Tuesday, June 26, 2007

SCOTUS clean sweep

In today's order list, the Supremes denied cert in Banker, No. 06-1544, and Cossio, No. 06-1568. That completes the military cert denial process for this term. Today not a single military cert petition is pending before the Supremes, which has already denied all 20 cert petitions filed this term seeking a writ of certiorari to CAAF. All of the cert petitions were filed by either defense counsel or the accused pro se; the SG filed no cert petitions seeking a writ of certiorari to CAAF.

So no Golden CAAF Award this term, Klipper.

6 comments:

Anonymous said...

Maybe the sweep is the reason why Army DAD doesn't waste its time and energy.

Anonymous said...

Personally, I've never thought the time and energy was wasted. If nothing else, it educates the members of the cert pool about the military justice system (and gets a good writing sample, at government expense, for appellate counsel's resume). I'm impressed by military (save the Army)appellate counsels' putting the effort into filing the petitions. Does anyone know if there's any other "firm" that regularly files so many petitions on behalf of its clients?

SD

CAAFlog said...

One of the problems with blogs, e-mails, web sites, etc., is it is often hard to distinguish sarcasm or humor from actual commentary. So if the first anonymous's comment was humor, good on you, eh. (This is supposed to be native Canadian patois, since I am writing this in Toronto.) But if it's serious commentary, then I believe it needs to be rebutted. I'll crunch the numbers when I get back to the States, but I suspect that the percentage of meaningful relief provided by, say, NMCCA probably isn't very different from the chance of getting a cert petition granted in a military justice case. Does that mean that Navy and Marine Corps appellate counsel should save the time and energy of filing briefs at NMCCA? Of course not -- they have a statutory duty to represent their clients' interests at that forum. They also have a statutory duty and a regulatory professional responsibility duty to represent their clients' interests at the Supreme Court. Those duties aren't subject to a cost-benefit analysis: a military defense counsel has a statutory and p.r. duty to file a cert petition in any case in which the client has a non-frivolous issue -- not a certworthy issue, but a non-frivolous issue.

I have been fairly critical of DAD over a fairly long period of time over its Supreme Court practice in the hope that a DAD counsel would clarify whether DAD has a policy regarding cert petitions (which may be troubling from a Rule 5.4 p.r. perspective) or would rise to defend DAD's practice in this respect. So far no one has. But I would really like to provoke a discussion on this topic. I'm sorry if it sounds like I'm harping, but I am really trying to understand the reason for the stark disparity between Navy-Marine Corps Appellate Defense and Army DAD cert practice and the implications of that disparity.

John O'Connor said...

Well, caaflog, one thing "Bill James wouldn't do" is just run numbers on relief at NMCCA and getting a cert petition granted. Bill James would recognize that even if the odds of getting relief at NMCCA are poor, if you forgo that, you likely give up your chances of getting relief at CAAF, where the success rate is higher. Bill James also would recognize that getting relief at NMCCA is more valuable than just getting a cert petition granted at the Supremes, as history tells us that even military accuseds who get cert petitions granted usually lose.

To be sure, I'm not defending a DAD policy, even if I knew what it was. I'm just pointing out that Bill James wouldn't do things the way you're suggesting in your post. But then, maybe you've had a couple of Molsons already. I hear if you put a mouse in your bottle, you can take it in and they'll give you a new case.

Anonymous said...

What Mr. O'C does not know is that CAAFlog has already run all those numbers. In what was alternately the most informative and most confusing teaching session I have ever been privy to, CAAFlog sat around a conference table and Money Ball-ed all of the factors that might get you relief. In the end the value of seeking relief at NMCCA was dubious at best. The best predictor, if I am recalling this correctly (our Kabul branch office can correct me if I am wrong) was issue type and not disposition of the case below. Thus, one could submit a summary assignment of error, I can't endorse submitting a meritorious case on its merits (though that phrase seems like a contradiction, but I digress), and have nearly the same chance of winning at CAAF with a third of the work. Yet, counsel don't do that because they are zealous adovates and want to pursue their client's meritorious issues even when their efforts may not improve their chances of relief.

I wish I had saved that 7 foot by 4 foot dry erase board after the flood.

Marcus Fulton said...

As I recall, the most important pleading you can file from a statistical perspective is a CAAF sup.