CAAFlog » End o' Term Stats » 2011 Term Stats

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.