Saturday, June 27, 2009

CCAs' oral argument practice [CORRECTED]

When June ends, marking the calendar year's halfway point, ACCA will have heard 14 oral arguments in 2009. (This post originally counted 13 ACCA oral arguments. I had missed United States v. Gross, No. MISC ARMY 20081049.) AFCCA will have heard seven. NMCCA will have heard only five. And CGCCA will have heard only one.

Put CGCCA to the side -- it's sui generis. What explains the great disparity between the number of oral arguments heard by ACCA and those heard by the remaining two CCAs?

I know of at least one case this year in which AFCCA issued an opinion despite a pending oral argument request, thus effectively denying the request. Are AFCCA and/or NMCCA denying a large number of oral argument requests? Or are Army counsel asking for argument more often? Of the argued Army cases, in what percentage did the defense seek oral argument, in what percentage did the government seek oral argument, and in what percentage did the court sua sponte order oral argument?
Posted by Dwight Sullivan at 12:31 AM
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15 comments:

Cossio said...

Hmm, very interesting.

You would expect the Army, which is the largest service (although the Navy + Marine Corps rival it) to have the most cases, therefor the most appeals, and therefore the most oral arguements.

However, the numbers don't seem to add up. In fact, a lot of the numbers don't (i.e. the number of General Courts martial in each service, summary courts, etc.)

The Annual Reports may be a good place to start doing some number crunching.

Sat Jun 27, 08:02:00 AM EDT
Anonymous said...

The ACCA practice has been to grant argument when requested by counsel. Except for the one or two Art62 appeals all the arguments were requested by defense counsel. DAD counsel request argument based on counsel's determination that the case so merits. That's it. Not very complicated from a systems perspective.

Sat Jun 27, 10:27:00 AM EDT
Christopher Mathews said...

AFCCA's practice, when I served, was to grant oral argument if requested by counsel.

In FY 06 and 07, the Air Force oral argument numbers increased significantly over prior years. Post-Moreno, we ordered counsel to present oral argument on a number of requests for enlargement of time where it appeared the appeal was not being pursued in a sufficiently timely manner.

Judging from the latest annual report, the number of requests for enlargement significantly declined in FY 08, and the number of oral arguments declined as well. I can't say with certainty that the decline in oral argument corresponds precisely with the decline in enlargement requests, but it would not surprise me to find that's the case.

Sat Jun 27, 03:37:00 PM EDT
Anonymous said...

ACCA is not that liberal - last year I had a complicated premed murder case, with Crawford issues galore, a mid-trial change in the government's conspiracy charge, and IAC where the original civilian counsel never went to the crime scene; never filed a single suppression motion, etc. They denied oral argument even when we made a formal motion for it.

AFCCA seems to be a bit quirkier - panel differences perhaps?

If they want to call themselves judges and courts, unless it's a patently frivolous appeal and EITHER party wants oral argument, it should be automatically granted.

Sat Jun 27, 05:21:00 PM EDT
Anonymous said...

Never saw ACCA refuse argument- maybe your case was lame?

Sat Jun 27, 05:29:00 PM EDT
Anonymous said...

The policy of Code 46 is to oppose oral argument as a waste of resources. Yet, they recruit Marine Captains and Navy Lieutanants by dangling the carrot of oral argument. Strange.

Sat Jun 27, 07:34:00 PM EDT
Anonymous said...

I have to agree, I've seen some really slight cases granted oral argument.

ACCA may not be very good at the ruling thing, but they are extremely quick to grant oral argument.

Sat Jun 27, 07:35:00 PM EDT
John O'Connor said...

"If they want to call themselves judges and courts, unless it's a patently frivolous appeal and EITHER party wants oral argument, it should be automatically granted."

------

If the CCAs want to call themselves courts and judges, then you would expect each CCA to have a variety of approaches to granting oral argument. It's just not true that all non-frivolous motions or appeals get oral argument in the federal system or in state court systems.

You can make a defensible case that oral argument ought tio be available when a party wants it, but it's not really defensible to say that they need to do it because that's what other courts habitually and unifromly do, because that's not accurate.

Sat Jun 27, 08:16:00 PM EDT
Anonymous said...

Concur with JO'C, it seems the service courts are more likely to grant oral argument than their Article III counterparts. Still, I have never understood the government's opposition to (per Anon 0734's note), or NMCCA's reluctance to grant, defense requests for oral argument.

At the least, there have been a number of occasions when oral argument has proved useful for revealing the NMCCA's inaccurate understanding of the record of trial (due perhaps to the practice of a panel's overly relying on the briefing memo of a single judge?).

At best, it's proved invaluable for sharpening both the argument of counsel and the analysis of the court.

In fact, there has been some discussion among defense counsel whether it might be IAC to request oral argument on an otherwise meritorious issue that NMCCA -- based on its unique fact-finding powers -- might "fix" prior to possible review by CAAF, if the lower court were alerted to the significance of the issue only by the attention drawn to it by an oral argument.

Sat Jun 27, 09:48:00 PM EDT
Mike "No Man" Navarre said...

Anon 2149 said:

In fact, there has been some discussion among defense counsel whether it might be IAC to request oral argument on an otherwise meritorious issue that NMCCA -- based on its unique fact-finding powers -- might "fix" prior to possible review by CAAF, if the lower court were alerted to the significance of the issue only by the attention drawn to it by an oral argument.

Now that is a fascinating issue Anon 2148. That's why it is hard to ditch the Anons:

Sat Jun 27, 09:52:00 PM EDT
Dwight Sullivan said...

Interestingly, today I learned of a second case from this year in which AFCCA decided the case without ever ruling on a pending defense request for oral argument.

This is a busy weekend, but I hope to find the time tomorrow to look at a couple of variables affecting or affected by the CCAs' oral argument practice.

Sat Jun 27, 10:19:00 PM EDT
Anonymous said...

I think arguments at the service are a great warm up for arguments at CAAF. Advanced moot!

Sat Jun 27, 10:24:00 PM EDT
Anonymous said...

Anon 1729 - CAAF sent the case back for "fact-finding" on the conflict of interest issue with trial civilian defense counsel, whose retainer was paid by the co-defendant and not disclosed to either Detailed counsel or the Court.

Anon 2148 - as to the IAC issue, I understand your point, but in that scenario, why would oral argument add to the problem? Presumably, the issue was briefed for preservation purposes, so if the Court is looking to "fix" something, they're going to do it oral argument or not.

A more interesting question is, by waiving oral argument, are you forfeiting any claims that such a "fact-finding" fix violates Crawford and its progeny? Under their unique fact-finding ability, that's an issue waiting to happen.

Mon Jun 29, 05:22:00 AM EDT
Anonymous said...

Anon 0522,

The issue could be sufficiently preserved by no more than a summary assignment (maybe even styled as a "Grostefon" submission, to throw the court further off the scent).

It sounds intriguing, but I don't understand your point on confrontation and the court's "fact-finding" powers.

Mon Jun 29, 12:27:00 PM EDT
Anonymous said...

Even if it's just an anonymous comment, somtimes somethings are better left unsaid, or only between the atty-client, or at most just with a defense friend...But that's just my opinion.

Mon Jun 29, 11:18:00 PM EDT

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