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.