CAAFlog » End o' Term Stats » 2012 Term Stats

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%)