COURT MARTIAL APPEALS
WHAT IS A MILITARY APPEAL?
Perhaps you’ve just been notified that you are under investigation or face Article 15 / NJP punishment. You may be looking for an attorney to assist right away but you should also consider what happens if you’re convicted. Appeals are an opportunity for a “second chance” but all too often clients don’t know about them or don’t know how to exercise these rights. Don’t make that mistake.
The appellate process will depend upon at which “forum” you were convicted.
ARTICLE 15 / NJP
If you were convicted at Article 15 (also known as Office Hours, Captain’s Mast, or NJP), you have the right to appeal to the next higher level of command and—if you request it—the command may have to delay some of your punishment until the appeal is decided. The next higher commander can take any action, including overturning your conviction. This is an important opportunity to have someone else look at your conviction and some action by the higher commander is not unusual, provided your appeal is done right.
Next, if you are convicted at a court martial, you may have the right to appeal to a higher court. The military justice process is FAR from perfect. Investigators violate the constitution, judges make mistakes at trial, Commanders abuse their discretion during the course of your trial. These types of mistakes (and more) may be reviewed on appeal and can result in a “second chance” for you or a loved one. In fact, an aggressive, successful appeal could result in your conviction being overturned entirely, meaning it would be as if it never occurred. You get your life back, you get back pay from the time your pay stopped, and you get reinstated on active duty with the chance for immediate back-promotions. It happens!
Read opinions here and here to see why having a good appellate lawyer is so important, even if you plead guilty to the charges.
But notice we say, “MAY” be reviewed on appeal. That review will generally not happen if your lawyer did not “preserve” the issues at the court martial. That’s why it’s so important that you have a trial lawyer who understands the rules of appellate procedure. Even better is that you understand the basics yourself. To help you, we spend a little time here explaining how the process works.
First, the rules for appeal generally permit your lawyer to raise issues that were “properly preserved” at trial. This requires that your trial lawyer make the proper objections, at the proper time, during trial to “preserve” the issue for appeal. If they don’t, that issue may be deemed “waived” on appeal. Sadly, few trial lawyers have extensive appellate experience so many issues end up “waived” as a result. Make sure you hire a trial attorney with appellate experience–the more experience the better! Otherwise, you might lose this important “second chance.”
[Don] has mastered the art of . . . military justice . . . thorough grasp of rules, procedures, and [criminal law] processes. One of the preeminent experts in this field.” Supervising Military Judge, 2012
Your appellate rights depend upon the type of court martial (Summary, Special, or General) and the sentence you receive. Generally, your first opportunity for appellate relief begins immediately after your trial. Your lawyer will be able to point out any errors or mistakes made at the trial level in a “clemency” submission to the convening authority (the convening authority Is the commander who ordered your trial). Depending upon the charge and the sentence, the convening authority may be able to set aside your conviction or disapprove your sentence. This should be considered your first opportunity at appeal and should be aggressively pursued. As the legal advisor for several of these commanders, Don can help explain why a thorough clemency submission can make an enormous difference. But they have to be done correctly and tailored to the commander and the circumstances. These submissions should NEVER be “boilerplate.”
“Routinely sought out by other counsel for comprehensive knowledge of post-trial and clemency [strategies].” Commanding Officer, 2000
JUDGE ADVOCATE REVIEW
Another opportunity for appeal (again, depending upon the type of court-martial and the sentence awarded) is a review by the Office of the service’s Judge Advocate General. This is also an important opportunity for getting your conviction set aside or your sentence reduced and your lawyer should be all over this. Make sure they are!
MILITARY COURTS OF APPEAL
The final course of appeal to discuss is to the military appellate courts. If the court martial was a Special or General, and the sentence was severe enough, your case will automatically be appealed. During this appeal, you will get a new active duty military lawyer to represent you. The process is different than your court martial, as an appeal is basically a review of the record of your trial, with no evidence or courtroom appearances required. Instead, if your case goes this route, you’ll likely get a call from a uniformed appellate attorney who will let you know that they’ve been assigned to represent you. That attorney will then review the record of your trial to identify any of the issues written about above.
