Monday, October 29, 2007

Precedential value

How is CAAF's precedent viewed by other courts? To start a conversation about that topic, I decided to look at state courts' citations to CMA/CAAF decisions over the past two years.

So, how many published state court decisions over the last two years do you think cited a CMA or CAAF decision? Please think of a number and then post a comment indicating whether the actual number is higher or lower.

My searches revealed twenty-two reported state court decisions over the past two years citing a total of twenty-two CMA/CAAF decisions. I can't guarantee that I found every such case, but a state court would have had to use an incredibly creative citation style to avoid detection.

Several courts were repeat customers, so the twenty-two reported cases were spread among seventeen courts in fourteen different states. Courts in Maryland, Massachusetts and North Carolina each had three reported decisions citing CMA/CAAF cases. Nineteen of the cases were criminal, one was a mandamus action arising from a state post-conviction action, one was an administrative driver's license revocation proceeding that somehow made it to the Hawaii Supreme Court, Brune v. Admin. Dir. of the Courts, 130 P.3d 1037 (Haw. 2006), and one was a sex offender registration case.

Most of the decisions treat the CMA/CAAF precedent favorably, while just four of the twenty-two decisions reject or distinguish the CMA/CAAF precedent.

What is striking is the routine manner with which the precedent is handled. There is no sense that CMA/CAAF precedent is somehow exotic. There are no attempts to explain why it is appropriate to cite precedent from the military justice system. It is simply treated as precedent from another jurisdiction.

In only one of the twenty-two cases was the state court dealing with a question that directly concerned military law: People v. Kennedy, 850 N.E.2d 661 (N.Y. 2006), where the New York Court of Appeals was considering whether a GCM conviction for indecent assault required registration as a sex offender. (No, held the court.)

United States v. Reichenbach, 29 M.J. 128 (C.M.A. 1989), which was cited in three state court decisions, was the most frequently cited.

The list of cited cases included other prominent recent military justice cases. United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), was favorably cited by the New Mexico Court of Appeals in State v. Stock, 147 P.3d 885 (N.M. Ct. App. 2006). The Virginia Court of Appeals relied on United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), in deciding Singson v. Commonwealth, 621 S.E.2d 682 (Va. Ct. App. 2005). And, not surprisingly, one state court decision looked to CAAF precedent for guidance in interpreting Crawford v. Washington, 541 U.S. 36 (2004). State v. LaTurner, 163 P.3d 367 (Kan. Ct. App. 2007) (citing Untied States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006)).

The most extensive use of military precedent in any one case was by the Kentucky Supreme Court, which relied on two CMA/CAAF decisions in holding that a criminal defendant is entitled to access to his or her trial defense counsel's case file, including work product, during post-conviction review. Hiatt v. Clark, 194 S.W.3d 324 (Ky. 2006) (relying on United States v. Dupas, 14 M.J. 28 (C.M.A. 1982); United States v. Dorman, 58 M.J. 295 (C.A.A.F. 2003)).

It will surprise no one to know that the author of more cited CMA/CAAF opinions than any other judge was Chief Judge Everett, with five. Chief Judge Cox and Judge Baker tied for second with four. This is quite an impressive feat for Judge Baker, since he has thus far served less than half his term. Every other judge in the top five has already completed a fifteen-year term--and has presumably cranked out roughly twice the number of opnions available to be cited compared to Judge Baker's portfolio. (Chief Judge Crawford was fourth while Chief Judge Sullivan was fifth.)

So did you think the number would be more than, less than, or exactly twenty-two?


Anonymous said...

Well said...

Anonymous said...

How often are the service courts cited in state cases?

Courts can find support for any proposition somewhere. CAAF is probably the last resort for most citators - on occasion, you have to use the third string when your starters and backups go down.

John O'Connor said...

I guess lower than 22 (my guess was five). I think there is a trend toward regularization (if that's a word) of court-martial precedent. The high water mark to me was the Supreme Court's use of Davis v. United States to announce a general constitutional principle concerning the effect of an ambiguous request for counsel.

I think it is important for "civilian" courts to at least stop and think about whether there is anything in the military context that yields a different result from civilian practice, and that is one reason why I suspected that there would be so few military cases cited by state courts. As Anonymous #2 put it, you can usually find a cite for just about any proposition if you crane your neck far enough, and I would think that courts unfamiliar with court-martial practice would find it easier to look for cites elsewhere than to figure out wherther the military context mattered in a military case they came across.

Marcus Fulton said...

My guess, ten. Both numbers are very low.