It’s time again for our annual tradition of end-of-term number crunching.
This year, instead of a series of posts, the analysis is presented in this single post. I’ve also added a section at the end with a preview of the term ahead.
Part I: Overview
CAAF heard oral argument in 28 cases in the 2015 term and issued 29 authored opinions of the court. Summaries of each case, with links to CAAFlog case pages, are available on the September 2015 Term page.
Notably, this might be the smallest number of arguments before CAAF since the court was established (as the CMA) in 1951. The court’s statistics are typically reported on a fiscal year (FY) basis (October 1 to September 30), and I can easily find totals for every year since FY84. The FY with the next smallest number of oral arguments was FY14 (roughly equivalent to the September 2013 Term). That year the court heard 32 arguments – nearly 15% more than this term’s 28.
CAAF also also issued summary dispositions in 28 cases in the 2015 term, including 5 trailers to the court’s blockbuster decision prohibiting the use of charged offenses for propensity purposes in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (CAAFlog case page).
Of the 29 authored opinions of the court:
Chief Judge Erdmann wrote 6.
- Judge Stucky wrote 7.
- Judge Ryan wrote 8.
Judge Ohlson wrote 7.
Judge Sparks wrote 1.
Notably, Judge Sparks joined the court mid-term, when his nomination was confirmed by the Senate on April 5 (discussed here). He then participated in the last four cases argued in the term: Hills, Evans, EV, and Howell. Judge Sparks authored the majority opinion in Howell.
Prior to Judge Sparks’ confirmation, numerous visiting judges filled the vacancy (discussed here). They included:
- Senior Judge Cox (C.A.A.F.), who participated in eight cases.
- Senior Judge Lamberth (D.D.C), who participated in seven cases.
- Senior Judge Sentelle (D.C. Cir.), who participated in five cases.
- Judge Diaz (4th Cir.), who participated in four cases.
- Chief Judge Whitney (N.D. N.C.), who participated in two cases.
Notably, the seven cases for Senior Judge Lamberth includes Howell, in which Judge Ryan recused herself.
The 29 authored decisions break down by service as follows:
Air Force: 9 (31%).
Army: 7 (24%).
Coast Guard: 2 (7%).
Marine Corps: 8 (28%).
Navy: 3 (10%).
The Government had a remarkably bad year at CAAF.
Excluding EV (which was a defense win but is not fairly seen as a Government loss), the Government prevailed in just 11 out of 28 decisions (a pitiful 39%). I counted the following cases as wins for the Government (in order of decision as listed here): LaBella, Busch, Captain, Wilder, Rapert, Caldwell, Evans, Martin, Harrell, Howell, and Sterling.
Part II: Dissents
Of the 29 authored opinions of the term, 20 were unanimous (no separate opinions). The Government prevailed in just 5 of those 20 (one of the 20 is EV, which is not included in the Government’s five).
An additional 2 cases involved only separate concurring opinions, for a total of 22 cases with no dissents (76% of the total of 29). Of all cases with no dissents, but excluding EV, the Government prevailed in just 6 out of 21 (29%) .
The other 7 cases involved a total of 8 separate dissenting opinions. Broken down by judge:
- Chief Judge Erdmann dissented 2 times but wrote no dissenting opinions.
- Judge Stucky dissented 5 times and wrote 5 dissenting opinions.
- Judge Ryan dissented 2 times but wrote no dissenting opinion.
- Judge Ohlson dissented 4 times and wrote 3 dissenting opinions.
- Judge Sparks dissented in no cases.
None of the visiting judges at CAAF dissented, however Senior Judge Cox did write a concurring opinion in Harrell.
These dissents favored the defense as follows:
- Chief Judge Erdmann sided with the defense in both of his dissents.
- Judge Stucky sided with the defense in 3 out of 5 dissents (60%).
- Judge Ryan sided with the defense in both of her dissents.
- Judge Ohlson sided with the defense in 2 out of 4 dissents (50%).
- Judge Sparks had no dissents.
Of the 7 cases with dissents, only 1 case involved a lone dissenter: Judge Ohlson in Sterling.
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:
Judge Stucky wrote for the court in 7 cases, drawing zero dissents (and zero concurring opinions).
Chief Judge Erdmann wrote for the court in 6 cases, of which only one (17%) had dissenters. Judge Stucky, joined by Judge Ryan, dissented in Busch.
Judge Ohlson wrote for the court in 7 cases, of which two (29%) had dissenters. Judge Stucky authored dissents in both, and he was joined by Chief Judge Erdmann in Martin, and by Judge Ryan in Rapert.
