2/3 > 2/5 [revised]

If I had any mathematical abilities, I might be done something useful with my life -- like becoming a bookie. But, alas, I don't, so I am basically unemployable except in the legal field. But even someone with my extremely limited math skills realizes that it is harder to win 2 out of 3 than 2 out of 5.

Because CAAF is operating as a three-judge court until Judge Gierke's and Judge Crawford's replacements are nominated and confirmed, maintaining a two-judge-grant rule would appear to require a successful petition to win 67 percent of the judges' votes rather than the 40 percent that is required when CAAF is at full strength.

It is way too early to draw any conclusions based on CAAF's actual practice as a three-judge court, but let's look at the numbers so far. In October 2006, CAAF granted review in two cases (Phillips -- a Marine Corps case dealing with execution of contingent confinement -- and Edwin -- an Army case dealing with mistake of fact as a defense to a child sex offense). [NOTE: I should have written that CAAF granted two cases with plenary briefing. In my calculations, I exclude summary disposition and no brief cases. I'm trying to get at cases that ultimately get on CAAF's oral argument calendar.]

The CAAF web site includes the daily journal entries for the previous eight Octobers, so let's compare those numbers with this year's. From 1998-2005, CAAF granted an average of 6 cases per October. But this year's figure of 2 is not unprecedented -- in October 2000, CAAF also granted review in 2 cases and in October 2002, it granted review in just 3. And while this month's anemic performance is cause for concern, it could be a momentary blip due to administrative changes arising from the transfer of the chief judgeship or preoccupation with preparing for the 13 oral arguments this month.

A proposal by the National Institute of Military Justice would eliminate any concern over a diminished statistical chance of a successful petition. In a letter to CAAF, NIMJ has proposed that the court adopt a one-judge-grant rule while it operates as a three-judge court. NIMJ's letter is available here:

http://www.nimj.org/documents/CAAFltr.pdf

--Dwight Sullivan