WWBJD II

Perhaps there isn't an old adage admonishing against getting in the middle of an argument between a judge and a dead guy. If not, I'm about to explore whether there should be.

Anyone who doesn't know what I'm talking about should look at the comments to Nelson's Right Eye's post about CAAF's Fiscal Year 2006 report. NRE observed (with one eye, no less) that NMCCA held 10 oral arguments in FY06 and averaged 9.6 arguments per year over the past five fiscal years. The Air Force Court reported 13 oral arguments last fiscal year. This led NRE 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?"

The No Man observed that in his recollection, NMCCA "denied oral argument routinely."

As part of a much longer comment addressing several aspects of practice before NMCCA, Guert reported that "attorneys of the Navy-Marine Corps Appellate Defense Division request oral argument frequently, and these requests are almost always denied."

Guert's post drew a reply from CJW -- one of our newest, one of our most welcome, and certainly our most surprising contributor. CJW noted his scepticism about unsupported broad assertions. He noted that counsel have requested oral argument in very few of the cases that have come before him and observed that his panel routinely grants requests for oral argument.

I'm in a very Bill Jamesian mood, having gone to my first Spring Training game ever today, in which my beloved Washington Nationals vanquished the visiting Mets. I would love to do a complete analysis of oral argument requests, grants, denials, and sua sponte orders on a service-by-service basis. But that is beyond my capabilities on a laptop in a hotel room in Lake Buena Vista. So here's what I did tonight. I searched LEXIS's CCA file for the last two years using this search query: "motion w/10 oral! w/4 arg! w/10 denied or deny and date aft march 12, 2005." The search produced nine results -- interestingly, all from the Navy-Marine Corps Court. Here are the nine cases:

1. United States v. Carlson, 2006 CCA LEXIS 27,*3 (N-M. Ct. Crim. App. 14 Feb. 2006) (“n2 We have also considered the appellant's motion for oral argument. The appellant's motion is hereby denied.”}.

2. United States v. McClelland, 2006 CCA LEXIS 6, *2 (N-M. Ct. Crim. App. 24 Jan. 2006) (“n1 The Motion for Oral Argument submitted by the appellant on 23 July 2004 is hereby denied.”).

3. United States v. Davis, 2005 CCA LEXIS 333, *1 (N-M. Ct. Crim. App. 3 Oct. 2005) (“The appellant's motion for oral argument is denied.”).

4. United States v. Williams, 2005 CCA LEXIS 289, *4 (N-M. Ct. Crim. App. 14 Sep. 2005) (“n3 The appellant's Motion for Oral Argument, filed on 15 November 2004, is denied.”).

5. Graves v. United States, 2005 CCA LEXIS 269, *2 (N-M. Ct. Crim. App. 26 Aug. 2005) (“We have considered all the filings by the parties. We grant all motions to attach and deny the petitioner's motion for oral argument.”).

6. United States v. Szymczyk, 2005 CCA LEXIS 184, *19 (N-M. Ct. Crim. App. 23 June 2005) (“The appellant's Motion to Request Oral Argument of 14 October 2003 is hereby denied. “).

7. United States v. Ashley, 2005 CCA LEXIS 168, *2 (N-M. Ct. Crim. App. 26 May 2005) (“n1 The appellant requested oral argument concerning the legal and factual sufficiency of her conviction. This motion is hereby denied.”).

8. United States v. Trujillo, 2005 CCA LEXIS 157, *20 (N-M. Ct. Crim. App. 16 May 2005) (“n6 The appellant's Motion to Request Oral Argument of 3 October 2002 is hereby denied.”).

9. United States v. White, 61 M.J. 521, 522 (N-M. Ct. Crim. App. 2005) (“n1 . . . On 5 November 2004, the appellant requested oral argument. That motion is hereby denied.”).

So over the last two years, NMCCA averaged 4.5 known oral argument denials. Of course, the actual number of oral argument denials is probably higher, since NMCCA no doubt denied oral argument in some cases that were not posted on LEXIS -- and may have denied some additional oral arguments in cases that are posted on LEXIS without noting the denial in the opinion or using a phrase that didn't fall within my search term. But in any event, since according to NRE, NMCCA averages 9.6 oral arguments annually, an annual denial rate of 4.5 oral arguments already seems rather high.

Two things are striking about the search's returns. First, every case that the search found was from a Navy-Marine Corps Court case. Making a similar search with an unrestricted date term reveals that the last non-Navy-Marine Corps opinion to use the search phrase was an Air Force Court decision released 11 September 2001. United States v. Philidor, 2001 CCA LEXIS 251, *2 (A.F. Ct. Crim. App. 11 Sep. 2001) ("We denied his motion for oral argument.").

Second, the last case revealed by the search is more than a year old. Of course, it is possible that NMCCA has denied oral arguments since Valentine's Day 2006. But the data present the possibility that NMCCA's practice has shifted over the last year (or possibly that counsel have reduced their number of oral argument requests). Perhaps NMCCA manning levels led to a spike of oral argument denials during calendar year 2005, followed by greater receptivity to oral argument as the bench strength (pun intended) grew.

Let me hasten with the caveat that Bill James would do much, much more to investigate the various CCAs' oral argument practice. But based on the preliminary research -- which shall henceforth be referred to as The Lake Buena Vista Project -- there does seem cause for concern that NMCCA denied a large number of oral argument requests in 2005, cause to investigate further whether this trend was idiosyncratic to the Navy-Marine Corps Court, and cause to investigate whether NMCCA has been more receptive to oral arguments over the course of the last calendar year. But those are questions better researched on days when I have tickets to see the Nats at RFK rather than at Space Coast Stadium.