Wednesday, February 21, 2007

De facto automatic jurisdiction?

The daily journal is now available on CAAF's web site through 16 February. In looking over the month to date, I was struck by the number of summary dispositions: 11.

CAAF has denied 34 petitions thus far this month. So granting and summarily disposing of 11 cases represents an enormous percentage of its petition docket. Here's a breakdown:

No reason given: 2 (these are usually long-term confinement cases where CAAF wants to give the accused an opportunity to file a cert petition with the Supremes)
Post-trial delay: 4
Error in the providence inquiry: 2
Illegal sentence: 1
Ineffective assistance of counsel: 1
Dismissing CPPA language from spec: 1

I am struck by the variety of reasons leading to the summary dispositions. The February docket suggests once again that, de facto, CAAF is seriously scrutinizing and reviewing every case that comes before it and its petition denials and summary dispositions serve the same functions as summary dispositions without oral argument in criminal cases before the 12 geographic circuits. Why not formalize that practice and simply grant an automatic appeal right to CAAF for the loser in every decision of a CCA -- by the defense or by the government, thus eliminating both the CAAF petition process and the certified issue? It doesn't appear that such a change would actually increase CAAF's workload, since it would be free to hear oral argument only the same cases it chooses to review now, with the rest being decided summarily on the basis of the briefs -- just as they appear to be deciding them summarily now on the basis of the petition and supp. This would also eliminate the ugly appearance that the government has an advantage over the defense because the government has a guaranteed path to CAAF through the certification process. While a Judge Advocate General occasionally certifies a case that the government won at the CCA level, that is sufficiently rare to be remarkable.

I think the time is ripe for such a change, which would obviously open the door to additional cert petitions in military justice cases. Perhaps a CAAFlog bill writing workshop is in order.


John O'Connor said...

My God, you've lost your mind. We need less appellate litigation, not more. If there's an automatic right of appeal, don't more cases get "appealed" to CAAF (when you know you get a review) than there currently are cases in which the accused files a petition for review?

My NJS graduation certificate is getting less valuable every day . . . I may have to take it down from my wall.

Marcus Fulton said...

Would this have that big an effect? We were already doing what we called "merits petitions" when client insisted on petitioning a merits case to CAAF. Usually that happened when the client checked the "appeal to CAAF" box on the form he got with the "you lose" letter while being unable to identify a specific issue worth appealling. If happened fairly often.

Of course 67a would have to be revised.

CAAFlog said...

I don't see any reason why more cases would go to CAAF. Why would an appellant pass on filing a petition but decide to file an appeal as of right? It would seem to me that we would have the same number of cases at CAAF either way. I've talked to many clients about their right to go to CAAF. Most are in favor of "taking a shot." Some just want their appeals over with. What about an appeal as of right rather than a discretionary appeal would move anyone from one camp to the other?

On the other hand, we would no longer have two rounds of briefing in "granted" cases -- just one round, so less overall work. And, as I pointed out, it wouldn't really be any more work for CAAF, since it is already behaving as if appeals were there as of right -- fixing little mistakes in the findings, CA's actions, promulgating orders, etc. I'm not being critical of that -- I'm just saying it is more reflective of an appeal as of right mentality than a discretionary appeal mentality.

Perhaps the biggest effect would be to swing the door open for more cert petitions -- something that has historically benefited very few military petitioners (only one that I can think of), but an important point of principle -- a military petitioner should not have a lesser right to seek cert because at one point he or she made the noble choice to join this nation's military. Plus with the current gerrymandered cert jurisdiction rules, the government has preferred access to the Supremes. Let's just level the playing field -- between appellants and the government and between military accused and civilian defendants.