Tuesday, May 06, 2008

6 May is Grizzly Bear day at CAAF

All three of today's opinions were authored by Judge Erdmann.
Posted by Dwight Sullivan at 8:22 PM

6 comments:

Anonymous said...

Greatting is a clean win for the Navy's Appellate Defense Division. I don't see the actual prejudice to Greatting (nor did Judge Ryan). But I guess public perception of fairness is the workaround.

This case just seems to represent how some CAAF cases are a lottery. The "standard of review" is the whole ballgame. A narrow search for prejudice is a loser (see Brooks and Moorefield); but a broader look for judicial nirvana is a winner.

If you tell me what CAAF is looking for, then I'll tell you what CAAF will find.

Tue May 06, 09:59:00 PM EDT
Anonymous said...

Anonymous,

To the extent that your use of "lottery" is intended to suggest the results of these cases is random, I disagree. I find them wholly explainable by a principled application of existing law to the particular claims raised: implied bias by a military judge, an improvident guilty plea, and the admission of certain evidence with no objection by the defense. Considering the nature of the alleged errors in these cases, I'm not a bit surprised by the outcomes.

But in Greatting what's up with identifying the judge by name in the heading, but referring to him only as "Judge C" in the body of the opinion?

SD

Tue May 06, 10:47:00 PM EDT
Anonymous said...

In its oddly mixed references to the military judge, CAAF was probably just subtly showing the difference between actual and implied bias - naming Judge Chester in the heading - actual bias; minimizing his name in the body - implied bias. Or, on the other hand, the editing process ain't what it used to be.

Wed May 07, 07:09:00 AM EDT
Anonymous said...

SD, "lottery" was an exaggeration. I was not "surprised" either - especially when there are only 2 possible outcomes. But the outcomes are reasonable, not predictable. There is a difference.

What was the actual prejudice to Greatting?

If you tell me how stricltly CAAF will look for prejudice in a case, I can tell you what the outcome of that case will be.

Public perception of fairness in the military justice system is a different standard of review than a test for prejudice. Once CAAF winked that it was not "really" looking for actual prejudice, but was looking to broader jurisprudential concerns, the defense had won. Again, it was all about the standard of review.

I am NOT saying this is illogical. It is grounded in CAAF precedent. But my point is that there are two gravitational centers in CAAF precedent: 1) those that insist on strict prejudicial tests; and 2) those that look to other concerns. Both trees can be said to be "wholly explained by a principled application of existing law." But I bet you would not wager your life on guessing how CAAF is going to decide a particular case! The precedents are not that strong.

Wed May 07, 11:01:00 AM EDT
Anonymous said...

Given the numerous references to "Judge C" in the opinion, it certainly appears to be very intentional. Clearly, this was not an inadvertent typo and CAAF is trying to make some point here. That being said, whatever obscure point CAAF was trying to make by doing this is anyone's guess. Kudos to anonymous #3, however, for his two creative, if somewhat improbable, explanations.

Wed May 07, 06:05:00 PM EDT
Anonymous said...

Agreed. Obviously intended. When someone figures out why CAAF would name the judge in full on the first page and then call him "Judge C" repeatedly in the opinion, clue us all in.

Thu May 08, 06:02:00 PM EDT

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