CAAFlog » End o' Term Stats » 2009 Term Stats

At the mid-term point, I noted that the number of petitions CAAF had received was on pace to be lower than any of the previouis 11 terms’ totals (and probably the lowest ever).

But the petition intake during the second half of CAAF’s just-completed term exceeded that of the first half.  According to the court’s official end o’ term stats, here (scroll down just a tiny bit), CAAF received 721 petitions for grant of review during the term.  That’s more than the FY 2003 term’s total of 694 petitions.  The September 2008 term’s total was 843.

The number of cases that CAAF carried over on its master docket (30) is identical to the number it carried over from the previous term.  That’s the latest indication that the number of cases CAAF decides during its brand new term will likely be similar to the number it decided during its just-completed term.

It occurred to me today to wonder about the 3-2 opinions during CAAF’s September 2009 term.

There were 10 3-2 opinions.  Here’s the most striking thing about them:  Judge Stucky voted for the government in all 10 cases.  Here’s the next most striking statistic:  Judge Erdmann voted for the government in only 1 of the 10:  Lloyd, in which he was the senior judge in the majority and assigned the opinion to himself.  Judge Baker was the second most likely to support the government in 3-2 opinions, with 7.  Judge Ryan was next with 6.  Chief Judge Effron was fourth with 4.

The most likely line-up in the majority was a tie.  Each of the following combinations produced 3 of the 10 3-2 majorities:  Chief Judge Effron, Judge Baker, and Judge Stucky (Neal, Clayton, Ferguson); and Judge Baker, Judge Stucky, and Judge Ryan (Cowgill, Smith, Ayala).  No other 3-2 line-up occurred more than once.

And here’s the breakdown of how often each judge was on the winning side of a 3-2 split: 

1.  Judge Stucky:  8

2.  Judge Baker:  7

3.  Chief Judge Effron:  6

      Judge Ryan:  6

5.  Judge Erdmann:  3

I thought it would be interesting to place the CAAF judges on a continuum based solely on how often they voted for the Government during the September 2009 term.  Here’s what I found:

1.  Judge Stucky:  31

2.  Judge Baker:  27

     Judge Ryan:  27

4.  Chief Judge Effron:  24

5.  Judge Erdmann:  22

The mean was 26.2.  (Obviously both the median and the mode were 27.)

One of the most remarkable things about the 2009 term — other than the small number of cases that CAAF decided — was the imbalance in opinion writing.  CAAF decided 43 cases by formal opinion.  Two of those were issued per curiam.  Another two of those (Smith, 68 M.J. 445, and Cowgill, 68 M.J. 388) didn’t have an opinion of the court.  That leaves 39 opinions of the court to divvy up among CAAF’s five judges.  But instead of four judges writing eight opinions and one writing seven, here’s what we had:

Judge Erdmann:  10

Judge Stucky:  9

Judge Ryan:  9

Judge Baker:  6

Chief Judge Effron:  5

This term saw an increase in polarized outcomes compared to last term; 9 of CAAF’s 43 formal opinions (21%) were resolved by 3-2 or 2-1-2 votes, up from 15% last year, though the percentage is almost the same as that from the term before that.  Judge Stucky was the most likely to be in the majority in a 3-2 outcome (8/9).  (As we’ll see, Judge Stucky was in dissent only twice all this term.)  Judge Erdmann was by far the least likely to be on the winning side of a 3-2 opinion (2/9).  Judge Baker was second most likely to be in the majority of a 3/2 opinion (7/9), while Chief Judge Effron and Judge Ryan were tied for third place (5/9).

As those numbers would suggest, Judge Erdmann cast the most dissenting votes:  7.  Chief Judge Effron and Judge Baker were tied for second place with 5.  Judge Ryan dissented 4 times while, as noted above, Judge Stucky dissenting only twice.  But Judge Baker was the most likely judge to cast a sole dissenting vote, with 3.  Judge Erdmann, who dissented the most, never dissented alone.  Nor did Judge Ryan.  Chief Judge Effron and Judge Stucky each dissented alone once.

