Over the next week or so, I'll offer up some thoughts on the recent, unpublished Akbar opinion, available here.
The first interesting thing is that the opinion is unpublished, even though it discusses whether or not Ring/Apprendi applies to military capital cases. The last Army capital case to receive review was Murphy, and that was a published opinion.
My initial reaction to that was not one of whether the opinion should or should not be published; instead, I realized I didn't really know what the process is that leads to the decision to publish or not.
First, published opinions are the ones marked "opinion of the court." Unpublished opinions are the memorandum opinions and summary dispositions (some of which have narratives).
In the Army, if the three-judge panel that reviews the case writes an opinion, that panel looks at several factors, like whether the opinion announces new law, or whether the opinion disagrees with another service court opinion, or if the problem they are addressing is commonplace in the field. If the panel votes to publish the opinion, then the panel forwards the opinion to the Chief Judge, who concurs or non-concurs. The Chief Judge can also recommend that a case that was scheduled to be unpublished be considered for publication.
If the opinion is going to then be published as an opinion of the court, the opinion is staffed through the other judges, who can make comments and voice concerns, and can actually ask that the case be reviewed en banc (I had thought only the parties could do that). Following those discussions (and possible modifications to the opinion), the case is then published.
More to follow on the actual issues in the case.
LTC Carpenter
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