF. This term it was the Judge Advocate General of the Navy who certified the most cases – with 6 of the 11 (55%). Two of those certifications, however, occurred after CAAF granted review of the case (in Martin and Sterling)

The Government won in 3 of the 11 cases with certified issues (27%): Howell, Martin, and Sterling. Two of these (Martin and Sterling) involved certifications made after CAAF granted review. The certified issue was dispositive in Martin.

CAAF specified issues for oral argument in 12 cases: Bess, Captain, EV, Evans, Gay, Gifford, Harrell, LaBella, Rogers, Sterling, Williams, and Witt. These specified issues were dispositive in every case except for Gay.

CAAF also decided two cases with Grostefon issues this term: one summarily (Hopkins) and the other after hearing oral argument (Caldwell). Four other cases with Grostefon issues (discussed here) remain on CAAF’s docket for the 2016 term.

 

Part VI: The Courts of Criminal Appeals

Of the 29 cases decided by authored opinions this term, the CCAs were represented as follows:

  • 9 were from the Air Force CCA.
  • 7 were from the Army CCA.
  • 2 were from the Coast Guard CCA.
  • 11 were from the Navy-Marine Corps CCA.

Of these:

  • The Air Force CCA was reversed in 3 out of 9 cases (33%).
  • The Army CCA was reversed in 4 out of 7 cases (57%).
  • The Coast Guard CCA was reversed in 1 out of 2 cases (50%).
  • The Navy-Marine Corps CCA was reversed in 5 out of 11 cases (45%).

This only tells part of the story however, because CAAF also decided 28 cases by summary disposition. Of these summary dispositions:

  • 4 were from the Air Force CCA.
  • 21 were from the Army CCA.
  • 1 was from the Coast Guard CCA.
  • 2 were from the Navy-Marine Corps CCA.

Of these summary dispositions:

  • The Air Force CCA was reversed in 4 out of 4 cases (100%).
  • The Army CCA was reversed in 13 out of 21 cases (62%).
  • The Coast Guard CCA was reversed in 0 out of 1 case.
  • The Navy-Marine Corps CCA was reversed in 0 out of 2 cases.

 

Part VII: A Preview of the 2016 Term

CAAF begins the 2016 term with a full docket.

31 cases will be carried over from the 2015 term, the first of these cases to be granted review was Nieto, granted on March 16, 2016 (discussed here).

These 31 cases include a writ-appeal petition filed in Randolph v. H.V. and the United States (discussed here)The substantive issue in the case is the Coast Guard CCA’s decision (on an alleged victim’s Article 6b appeal) that significantly expanded the scope of Mil. R. Evid. 513, the psychotherapist-patient privilege (CCA decision discussed here). CAAF, however, won’t consider that issue will consider more than just that issue. Because the accused pursued a writ-appeal (instead of, perhaps, an original writ), CAAF’s review will focus on begin with whether the court has jurisdiction to consider such an appeal in light of the restrictive language of Article 6b as recently interpreted in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page).

These 31 cases also include 3 cases with a total of 8 trailers:

United States v. Tso, No. 16-0497/MC (grant discussed here), is a trailer to United States v. Bartee, No. 16-0391/MC (grant discussed here), in which CAAF will revisit the improper exclusion of members on the basis of rank.

United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), questions whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. The case ended the term with three trailers: United States v. Brown, No. 16-0714/AR (grant discussed here), United States v. Echols, No. 16-0720/AR, and United States v. Bustamonte, No. 16-0693/AR (grants discussed here).

And in United States v. McClour, No. 16-0455/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that commands them that they must (as opposed to the more-common instruction that members should) find the accused guilty if the prosecution has proven the offense beyond a reasonable doubt. The case ended the term with four trailers, three from the Air Force and one from the Marine Corps: United States v. Taylor, No. 16-0482/AF (grant discussed here), United States v. Nickens, No. 16-0565/MC (grant discussed here), United States v. Smith, No. 16-0579/AF, and United States v. Kmet, No. 16-0674/AF (grants discussed here).