Judge Ryan wrote for the court in 8 cases, of which three (38%) had dissents. Judges Stucky and Ohlson authored separate decisions in Killion, Judge Ohlson dissented in Sterling, and Judge Stucky was joined by Judge Ohlson in a dissenting opinion in Chin.
Judge Sparks wrote for the court in one case, and it drew dissenters (putting him at 100%). Judge Ohlson, joined by Chief Judge Erdmann, dissented in Howell.
Judge Stucky dissented the most but was least likely to draw dissents when he wrote for the court. This distinction was held by then-Chief Judge Baker in the last (and his final) two terms: 2014 and 2013.
Part III: Individual Judge Statistics
Chief Judge Erdmann wrote a total of 6 opinions this term: 6 opinions of the court, zero concurring opinions, and zero dissenting opinions. He was with the majority in 27 out of 29 cases (93%). Excluding EV, Chief Judge Erdmann voted for the Government in 9 out of 28 cases (32%), dissenting from 2 of the Government’s 11 victories.
Judge Stucky wrote a total of 13 opinions this term: 7 opinions of the court, 2 concurring opinions, and 4 dissenting opinions. He was with the majority in 24 out of 29 cases (83%). Excluding EV, Judge Stucky voted for the Government in 10 out of 28 cases (36%), dissenting from 3 of the Government’s 11 victories and dissenting from 2 of the Government’s 17 losses.
Judge Ryan wrote a total of 8 opinions this term: 8 opinions of the court, zero concurring opinions, and zero dissenting opinions. As noted above, she recused herself from Howell. She was with the majority in 26 out of 28 cases (93%). Excluding EV, Judge Ryan voted for the Government in 8 out of 27 cases (30%), dissenting from 2 of the Government’s 10 victories (Howell was the Government’s 11th victory).
Judge Ohlson wrote a total of 10 opinions: 7 opinions of the court, zero concurring opinions, and 3 dissenting opinions. He was with the majority in 25 out of 29 cases (86%). Excluding EV, Judge Ohlson voted for the Government in 11 out of 28 cases (39%), dissenting from 2 of the Government’s 11 victories and dissenting from 2 of the Government’s 17 losses.
Judge Sparks participated in only 4 cases. He wrote just one opinion: for the court in Howell. He was with the majority in all 4 cases in which he participated, voting for the Government in two cases and for the defense in the other two.
The visiting judges at CAAF all voted with the majority in every case in which they participated. Only Senior Judge Cox wrote an opinion: a concurring opinion in Harrell.
Part IV: Civilian Counsel and the Appellate Defense Divisions
Civilian defense counsel argued 6 of the 28 cases (21%) argued at CAAF this term: Witt, Harrell, Hoffman, Pease, Riggins, and Sterling. Of these, the defense won in 4 (66%).
Notably, one of these civilian defense counsel – Mr. Brian Mizer who successfully argued in Witt – is employed by the Government, in the Air Force Legal Operations Agency.
Also of note, three different civilian Government counsel argued a total of 5 cases at CAAF this term: Witt, Sterling, LaBella, Williams, and Cooley. Of these, the Government won in 2 (40%).
In cases argued by military appellate defense counsel, the Government won in 9 out of 22 (41%).
Of the 13 cases where military defense counsel argued and won:
- 5 were Air Force cases (Williams, Killion, Gay, Atchak, and Chin).
- 3 were Army cases (Hills, Gifford, and Henning).
- 2 were Coast Guard cases (Cooley and Rogers)
- 1 was a Marine Corps case (EV).
- 2 were Navy cases (Bess and Clark).
So the oral argument success rates for military defense counsel at each of the four appellate defense divisions was:
- Air Force Appellate Defense: 5 out of 7 (71%).
- Army Appellate Defense: 3 out of 6 (50%).
- Coast Guard Appellate Defense: 2 out of 2 (100%).
- Navy-Marine Corps Appellate Defense: 3 out of 7 (43%).
Part V: Certified and Specified Issues
CAAF heard oral argument in 10 cases with issues certified by one of the Judge Advocates General: Atchak, Chin, Clark, Cooley, Gay, Howell, Martin, Pease, Sterling, and Williams. The court also resolved one certified case by summary disposition (Arnold, a Quick trailer). In total the court acted in 11 cases with certified issues this term.
