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).
Finally, of the 40 cases counted in these stats (as identified in Part I, so this includes the summary decision after oral argument in Holsey):
9 (22.5%) were considered by the AFCCA
17 (42.5%) were considered by the ACCA
2 (5%) were considered by the CGCCA
12 (30%) were considered by the NMCCA.
CAAF reversed – in whole or in part – each of the CCAs as follows:
The Air Force CCA was reversed in 5 of 9 cases (55.5%)
The Army CCA was reversed in 9 of 17 cases (52.9%).
Note: This considers CAAF’s decision in CCR as affirming the ACCA’s summary denial, and CAAF’s decision in Schell as reversing the ACCA (even though CAAF affirmed the CCA’s ultimate action setting aside the findings and sentence).
The Coast Guard CCA was reversed in 1 of 2 cases (50%).
The Navy-Marine Corps CCA was reversed in 6 of 12 cases (50%).