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

CAAF’s schedule includes 27 oral argument date for this coming term – a larger than average number. The court typically hears two oral arguments per day, suggesting that it anticipates hearing more than 50 oral arguments this coming term. This would be the most oral arguments since FY08, as shown by this chart from CAAF’s FY15 Annual Report:

report

Another interesting connection to 2008 is that the upcoming term returns CAAF to an October 1 – September 30 term of court (change discussed here). CAAF last changed its term (to one that ran from September 1 – August 31) effective September 1, 2008.

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

CAAF heard oral argument in 6 cases with issues certified by one of the Judge Advocates General (Muwwakkil, Quick, Katso, Piolunek, Morita, and Buford). The court resolved another 3 certified cases by summary disposition (Huey, Soto, and Bowser). In total the court acted in 9 cases with certified issues this term.

Of those 9 cases, 7 (78%) were from the Air Force. That’s a slight decrease from last term’s 82%, but still gives me reason to recall my post about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The other two certified cases this term were from the Army (Muwwakkil) and the Marines (Quick).

The Government won in 4 of the 9 certifications (44%): Katso, Piolunek, Buford, and Huey (resolved summarily as a Piolunek trailer that mooted the certified issue). Notably, Piolunek involved a cross-certification; the JAG certified an issue after CAAF granted review of the CCA’s decision. The certified issue in Piolunek was also summarily rejected by CAAF as presenting a question of fact that the court lacks jurisdiction to consider.

The court specified issues for oral argument in two cases (Gilbreath and Arness), a Marine Corps case and an Air Force case. The specified issues were dispositive in both cases.

Of the 37 cases heard at oral argument, the CCAs were represented as follows:

  • 13 were from the Air Force CCA.
  • 15 were from the Army CCA.
  • 8 were from the Navy-Marine Corps CCA.
  • 1 was from the Coast Guard CCA.

Of these:

  • The Air Force CCA was reversed in 8 out of 13 cases (62%).
  • The Army CCA was reversed in 6 out of 16 cases (38%).
  • The Navy-Marine Corps CCA was reversed in 4 out of 8 cases (50%).
  • The Coast Guard CCA was reversed in 0 out of 1 case.

Civilian defense counsel argued 6 of the 37 cases (16%) argued at CAAF this term: Gutierrez, Morita, Newton, Piolunek, Plant, and Sullivan. Of these, the Government won in 3 (50%).

In cases argued by military defense counsel, the Government won in 17 out of 31 (55%).

Of the 14 cases where military defense counsel argued and won:

  • 2 were Air Force cases (Jones and Morita Nettles).
  • 7 were Army cases (Adams, Bennitt, Blouin, Keefauver, Muwwakkil, Peters, and Stellato).
  • 3 were Marine Corps cases (Gilbreath, Quick, and Vargas).
  • 2 were Navy cases (Simmermacher and Woods).

So the success rates for military defense counsel at each of the four appellate defense divisions was:

  • Air Force Appellate Defense: 2 out of 9 (22%).
  • Army Appellate Defense: 7 out of 14 (50%).
  • Navy-Marine Corps Appellate Defense: 5 out of 8 (63%).
  • Coast Guard Appellate Defense: N/A (only Coast Guard case argued by a civilian).

Chief Judge Baker wrote a total of 16 opinions this term: 8 opinions of the court, 3 concurring opinions, and 5 dissenting opinions. He was with the majority in 30 out of 37 cases (81%). He voted for the Government in 23 out of 37 cases (62%), dissenting from 2 of the Government’s 20 victories and concurring in 2 of them.

Judge Stucky wrote a total of 16 opinions this term: 7 opinions of the court, 5 concurring opinions, and 4 dissenting opinions. He was with the majority in 32 out of 37 cases (86%). He voted for the Government in 19 out of 37 cases (51%), dissenting from 3 of the Government’s 20 victories and concurring in 2 of them.

Judge Erdmann wrote a total of 11 opinions this term: 7 opinions of the court, 2 concurring opinions, and 2 dissenting opinions. He was with the majority in 32 out of 37 cases (86%). He voted for the Government in 15 out of 37 cases (41%), dissenting from 5 of the Government’s 20 victories and concurring in 2 of them.