Judge Baker was the most likely to write a separate concurring opinion (5), with Judge Stucky second (3).  Chief Judge Effron wrote 2 while neither Judge Erdmann nor Judge Ryan penned a concurrence.

Remarkably, while Judge Erdmann cast the most dissenting votes, he tied with Judge Ryan for writing the fewest dissenting opinions — 2.  Chief Judge Effron and Judge Baker tied for writing the most dissenting opinions — 5 each.

And now for the pairings of which judges are most to least likely to vote together, with the number of times those two judges voted together in non-unanimous cases indicated in parentheses [note that for this purpose, two judges are considered to have voted together if they supported the same outcome, even if they issued or joined separate opinions reaching that result]:

1.  Judge Stucky & Judge Ryan (10/13)

2.  Judge Erdmann & Judge Ryan (9/13)

3.  Chief Judge Effron & Judge Erdmann (8/13)

4.  [TIE] Chief Judge Effron & Judge Stucky (7/13)

                   Judge Baker & Judge Stucky (7/13)

6.  Chief Judge Effron & Judge Baker (6/13)

7.  [TIE]  Chief Judge Effron and Judge Ryan (5/13)

                   Judge Baker & Judge Ryan (5/13)

                  Judge Erdmann & Judge Stucky (5/13)

10.  Judge Baker & Judge Erdmann (3/13)

These pairings are fairly consistent with last year’s with two principal exceptions:  the Judge Stucky-Judge Ryan pairing moved quite a ways up the list while the Chief Judge Effron-Judge Baker pairing moved quite a ways down.

It’s certainly possible that CAAF could issue more summary dispositions this term, so these stats are provisional.  But here are where things stand at the moment.

CAAF issued one opinion of the court in a Coast Guard case (Smith), in which it affirmed CGCCA.  So CGCCA had a 100% affirmance rate in CAAF cases that resulted in an opinion of the court.

CAAF issued 12 opinions of the court in Army cases.  In 10 of those 12 cases, CAAF affirmed ACCA for an 83% affirmance rate in CAAF cases that resulted in an opinion of the court.

CAAF issued 13 opinions of the court in Naval cases.  In 8 of those 13 cases, CAAF affirmed NMCCA for a 62% affirmance rate.

CAAF issued 17 opinions of the court in Air Force cases.  In 9 of those 17 cases, CAAF affirmed AFCCA for a 53% affirmance rate.

The overall rate of reversal in cases resuling in a CAAF opinion of the court was 35%.

CAAF also issued 14 summary dispositions reversing CCAs on what I considered non-trivial matters (though one of those 14–Osburn, No. 10-0514/AR–was borderline trivial).  Of those, CAAF reversed ACCA in 4, reversed NMCCA in 4, and reversed AFCCA in 6.

So, throwing out trivial matters, CGCCA wasn’t reversed this term, ACCA was reversed 6 times, NMCCA was reversed 9 times, and AFCCA was reversed 14 times.

The government’s success rate in cases with certified issues was staggering.  Of the six certified issue cases that CAAF decided either summarily or with opinions of the court, the government prevailed in five.  (Serianne was the only certfiied issue case in which the defense prevailed at CAAF.)

In 10 of the 43 cases in which CAAF heard oral argument this term, the accused was represented  by a retained civilian counsel.  Surely far less than 23% of all supps are filed by retained civilian counsel.  So that suggests that supps filed by retained civilian counsel are granted at a higher rate than supps filed by military counsel.  Of course, that doesn’t mean that the grant rate is higher BECAUSE they are filed by retained civilian counsel; it’s probably true that accused in cases with an objectively “grantable” issue are more likely to hire a civilian counsel than are accused in cases without such an issue.

Also interesting is that once the case is granted, retained civilian counsel prevailed 30% of the time — almost indistinguishable from the overall rate at which the defense prevailed in argued cases at CAAF this year.