Sunday, February 08, 2009

Appellate relief data

Earlier this week, I gave a presentation to Air Force defense counsel assigned in CONUS. For the presentation, I looked at every decision issued by the Air Force Court in calendar year 2007 to discern the relief rate in cases decided by that court. The data that this exercise produced weren't always easily categorized. In some instances, it's obvoius that the relief is meaningful. In others, it's obvious that it isn't. But in a number of case, it's hard to tell whether the modification to the approved sentence actually resulted in meaningful relief. For example, does setting aside confinement that has already been served actually result in a benefit to the accused? I'm sceptical, but it's possible that DFAS actually gave some or all of those accused some extra pay as a result of that action. In any given case, does a reduction in forfeitures actually put money in the accused's pocket, or would the accused have suffered the same monetary loss due to automatic forfeituers? Conducting a case-by-case analysis to answer those questions was beyond the scope of this project, but would be a worthwhile topic for future study.

During calendar year 2007, AFCCA issued opinions in 506 Article 66 appeal cases. (In other words, my data universe excludes petitions for extraordinary relief and Article 62 appeals.) Most, but not all, of those decisions are on the court's web site. I was able to look at all the decisions, including those that weren't on the web site.

In those 506 decisions, AFCCA granted some form of relief in 93 cases (18%).

In 32 of the 93 cases in which AFCCA granted relief, the relief was limited to ordering a corrected court-martial promulgating order or a corrected (as opposed to new) convening authority's action.

In another 14 of the 93 cases, the relief consisted of AFCCA ordering a new convening authority's action.

In 7 of the 93 cases, the relief consisted of setting aside confinement that had already been served.

In 13 of the 93 cases, the relief consisted of setting aside a finding of guilty to a specification or affirming a finding of guilty to an LIO or excepting language from a finding of guilty to a specification while affirming the sentence as approved below.

In one case, the relief consisted of setting aside contingent confinement that had already expired. United States v. Rausch, No. ACM 36784 (Feb. 28, 2007).

In one case, the relief consisted of setting aside a reprimand while leaving the adjudged and approved bad-conduct discharge undisturbed. United States v. Collette, No. ACM S31176 (A.F. Ct. Crim. App. Jan. 26, 2007).

In one case, the relief was a new 706 board. United States v. Mackie, 65 M.J. 762 (A.F. Ct. Crim. App. 2007), aff'd, 66 M.J. 198 (C.A.A.F. 2008).

In 11 cases, AFCCA set aside or reduced forfeitures (though in one case, the total amount of reduced forfeitures was less than $9, United States v. Easterling, No. ACM S31042 (A.F. Ct. Crim. App. Feb. 16, 2007)).

In one case, the relief consisted of reducing a DD to a BCD on sentence appropriateness grounds, which could potentially have a significant effect on the VA benefits that the accused will receive. United States v. Daugherty, No. ACM 36542 (A.F. Ct. Crim. App. July 215, 2007).

In four cases, AFCCA disapproved BCDs.

In six cases, AFCCA reduced unserved confinement, thus resulting in the accused's release from confinement sooner. In one of those cases, confinement was reduced by three days on a two-year sentence. United States v. Thompson, No. ACM 36943 (A.F. Ct. Crim. App. Sept. 24, 2007). Still, as the Supremes observed in a military justice case, "While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires." Noyd v. Bond, 395 U.S. 683, 699 (1969). Or, to use ex-Governor Rod Blagojevich's immortal phrase, even a three-day reduction in confinement "is a [expletive deleted]ing valuable thing."

AFCCA set aside all findings and the sentence in two cases. In one, the court set aside all findings and the sentence while authorizing a rehearing due to the military judge's erroneous denial of a defense challenge for cause. United States v. Bryant, 65 M.J. 746 (A.F. Ct. Crim. App. 2007). In the other, AFCCA set aside a 10-year-old conviction and the sentence and dismissed the charges because the government lost the record of trial and couldn't reconstruct it. United States v. Castilleja, No. ACM 36975 (A.F. Ct. Crim. App. Nov. 21, 2007).

So in 2007, AFCCA set aside all findings and the sentence in less than one-half of one percent of the cases it reviewed.

The court granted some form of meaningful relief more often than I would have guessed before starting the project. Wherever one draws the "meaningful relief" line (and the way I draw it results in about a 4.7% meaingful relief rate), the rate of meaningful relief was higher than the less-than-three-percent relief rate that Major Lippert found in a survey of three of the CCAs' handling of special court-martial cases over a five-year period. See Major Jeffrey D. Lippert, Automatic Appeal Under UCMJ Article 66: Time for a Change, 182 MIL. L. REV. 1, 17 (2004).


Anonymous said...

BZ on your work in this survey! At a training session once provided by a civilian appellate defense counsel with over 30 years of experience in New York and elsewhere, Ira Mickenberg, he claimed that the BEST appellate defenders - the cream of the crop - get meaningful relief for clients about 15% of the time. Given that most military appellate counsel are by no means seasoned veterans, perhaps having 3-7 years of legal practice on average, the numbers from your 1-year-survey seem to more-or-less confirm Mr. Mickenberg's claim. So its appropriate that military defenders play ball in Washington, where the Nationals can be our role models: work cheap, play hard, lose often. (But - tongue-in-cheek - if you are real good, get traded...e.g., go to a civilian firm)

Anonymous said...

I wonder if Appellant Easterling ever received his $9. And, if he did, does this count as "meaningful relief"?

Christopher Mathews said...

Anon 1224: The reduction in forfeitures in Easterling was ordered because the sentence announced by the trial judge and approved by the convening authority -- “two-thirds pay each month for nine months” -- was inconsistent with R.C.M. 1003(b)(2), which requires forfeitures less than total to be expressed in whole dollars.

Reassessing the sentence to the nearest whole dollar amount within the two-third limit meant reducing the forfeitures (obviously) by less than a dollar a month. I'm not sure you could call that "meaningful relief," but then again, that wasn't really the issue: it was more a question of ensuring that the sentence conformed with the law.

(And, in the spirit of full disclosure: I was the author of the Easterling decision).