Judge Ryan wrote a total of 10 opinions this term: 7 opinions of the court, 1 concurring opinion, and 2 dissenting opinions. She was with the majority in 33 out of 37 cases (89%). She voted for the Government in 24 out of 37 cases (65%), dissenting from none of the Government’s 20 victories and concurring in 1 of them.

Judge Ohlson wrote a total of 10 opinions: 8 opinions of the court and 2 dissenting opinions. He was in the majority in 33 out of 36 cases (92%). He voted for the Government in 18 out of 36 cases (50%), dissenting from 2 of the Government’s 20 victories. Of note, he recused himself from one case (that the Government won).

Senior Judge Cox participated in 1 case this term, siding with the Government in CAAF’s unanimous decision in Newton.

Of the 37 authored opinions of the term, 14 were unanimous (no separate opinions). The Government prevailed in 7 of these 14. An additional 9 cases involved only separate concurring opinions, for a total of 23 cases with no dissents (62% of the total of 37 cases). Of these 23 cases with no dissents, the Government prevailed in 13 (57%).

The other 14 cases involved a total of 15 separate dissenting opinions. Broken down by judge:

  • Chief Judge Baker dissented 7 times and wrote 5 dissenting opinions.
  • Judge Erdmann dissented 5 times and wrote 2 dissenting opinions.
  • Judge Stucky dissented 5 times and wrote 4 dissenting opinions.
  • Judge Ryan dissented 4 times and wrote 2 dissenting opinion.
  • Judge Ohlson dissented 3 times and wrote 2 dissenting opinions.

These dissents favored the Government as follows:

  • Chief Judge Baker sided with the Government in 5 out of 7 dissents (71%).
  • Judge Stucky sided with the Government in 4 out of 5 dissents (80%).
  • Judge Ryan sided with the Government in 4 out of 4 dissents (100%).
  • Judge Ohlson sided with the Government in 2 out of 3 dissents (67%).
  • Judge Erdmann sided with the Government none of his 5 dissents (0%).*

* Corrected. I originally wrote this backwards; that Judge Erdmann sided with the Government in all of his dissents. 

Senior Judge Cox participated in one case (Newton), which was decided in a unanimous decision.

Of the 14 cases with dissents, only 4 cases involved lone dissenters. Of these 4 cases, Chief Judge Baker was the lone dissenter in 2 (Vargas and Bannitt), siding with the Government in both. Judge Erdmann was the lone dissenter in 1 (Sullivan), siding with the Defense. Judge Ohlson was the lone dissenter in 1 (Katso), siding with the Defense.

Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents and who dissented. In order of least-dissenters to most:

Chief Judge Baker wrote for the court in 8 cases, of which only 1 (13%) had dissenters. That was Judges Stucky and Ryan (both writing separately) in Peters.

Judge Stucky wrote for the court in 7 cases, of which 1 (14%) had dissenters. Judge Ohlson dissented in McFadden, joined by Chief Judge Baker.

Judge Ryan wrote for the court in 7 cases, of which 2 (29%) had dissenters. Chief Judge Baker dissented in one case (Bennitt) and Judge Ohlson dissented in the other (Katso).

Judge Erdmann wrote for the court in 7 cases, of which 4 (57%) had dissenters. Judge Stucky joined by Judge Ohlson dissented in 1 case (Quick), and Chief Judge Baker dissented in the other 3 cases (Blouin, Adams, and Vargas) joined by Judge Ryan in 2 (Blouin and Adams).

Judge Ohlson wrote for the court in 8 cases, of which 6 (75%) had dissenters. Judge Erdmann dissented in 5 cases (Akbar, Buford, Schloff, Torres, and Sullivan), Judge Stucky dissented in 3 cases (Buford, Schloff, and Torres), Chief Judge Baker dissented in 2 cases (Akbar and Plant), and Judge Ryan dissented in 1 case (Plant).

Interestingly, just like last year, while Chief Judge Baker dissented more than any other judge (7 in total – authoring separate opinions in 5), he was least likely to draw dissents when he wrote for the court.

