CAAFlog » End o' Term Stats » 2010 Term Stats

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]

Retained civilian defense counsel represented the appellant in 4 of the 46 cases producing opinions of the court during the 2010 term.  The civilian defense counsel prevailed in 50%.  In cases where the appellant was represented by a military or DOD civilian appellate defense counsel, the defense prevailed in 42.86%.

During the 2009 term, certified issue cases flowed in one predominant direction:  reversal.  During that term, CAAF reversed the CCA in 5 of the 6 certified issue cases.   But during the just-completed 2010 Term, the record in certified issue cases was muddled.

During the 2010 term, CAAF decided 7 cases with certified issues.  In one of those cases — Eslinger — the certification was in essence of cross-appeal seeking affirmance of ACCA’s decision on a separate basis than that presented in the granted issue.  CAAF affirmed ACCA in that case.  In another case, Daly, CAAF didn’t reach the certified issue because it ruled for the defense on a jurisdictional basis unrelated to the issue presented by the certfication.  In one case, Hutchins, CAAF reversed NMCCA’s outcome.  In another NMCCA case, McMurrin, CAAF affirmed NMCCA, though NMCCA’s opinion practically begged CAAF to reverse its ruling.  In another case, Prince, CAAF summarily affirmed ACCA just 15 days after the oral argument.  And in two cases, Rose and Humphries, CAAF summarily remanded the case to AFCCA due to what might fairly be characterized as a technical defect in the CCA’s original opinion. 

If there’s any trend there, I’m missing it.

The service with the most cases before CAAF during the 2010 term was the Air Force, with 19.  Next was the Army, with 13.  The Navy and Marine Corps had 12.  The Coast Guard had one.

The overall reversal rate was 47.8%.

The Air Force Court was reversed in 8 of 19 cases for a 42% reversal rate.

ACCA was reversed in 7 of 14 cases for a 50% reversal rate.

NMCCA was reversed in 6 of 12 cases for a 50% reversal rate.

The Coast Guard Court was reversed in its only case for a 100% reversal rate.

Which CAAF judges were the most likely to be in dissent?  To quantify this, I looked at how often a judge wrote or joined an opinion identified as a “dissent.”  (This is a different measuring stick than I used in previous end o’ term stats posts.  For example, two judges may have joined in an opinion labeled as a “dissent” that resulted in a vote for the prevailing party.  Such a case would be included as a dissent for purposes of this analysis, but would not have been included as a 3-2 vote, since the vote for the prevailing party was 5-0).

The judge most likely to be in dissent was Judge Baker with 10.

Number 2 was Judge Stucky with 9.

Number 3 was Judge Ryan with 7.

Number 4 was Chief Judge Effron with 6.

The judge least likely to be in dissent was Judge Erdmann with 4.

CAAF issued 46 opinions of the court during its 2010 Term.  The Government prevailed in 24 (52.2%) of those cases while the defense prevailed in 22 (47.8%).

Judge Baker was the most likely to vote for the Government, doing so in 33 of the 46 cases.

Judge Stucky was the next most likely to vote for the Government, doing so 30 times.

Judge Ryan was in middle, though closer to Judges Baker and Stucky than to Chief Judge Effron and Judge Erdmann.  She voted for the Government 29 times.

Judge Erdmann was the fourth most likely to vote for the Government, doing so 22 times.

Chief Judge Effron was the lest likely to vote for the Government, doing so 20 times.

Last term, there were 10 3-2 opinions with the Government prevailing in 8.  This year, counting by votes for prevailing party, there were 11 3-2 decisions with the defense prevailing in 9.

That turn-around is striking enough by itself.  What is even more surprising is that while the defense prevailed in 9 out of 11 3-2 cases, three of CAAF’s five judges (Judge Baker, Judge Stucky, and Judge Ryan) voted for the Government in more 3-2 cases than they voted for the defense.

Overall, counting all cases including 3-2 decisions, the Government prevailed in 26 cases while the defense prevailed in 22.

Returning to our focus on 3-2 cases, Judge Erdmann was the most likely to vote for the defense, doing so in all 11 3-2 splits.  He was also the judge most likely to be on the winning side in 3-2 cases, prevailing in 9 of them.

Chief Judge Effron was the next most likely to vote for the defense in a 3-2 case, doing so in 10 of the 11 3-2 splits.  (Fosler was the only 3-2 case in which Chief Judge Effron voted for the Government.)  Not surprisingly, he was the next most likely to be in the majority in a 3-2 decision.  He was in the majority in 8 of the 3-2 cases.

The remaining three judges all voted for the Government more often than for the defense in 3-2 cases. 

Judge Ryan was the third most likely to vote with the defense in a 3-2 case, doing so 4 times.  She was also the next most likely to be in the majority of a 3-2 decision.  She was in the majority in 6 of the 11 3-2 cases.

Judges Baker and Stucky both voted for the defense in 3 of the 11 3-2 cases.  And both of them were in the majority in 5 of the 11 3-2 cases.

The most likely combination of judges to form a 3-2 majority was a tie.  Chief Judge Effron, Judge Erdmann and Judge Ryan did so 3 times.  Chief Judge Effron, Judge Baker, and Judge Erdmann also did so 3 times.

The most likely combination of judges to be in dissent in a 3-2 case was also a tie.  Judges Baker and Stucky joined in 3 dissents as did Judges Stucky and Ryan.

This post will pick the lowest hanging of the end o’ term fruit.  More serious number crunching will come later in the weekend.

CAAF issued 46 opinions of the court during its 2010 term.  Five of those were per curiam opinions, leaving 41 authored opinions to spread among the court’s five judges.  Just like last term, the authored opinions weren’t evenly distributed.

Like last year, Judge Erdmann led the CAAF herd with 10 authored opinions.  Last year, Judge Ryan was tied for second with Judge Stucky, each of whom authored 9 opinions of the court.  Judge Ryan once again came in second this year with 9 authored opinions, but Judge Stucky dropped to a tie for fourth place with 7.  Judge Baker took the bronze this year with 8 authored opinions, 2 more than last term.  Last year, Chief Judge Effron authored the fewest opinions of the court.  This term he authored two more than last term and tied for fourth with Judge Stucky, each  with 7 opinions of the court this term.