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Sunday, March 11, 2007
FY06 Annual Report
The Eye observes that the FY06 Annual Report has been posted on the CAAF website. I'd attempt a link to it but The Eye has never moved past signal flags as its primary means of communication, so The Eye expects each of you to do your duty and find it yourself. For those of you who are curious about trends in the number of oral arguments at the various CCA's, no surprises this year -- the numbers remain low. NMCCA had 10 in FY06 and averaged 9.6 arguments per year over the past five FY's. During that same period, AFCCA averaged 13 a year, although the Appellate Defense and Appellate Government reported different numbers for FY06 arguments. I saw no comparable chart for ACCA but then again, I am visually challenged. The NMCCA and AFCCA numbers compel me to ask: are the numbers low simply because counsel don't request oral argument (either for tactical reasons or in an effort to avoid futile hours of preparation for a quixotic exercise)? Or are the courts denying motions for oral arguments?
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In my experience with the CCAs, which was prior to the 2006 Annual Report reporting period, requests for oral argument were routinely made by appellate defense counsel. Counsel always saw oral argument as at least a nod that the court thought your case had some merit, a rare occurrence for CCA defense counsel. My memory was that CCA denied oral argument routinely, or, more specifically, never ruled on your request for oral argument and instead issued an opinion without mentioning oral argument.
I can tell you that the attorneys of the Navy-Marine Corps Appellate Defense Division request oral argumement frequently, and these requests are almost always denied. The court only grants arguments when civilian appellate defense counsel request one, but even in those cases the court sometimes denies argument. Of the ten arguments reported in the 2006 Annual Report, I do not think a single one involved a military defense counsel arguing the case. As a result, Navy appellate defense counsel have three and four times as many arguments at the C.A.A.F. as they have at the NMCCA. In fact, none of the eighteen military defense counsel have even half as many NMCCA arguments as C.A.A.F. arguments. In the Court's defense, this may be attributable in part to the fact that the NMCCA has been under siege for the past four years as it combated the largest caseload in the military with the fewest judges. But that cannot explain why those who are fortunate enough to have the resources to hire civilian defense counsel also have an eighty percent chance of getting an audience with the Court while the indigent servicemember only gets a chance to argue at the C.A.A.F - if he is one of the lucky ten percent to get in the door. The system in the Navy, as it has existed for years, has discriminated against poor appellants and denied indigent servicemembers equal protection. See, Douglas v. California, 372 U.S. 353 (1963).
But things may be changing. The current Chief Judge has openly encouraged his now super-sized court to grant oral arguments in cases where it is deemed necessary, and not only when the counsel has a civilian address. With the appellate defense division and the court adequately staffed for the first time in years, and the court willing to hear from counsel, I dare say an appeal to the NMCCA may no longer be a meaningless ritual. See Evitts v. Lucy, 469 U.S. 387 (1985).
I have heard repeated complaints that the NMCCA denies most requests for oral argument, but have yet to see any numbers to support that claim. I am skeptical of any broad claim that is not supported by fact and can attest to the fact that very few of the cases that come before my panel have requested oral argument. We have granted them routinely. As for the parting shot by "guert gansevoort" that an appeal before the NMCCA has heretofore been a meaningless ritual, it sounds like another broad claim without facts to back it up, and may generate from sources who never met a meritless issue they didn't like...or an issue of merit they could not confuse.
In the three and a half years I've been in the job, the CGCCA has never denied a motion for oral argument. There haven't been that many, but then again, there haven't been that many cases. And the Court has specified issues on occasion or responded to pleadings with requests for additional information (again, not often, but often enough, given the case-load). So, while I may not always agree with the result in a given case, I've never come away feeling that I haven't been heard.
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