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

CAAF heard oral argument in 37 cases this term and issued 37 authored opinions of the court. Summaries of each case, with links to CAAFlog case pages, are available on the September 2014 Term page.

The court also issued summary dispositions in 46 cases, including 6 cases involving the appointment of Mr. Lawrence Soybel to the Air Force CCA (see United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)), and 7 cases involving the brief revival of the ultimate offense doctrine at the Army CCA (see United States v. Phillips, 74 M.J. 20 (C.A.A.F. Jan. 6, 2015) (CAAFlog case page)).

Of the 37 authored opinions of the court:

  • Chief Judge Baker wrote 8.
  • Judge Ohlson wrote 8.
  • Judge Erdmann wrote 7.
  • Judge Stucky wrote 7.
  • Judge Ryan wrote 7.

Notably, Chief Judge Baker’s appointment to CAAF expired on July 31 and Judge Erdmann is now the Chief Judge of CAAF. However, for these stats, I will identify them as Chief Judge Baker and Judge Erdmann.

Judge Ohlson recused himself from one case this term: United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page), in which CAAF interpreted the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States. Prior to joining the court Judge Ohlson worked in the Department of Justice. Senior Judge Cox participated in CAAF decision in that case in place of Judge Ohlson

The 37 authored decisions break down by service as follows:

  • Army: 15 (41%).
  • Air Force: 13 (34%).
  • Navy: 4 (11%).
  • Marine Corps: 4 (11%).
  • Coast Guard: 1 (3%).

Readers may recall that in the 2013 term CAAF did not hear oral argument or issue an authored opinion in any Navy cases.

The court had a less active extraordinary writ docket in the 2014 term than in the 2013 term (when it considered 23 petitions). In the 2014 term the court considered 19 petitions (12 writ-appeals, 4 habeas petitions, 1 petition for mandamus, 1 petition for relief pendente lite, and 1 petition filed under the All Writs Act and dismissed for lack of jurisdiction). It denied all of them.

Calling winners and losers can be tough, but I’m calling 20 (54%) of the term’s authored opinions as wins for the Government. Those 19 cases are: Phillips, Piren, Castillo, Newton, McFadden, Buford, Piolunek, Olson, Norman, Torres, Castillo, Carter, Ward, Katso, McIntosh, Murphy, Schloff, Arness, Akbar, and Sullivan.

Broken down by service, among authored opinions the Government won in:

  • 8 out of 13 Air Force cases (62%)
  • 8 out of 15 Army cases (53%)
  • 2 out of 4 Navy cases (50%)
  • 1 out of 4 Marine Corps cases (25%)
  • The single Coast Guard case (100%)

Each of the judges sided with the Government as follows:

  • Judge Ryan: 24 out of 37 (64%)
  • Chief Judge Baker: 23 out of 37 (62%)
  • Judge Stucky: 19 out of 37 (51%)
  • Judge Ohlson 18 out of 36 (50%)
  • Judge Erdmann 15 out of 37 (41%)
  • Senior Judge Cox: 1 out of 1 (100%)

CAAF oral argument schedule for the September 2014 term originally included one more oral argument day, on June 9, 2015. However, Chief Judge Baker made a comment at the end of Tuesday’s oral arguments that implied that the court would not hear any more cases this term, and the court’s website no longer shows a June 9 date.

So it seems that the 2014 term’s oral argument calendar is complete. CAAF heard 36 37 (see note in comments) arguments this term. CAAF’s FY14 annual report shows how this number of arguments compares to prior years:

FY14 Oral Arguments Per Year

The court issued decisions in 18 of those. Here is a brief synopsis of the issues in the undecided 19 cases (listed in the order argued):

Read more »

CAAF heard oral argument in 4 cases with issues certified by one of the Judge Advocates General under the authority granted in Article 67(a)(2) (Finch, Hines, McPherson, and Wilson). But that only tells part of the story, as the court resolved another 7 certified cases by summary disposition (Arriaga, Burns, Lindgren, McDowell, McIntyre, Seton, and Sickels). In total the court decided 11 cases with certified issues this term.

