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CAAF heard oral argument in 6 cases with issues certified by one of the Judge Advocates General (Muwwakkil, Quick, Katso, Piolunek, Morita, and Buford). The court resolved another 3 certified cases by summary disposition (Huey, Soto, and Bowser). In total the court acted in 9 cases with certified issues this term.

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Of those 9 cases, 7 (78%) were from the Air Force. That’s a slight decrease from last term’s 82%, but still gives me reason to recall my post about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The other two certified cases this term were from the Army (Muwwakkil) and the Marines (Quick).

The Government won in 4 of the 9 certifications (44%): Katso, Piolunek, Buford, and Huey (resolved summarily as a Piolunek trailer that mooted the certified issue). Notably, Piolunek involved a cross-certification; the JAG certified an issue after CAAF granted review of the CCA’s decision. The certified issue in Piolunek was also summarily rejected by CAAF as presenting a question of fact that the court lacks jurisdiction to consider.

The court specified issues for oral argument in two cases (Gilbreath and Arness), a Marine Corps case and an Air Force case. The specified issues were dispositive in both cases.

Of the 37 cases heard at oral argument, the CCAs were represented as follows:

• 13 were from the Air Force CCA.
• 15 were from the Army CCA.
• 8 were from the Navy-Marine Corps CCA.
• 1 was from the Coast Guard CCA.

Of these:

• The Air Force CCA was reversed in 8 out of 13 cases (62%).
• The Army CCA was reversed in 6 out of 16 cases (38%).
• The Navy-Marine Corps CCA was reversed in 4 out of 8 cases (50%).
• The Coast Guard CCA was reversed in 0 out of 1 case.

Civilian defense counsel argued 6 of the 37 cases (16%) argued at CAAF this term: Gutierrez, Morita, Newton, Piolunek, Plant, and Sullivan. Of these, the Government won in 3 (50%).

In cases argued by military defense counsel, the Government won in 17 out of 31 (55%).

Of the 14 cases where military defense counsel argued and won:

• 2 were Air Force cases (Jones and Morita Nettles).
• 7 were Army cases (Adams, Bennitt, Blouin, Keefauver, Muwwakkil, Peters, and Stellato).
• 3 were Marine Corps cases (Gilbreath, Quick, and Vargas).
• 2 were Navy cases (Simmermacher and Woods).

So the success rates for military defense counsel at each of the four appellate defense divisions was:

• Air Force Appellate Defense: 2 out of 9 (22%).
• Army Appellate Defense: 7 out of 14 (50%).
• Navy-Marine Corps Appellate Defense: 5 out of 8 (63%).
• Coast Guard Appellate Defense: N/A (only Coast Guard case argued by a civilian).

Chief Judge Baker wrote a total of 16 opinions this term: 8 opinions of the court, 3 concurring opinions, and 5 dissenting opinions. He was with the majority in 30 out of 37 cases (81%). He voted for the Government in 23 out of 37 cases (62%), dissenting from 2 of the Government’s 20 victories and concurring in 2 of them.

Judge Stucky wrote a total of 16 opinions this term: 7 opinions of the court, 5 concurring opinions, and 4 dissenting opinions. He was with the majority in 32 out of 37 cases (86%). He voted for the Government in 19 out of 37 cases (51%), dissenting from 3 of the Government’s 20 victories and concurring in 2 of them.

Judge Erdmann wrote a total of 11 opinions this term: 7 opinions of the court, 2 concurring opinions, and 2 dissenting opinions. He was with the majority in 32 out of 37 cases (86%). He voted for the Government in 15 out of 37 cases (41%), dissenting from 5 of the Government’s 20 victories and concurring in 2 of them.

Judge Ryan wrote a total of 10 opinions this term: 7 opinions of the court, 1 concurring opinion, and 2 dissenting opinions. She was with the majority in 33 out of 37 cases (89%). She voted for the Government in 24 out of 37 cases (65%), dissenting from none of the Government’s 20 victories and concurring in 1 of them.

Judge Ohlson wrote a total of 10 opinions: 8 opinions of the court and 2 dissenting opinions. He was in the majority in 33 out of 36 cases (92%). He voted for the Government in 18 out of 36 cases (50%), dissenting from 2 of the Government’s 20 victories. Of note, he recused himself from one case (that the Government won).

Senior Judge Cox participated in 1 case this term, siding with the Government in CAAF’s unanimous decision in Newton.

Of the 37 authored opinions of the term, 14 were unanimous (no separate opinions). The Government prevailed in 7 of these 14. An additional 9 cases involved only separate concurring opinions, for a total of 23 cases with no dissents (62% of the total of 37 cases). Of these 23 cases with no dissents, the Government prevailed in 13 (57%).

The other 14 cases involved a total of 15 separate dissenting opinions. Broken down by judge:

• Chief Judge Baker dissented 7 times and wrote 5 dissenting opinions.
• Judge Erdmann dissented 5 times and wrote 2 dissenting opinions.
• Judge Stucky dissented 5 times and wrote 4 dissenting opinions.
• Judge Ryan dissented 4 times and wrote 2 dissenting opinion.
• Judge Ohlson dissented 3 times and wrote 2 dissenting opinions.

These dissents favored the Government as follows:

• Chief Judge Baker sided with the Government in 5 out of 7 dissents (71%).
• Judge Stucky sided with the Government in 4 out of 5 dissents (80%).
• Judge Ryan sided with the Government in 4 out of 4 dissents (100%).
• Judge Ohlson sided with the Government in 2 out of 3 dissents (67%).
• Judge Erdmann sided with the Government none of his 5 dissents (0%).*

* Corrected. I originally wrote this backwards; that Judge Erdmann sided with the Government in all of his dissents. 

