CAAFlog » End o' Term Stats » 2013 Term Stats

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).