Of those 11 cases, 9 (82%) were from the Air Force. That’s in part due to the Air Force certification binge earlier this spring that prompted me to write about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The other two cases were from the Army.

The Government won in only 2 out of the 11 certifications (18%): Hines (an Army case where the court unanimously sided with the Government) and Finch (an Air Force case where the court was sharply divided). Both of those cases were heard at oral argument. Notably, Finch involved a cross-certification; the JAG certified an issue after CAAF granted review of the CCA’s decision.

The court specified issues for oral argument in two cases (Moon and Moss), both from the Army. The specified issues were dispositive in both cases.

Representation by each court of criminal appeals at CAAF was skewed towards the Army and Air Force courts (since, as noted in Part I, CAAF didn’t hear oral argument in any Navy cases this term). Of the 32 cases heard at oral argument:

  • 15 were from the Air Force CCA.
  • 14 were from the Army CCA.
  • 2 were from the Navy-Marine Corps CCA.
  • 1 was from the Coast Guard CCA.

Of these:

  • The Air Force CCA was reversed in 6 out of 15 cases (40%).
  • The Army CCA was reversed in 6 out of 14 cases (43%).
  • The Navy-Marine Corps CCA was reversed in 0 out of 2 cases.
  • The Coast Guard CCA was reversed in 0 out of 1 case.

Civilian counsel argued only 4 out of the 32 cases (12.5%) argued at CAAF this term (down from 6 out of 36 last year – 17%): Leahr, MacDonald, Merritt, and Winckelmann. Of these, the Government won in 2 (50%).

In cases argued by military defense counsel, the Government won 17 out of 28 (61%).

Of the 11 cases where military defense counsel argued and won:

  • 7 were Air Force cases (Elespuru, Janssen, Knapp, McPherson, Paul, Wicks, and Wilson).
  • 4 were Army cases (Davenport, Flesher, Moon, and Warner).

So the success rates for each of the four appellate defense divisions was:

  • Air Force Appellate Defense: 7 out of 15 (47%).
  • Army Appellate Defense: 4 out of 14 (29%).
  • Coast Guard Appellate Defense: 0 out of 1 (0%).
  • Navy-Marine Corps Appellate Defense: 0 out of 2 (0%).

Last year’s numbers are here.

Unlike the voting blocs post of years past, this year I’m going to consider each judge individually.

Chief Judge Baker wrote a total of 20 opinions this term: 7 opinions of the court, 4 concurring opinions, and 9 dissenting opinions. He was in the majority in 22 out of 32 cases (69%), concurring in 4 cases. He voted for the Government in 23 out of 32 cases (72%), dissenting from 3 of the Government’s 19 (16%) victories and concurring in 2 of them.

Judge Erdmann wrote a total of 5 opinions this term, all of them opinions of the court. He was in the majority in 30 out of 32 cases (94%), joining the opinion of the court in all of them. He voted for the Government in 17 out of 32 cases (53%), dissenting from 2 of the Government’s 19 victories (10.5%) (his only 2 dissents).

Judge Stucky wrote a total of 14 opinions this term: 9 opinions of the court, 3 concurring opinions, and 2 dissenting opinions. He was in the majority in 30 out of 32 cases (94%), concurring in 3 of them. He voted for the Government in 17 out of 32 cases (53%), dissenting from 2 of the Government’s 19 victories (10.5%) (his only 2 dissents) and concurring in 2 of them.

Judge Ryan wrote a total of 11 opinions this term: 7 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. She was in the majority in 28 out of 32 cases (87.5%), concurring in 1 of them. She voted for the Government in 19 out of 32 cases (59%), dissenting from 2 of the Government’s 19 victories (10.5%) and concurring in 1 of them.

Judge Ohlson joined the court a few months into the term, and he participated in only 23 of the court’s 32 cases with authored opinions. Judge Ohlson wrote a total of 7 opinions: 4 opinions of the court and 3 dissenting opinions. He was in the majority in 20 out of 23 cases (87%), concurring in one of them. He voted for the Government in 12 out of 23 cases (52%). But Judge Ohlson participated in only 13 of the Government’s 19 victories, dissenting from 2 (15% of the 13) and concurring in 1.