Senior Judge Cox participated in one case (Newton), which was decided in a unanimous decision.

Of the 14 cases with dissents, only 4 cases involved lone dissenters. Of these 4 cases, Chief Judge Baker was the lone dissenter in 2 (Vargas and Bannitt), siding with the Government in both. Judge Erdmann was the lone dissenter in 1 (Sullivan), siding with the Defense. Judge Ohlson was the lone dissenter in 1 (Katso), siding with the Defense.

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 8 cases, of which only 1 (13%) had dissenters. That was Judges Stucky and Ryan (both writing separately) in Peters.

Judge Stucky wrote for the court in 7 cases, of which 1 (14%) had dissenters. Judge Ohlson dissented in McFadden, joined by Chief Judge Baker.

Judge Ryan wrote for the court in 7 cases, of which 2 (29%) had dissenters. Chief Judge Baker dissented in one case (Bennitt) and Judge Ohlson dissented in the other (Katso).

Judge Erdmann wrote for the court in 7 cases, of which 4 (57%) had dissenters. Judge Stucky joined by Judge Ohlson dissented in 1 case (Quick), and Chief Judge Baker dissented in the other 3 cases (Blouin, Adams, and Vargas) joined by Judge Ryan in 2 (Blouin and Adams).

Judge Ohlson wrote for the court in 8 cases, of which 6 (75%) had dissenters. Judge Erdmann dissented in 5 cases (Akbar, Buford, Schloff, Torres, and Sullivan), Judge Stucky dissented in 3 cases (Buford, Schloff, and Torres), Chief Judge Baker dissented in 2 cases (Akbar and Plant), and Judge Ryan dissented in 1 case (Plant).

Interestingly, just like last year, while Chief Judge Baker dissented more than any other judge (7 in total – authoring separate opinions in 5), 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 37 cases this term and issued 37 authored opinions of the court. Summaries of each case, with links to CAAFlog case pages, are available on the September 2014 Term page.

The court also issued summary dispositions in 46 cases, including 6 cases involving the appointment of Mr. Lawrence Soybel to the Air Force CCA (see United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)), and 7 cases involving the brief revival of the ultimate offense doctrine at the Army CCA (see United States v. Phillips, 74 M.J. 20 (C.A.A.F. Jan. 6, 2015) (CAAFlog case page)).

Of the 37 authored opinions of the court:

• Chief Judge Baker wrote 8.
• Judge Ohlson wrote 8.
• Judge Erdmann wrote 7.
• Judge Stucky wrote 7.
• Judge Ryan wrote 7.

Notably, Chief Judge Baker’s appointment to CAAF expired on July 31 and Judge Erdmann is now the Chief Judge of CAAF. However, for these stats, I will identify them as Chief Judge Baker and Judge Erdmann.

Judge Ohlson recused himself from one case this term: United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page), in which CAAF interpreted the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States. Prior to joining the court Judge Ohlson worked in the Department of Justice. Senior Judge Cox participated in CAAF decision in that case in place of Judge Ohlson

The 37 authored decisions break down by service as follows:

• Army: 15 (41%).
• Air Force: 13 (34%).
• Navy: 4 (11%).
• Marine Corps: 4 (11%).
• Coast Guard: 1 (3%).

Readers may recall that in the 2013 term CAAF did not hear oral argument or issue an authored opinion in any Navy cases.

The court had a less active extraordinary writ docket in the 2014 term than in the 2013 term (when it considered 23 petitions). In the 2014 term the court considered 19 petitions (12 writ-appeals, 4 habeas petitions, 1 petition for mandamus, 1 petition for relief pendente lite, and 1 petition filed under the All Writs Act and dismissed for lack of jurisdiction). It denied all of them.

Calling winners and losers can be tough, but I’m calling 20 (54%) of the term’s authored opinions as wins for the Government. Those 19 cases are: Phillips, Piren, Castillo, Newton, McFadden, Buford, Piolunek, Olson, Norman, Torres, Castillo, Carter, Ward, Katso, McIntosh, Murphy, Schloff, Arness, Akbar, and Sullivan.

Broken down by service, among authored opinions the Government won in:

• 8 out of 13 Air Force cases (62%)
• 8 out of 15 Army cases (53%)
• 2 out of 4 Navy cases (50%)
• 1 out of 4 Marine Corps cases (25%)
• The single Coast Guard case (100%)

Each of the judges sided with the Government as follows:

• Judge Ryan: 24 out of 37 (64%)
• Chief Judge Baker: 23 out of 37 (62%)
• Judge Stucky: 19 out of 37 (51%)
• Judge Ohlson 18 out of 36 (50%)
• Judge Erdmann 15 out of 37 (41%)
• Senior Judge Cox: 1 out of 1 (100%)

CAAF oral argument schedule for the September 2014 term originally included one more oral argument day, on June 9, 2015. However, Chief Judge Baker made a comment at the end of Tuesday’s oral arguments that implied that the court would not hear any more cases this term, and the court’s website no longer shows a June 9 date.

So it seems that the 2014 term’s oral argument calendar is complete. CAAF heard 36 37 (see note in comments) arguments this term. CAAF’s FY14 annual report shows how this number of arguments compares to prior years:

The court issued decisions in 18 of those. Here is a brief synopsis of the issues in the undecided 19 cases (listed in the order argued):

Read more »

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).

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).