Of those 11 cases, 4 (36%) were from the Air Force. That’s a dramatic departure from the prior two terms, when the Judge Advocate General of the Air Force was responsible for a whopping 78% and 82% of the certified cases decided by CAAF. This term it was the Judge Advocate General of the Navy who certified the most cases – with 6 of the 11 (55%). Two of those certifications, however, occurred after CAAF granted review of the case (in Martin and Sterling)
The Government won in 3 of the 11 cases with certified issues (27%): Howell, Martin, and Sterling. Two of these (Martin and Sterling) involved certifications made after CAAF granted review. The certified issue was dispositive in Martin.
CAAF specified issues for oral argument in 12 cases: Bess, Captain, EV, Evans, Gay, Gifford, Harrell, LaBella, Rogers, Sterling, Williams, and Witt. These specified issues were dispositive in every case except for Gay.
CAAF also decided two cases with Grostefon issues this term: one summarily (Hopkins) and the other after hearing oral argument (Caldwell). Four other cases with Grostefon issues (discussed here) remain on CAAF’s docket for the 2016 term.
Part VI: The Courts of Criminal Appeals
Of the 29 cases decided by authored opinions this term, the CCAs were represented as follows:
9 were from the Air Force CCA.
- 7 were from the Army CCA.
- 2 were from the Coast Guard CCA.
- 11 were from the Navy-Marine Corps CCA.
- The Air Force CCA was reversed in 3 out of 9 cases (33%).
- The Army CCA was reversed in 4 out of 7 cases (57%).
- The Coast Guard CCA was reversed in 1 out of 2 cases (50%).
- The Navy-Marine Corps CCA was reversed in 5 out of 11 cases (45%).
This only tells part of the story however, because CAAF also decided 28 cases by summary disposition. Of these summary dispositions:
4 were from the Air Force CCA.
- 21 were from the Army CCA.
- 1 was from the Coast Guard CCA.
- 2 were from the Navy-Marine Corps CCA.
Of these summary dispositions:
- The Air Force CCA was reversed in 4 out of 4 cases (100%).
- The Army CCA was reversed in 13 out of 21 cases (62%).
- The Coast Guard CCA was reversed in 0 out of 1 case.
- The Navy-Marine Corps CCA was reversed in 0 out of 2 cases.
Part VII: A Preview of the 2016 Term
CAAF begins the 2016 term with a full docket.
31 cases will be carried over from the 2015 term, the first of these cases to be granted review was Nieto, granted on March 16, 2016 (discussed here).
These 31 cases include a writ-appeal petition filed in Randolph v. H.V. and the United States (discussed here). The substantive issue in the case is the Coast Guard CCA’s decision (on an alleged victim’s Article 6b appeal) that significantly expanded the scope of Mil. R. Evid. 513, the psychotherapist-patient privilege (CCA decision discussed here). CAAF, however,
won’t consider that issue will consider more than just that issue. Because the accused pursued a writ-appeal (instead of, perhaps, an original writ), CAAF’s review will focus on begin with whether the court has jurisdiction to consider such an appeal in light of the restrictive language of Article 6b as recently interpreted in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page).
These 31 cases also include 3 cases with a total of 8 trailers:
United States v. Tso, No. 16-0497/MC (grant discussed here), is a trailer to United States v. Bartee, No. 16-0391/MC (grant discussed here), in which CAAF will revisit the improper exclusion of members on the basis of rank.
United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), questions whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. The case ended the term with three trailers: United States v. Brown, No. 16-0714/AR (grant discussed here), United States v. Echols, No. 16-0720/AR, and United States v. Bustamonte, No. 16-0693/AR (grants discussed here).
And in United States v. McClour, No. 16-0455/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that commands them that they must (as opposed to the more-common instruction that members should) find the accused guilty if the prosecution has proven the offense beyond a reasonable doubt. The case ended the term with four trailers, three from the Air Force and one from the Marine Corps: United States v. Taylor, No. 16-0482/AF (grant discussed here), United States v. Nickens, No. 16-0565/MC (grant discussed here), United States v. Smith, No. 16-0579/AF, and United States v. Kmet, No. 16-0674/AF (grants discussed here).
Other recent grants can be reviewed in our CAAF Grants category.
CAAF’s schedule includes 27 oral argument date for this coming term – a larger than average number. The court typically hears two oral arguments per day, suggesting that it anticipates hearing more than 50 oral arguments this coming term. This would be the most oral arguments since FY08, as shown by this chart from CAAF’s FY15 Annual Report:
Another interesting connection to 2008 is that the upcoming term returns CAAF to an October 1 – September 30 term of court (change discussed here). CAAF last changed its term (to one that ran from September 1 – August 31) effective September 1, 2008.
As always, we will track and analyze the court’s activity as the term develops.