Senior Judges Effron and Cox also participated in cases this term:

Senior Judge Effron participated in 8 of the court’s 32 cases with authored opinions this term (25%). He wrote 1 dissenting opinion. He was in the majority in 6 out of 8 cases (75%), concurring in none. He voted for the Government in 4 out of 8 cases (50%), and dissented from 2 Government victories.

Senior Judge Cox participated in 1 case this term, voting for the Defense and joining Chief Judge Baker’s opinion of the court in Wicks.

Of the 32 authored opinions of the term, 12 were unanimous (no separate opinions). The Government prevailed in 9 of these 12. An additional 6 cases involved only separate concurring opinions, for a total of 18 cases with no dissents (56% of the total of 32 cases). Of these 18 cases, the Government prevailed in 12 (66%).

The other 14 cases involved a total of 18 separate dissenting opinions. Broken down by judge:

  • Chief Judge Baker dissented 10 times and wrote 9 dissenting opinions.
  • Judge Ryan dissented 4 times and wrote 3 dissenting opinions.
  • Judge Ohlson dissented 3 times and wrote dissenting opinions in all 3 cases.
  • Judge Stucky dissented 2 times and wrote dissenting opinions in both cases.
  • Senior Judge Effron dissented 2 times and wrote a dissenting opinion in 1 case.
  • Judge Erdmann dissented 2 times but wrote dissenting separate opinions.

These dissents favored the Government as follows:

  • Chief Judge Baker sided with the Government in 7 out of 10 dissents (70%).
  • Judge Ryan sided with the Government in 2 out of 4 dissents (50%).
  • Judge Ohlson sided with the Government in 1 out of 3 dissents (33%).
  • Judge Stucky sided with the Government in neither of his 2 dissents (0%).
  • Senior Judge Effron sided with the Government in neither of his 2  dissents (0%).
  • Judge Erdmann sided with the Government in neither of his 2 dissents (0%).

These numbers count the dissents by Judges Stucky and Ryan in Treat as siding with the Defense.

Of the 14 cases with dissents, only 5 cases involved lone dissenters. Of these 5 cases, Chief Judge Baker was the lone dissenter in 4 (Warner, Wilson, McPherson, and Davenport), siding with the Government in each case. Judge Ohlson was the lone dissenter in 1 (Frey), siding with the Defense. No other judge was a lone dissenter.

Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents and who dissented. In order of least-dissenters to most:

Chief Judge Baker wrote for the court in 7 cases, of which only 1 (14%) had a dissenter. That was Judge Ohlson in Frey.

Judge Ryan wrote for the court in 7 cases, of which 2 (29%) had dissenters. Chief Judge Baker dissented in both of these cases and wrote separately in both. Judge Ohlson dissentedt in 1, joining the Chief Judge’s opinion.

Judge Erdmann wrote for the court in 5 cases, of which 2 (40%) had dissenters. Senior Judge Effron dissented in both cases, writing 1 separate opinion. Chief Judge Baker dissented in 1 case and wrote a separate opinion. Judge Ryan also dissented in 1 case and wrote separately.

Judge Ohlson wrote for the court in 4 cases, of which 2 (50%) had dissenters. Judge Ryan dissented in both cases, writing separately in both. Chief Judge Baker and Judge Stucky each dissented in 1 case, and each wrote a separate opinion.

Judge Stucky wrote for the court in 9 cases, of which 7 (78%) had dissenters. Chief Judge Baker dissented in all 7, writing a separate opinion in 6. Judge Ohlson dissented in 2, writing separate opinions in both. Judges Erdmann and Ryan each dissented in 1, but neither wrote separately.

Looking at last year’s dissent stats, I note that last year Chief Judge Baker was tied with Judge Stucky for most number of dissents (7 each) and Chief Judge Baker was the most likely to draw dissents when he wrote for the court (5 out of 8 – 62.5%). But this year, while Chief Judge Baker dissented more than any other judge (10 in total – authoring separate opinions in 9), he was least likely to draw dissents when he wrote for the court.

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

CAAF heard oral argument in 32 cases this term and issued 32 authored opinions of the court.

The court also issued summary dispositions in 67 cases, including 11 cases involving the comments of Marine Corps military judge Lieutenant Colonel Palmer (discussed here) and 16 cases involving the appointment of Mr. Lawrence Soybel to the Air Force Court of Criminal Appeals (see United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)).

Of the 32 authored opinions:

  • Judge Stucky wrote 9.
  • Judge Ryan wrote 7.
  • Chief Judge Baker wrote 7.
  • Judge Erdmann wrote 5.
  • Judge Ohlson wrote 4.

Judge Ohlson joined the court mid-term (discussed here), and Senior Judges Effron and Cox both participated in cases argued before Judge Ohlson’s confirmation. Senior Judge Effron participated in 8 cases and Senior Judge Cox participated in 1 case. Neither Senior Judge authored a majority opinion, however Senior Judge Effron did author a dissenting opinion (in Finch).

The service breakdown reveals an astonishing fact: CAAF did not hear oral argument or issue an authored opinion in a single Navy case. Of the 32 oral arguments and authored opinions:

  • Air Force:15 (47%).
  • Army: 14 (44%).
  • Coast Guard: 1 (3%).
  • Marine Corps: 2 (6%).
  • Navy: 0 (0%).

CAAF did issue summary dispositions in 3 Navy cases, deciding all 3 in favor of the Government. Of these 3 summary dispositions, 2 involved administrative issues (correcting the promulgating order in one case (York) and sealing an exhibit in the other (Mora)), and the third (Short) involved a question of the completeness of the record.

The court had a fairly active extraordinary writ docket, with 23 petitions (19 writ-appeals, 2 habeas petitions, and 2 petitions for mandamus). CAAF denied all of these petitions except for one: United States v. Arness, No. No. 14-8014/AF (an Air Force case in which it ordered that briefs be filed (discussed here)).

Calling winners and losers can be tough, but I’m calling 19 (59%) of the term’s authored opinions as wins for the Government. Those 19 cases are: Cimball Sharpton, Danylo, Davis, Finch, Frey, Gutierrez, Hines, Hornback, Jones, Kearns, Leahr, Lee, Mead, Moss, Passut, Payne, Talkington, Treat, and Winckelmann.

Broken down by service, among authored opinions the Government won in:

  • 7 out of 15 Air Force cases (47%)
  • 9 out of 14 Army cases (64%)
  • The single Coast Guard case (100%)
  • Both Marine Corps cases (100%)

Each of the judges sided with the Government (see note below) as follows:

  • Chief Judge Baker: 23 out of 32 (72%)
  • Judge Ryan: 19 out of 32 (59%)
  • Judge Stucky: 17 out of 32 (53%)
  • Judge Erdmann 17 out of 32 (53%)
  • Judge Ohlson 12 out of 23 (52%)
  • Senior Judge Effron: 4 out of 8 (50%)
  • Senior Judge Cox: 0 out of 1 (0%)

Note: These calculations include Judges Ryan and Stucky as siding with the Defense in Treat (CAAFlog case page), and Chief Judge Baker and Senior Judge Effron as siding with the Defense in Moss (CAAFlog case page). That said, Treat could be read as a unanimous win for the Government (as all five judges would have affirmed the conviction), and Moss could be read as a loss for both sides (as even the dissenters didn’t indicate how they would have decided the granted issues).

Compared to last year’s overview, the Government won a greater percentage of cases decided in authored opinions this year (59%) than last year (50%) (last year’s number excludes the 3 ex writ cases). If keeping a case away from CAAF is considered a win for the Government (a fair characterization I think), then the Navy had a perfect record and retained its position as the service that won the most (last year the Navy won 4 out of 5 cases – 80%). In contrast, the Air Force went from the second greatest percentage of wins last year (5 out of 8 – 62.5%) to the service that won the least this year (7 out of 15 – 47%).

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.