APPELLATE PROCESS: EXPERIENCE MATTERS!
Because it will be this lawyer alone reviewing your case, it’s critically important that that lawyer have experience in this area. The appellate defense divisions have fantastic attorneys, some with significant experience. BUT YOU NEED TO MAKE SURE OF THIS! As a Senior Military Appellate Judge, Don saw FAR too many cases where inexperienced counsel missed very important issues. If this happens, those issues will likely never be considered and you’ll never be the wiser. To help avoid this trap, make sure your attorney has as much experience as possible! Ask the attorney how long they’ve been an attorney, how any military appeals they have done, etc. Know your lawyer’s qualifications.
Once the record has been reviewed, and if your attorney identified any issues, your attorney will produce a “brief” which is a document that sets forth the issues the attorney identified, the lawyer’s argument as to why the issues should make the court take action, and the lawyer’s argument about what that action should be. This is where advocacy, or persuasive writing, is crucial. These recommendations can range from modifying your sentence (like disapproving the Dishonorable Discharge), to disapproving your sentence and ordering a new sentencing rehearing, to overturning the conviction entirely, without the possibility of you being retried. If your case is automatically appealed, the appellate courts cannot make your sentence more severe—it may only reduce or eliminate it. As you can see, this “second chance” can mean the world to you or a loved one.
Once the attorney submits this brief, a government appellate attorney drafts a response and both documents go to the appellate court where a panel of three judges make the decision. Frequently, one side or the other may request oral argument or the court may even order it without the parties’ request. If an oral argument is ordered then the parties will argue the case live before the court (likely in Washington D.C.), but it is only a hearing…no testimony or evidence is involved.
The law also requires the appellate court to review the record independently to ensure that the court is itself convinced of guilt beyond a reasonable doubt. Once the panel makes a decision, the decision is returned to the parties. At that point the parties can request that the panel reconsider its decision, or even that the panel send the decision to the entire court composed of approximately nine judges for reconsideration by the entire court. However, these requests for reconsideration have timelines and can only be granted if certain steps are taken first. Again, a reason why your appellate attorney MUST ABSOLUTELY know what he or she is doing. Miss a step or a timeline and you miss this chance.
COURT OF APPEALS FOR THE ARMED FORCES
If the appellate military court upholds your conviction, then your attorney may seek review by the next higher court, known as the Court of Appeals for the Armed Forces (CAAF). The CAAF is composed of civilian judges. Appeals to this court are largely “discretionary,” meaning the court may decline to permit the appeal. Therefore, your appellate attorney must know exactly what the CAAF is looking for before you request an appeal to this court.
UNITED STATES SUPREME COURT
Finally, you may attempt to appeal your case to the U.S. Supreme Court (USSC). Like CAAF, the USSC has discretion on what cases it will allow and only a tiny fraction of military cases that are appealed to USSC are accepted.
ALL WRITS ACT
When all other avenues are exhausted, you have the right to file certain Writs. Writs are another name for an appeal and are generally applicable only in extraordinary circumstances when no other opportunity for relief is available (for example, all of your appeals are exhausted but you experience unusual punishment in prison.) There are two types of writs:
Writ of Habeas Corpus. This writ is only available to service members still in confinement.
Writ of Mandamus. This type of writ is available to all convicted service members but three prerequisites are required: (1) a clear right to the relief sought; (2) a plain duty on the part of Government to do the act in question; and (3) there is no other adequate remedy available.
BUT BE CAREFUL: A service member may only bring a writ if the service member “preserved” the error by raising it during his trial or appeal. This is yet another reason you select an attorney for trial who understands these requirements and takes action to preserve the necessary issues should they be needed later.
Learn all you can about these courts and their procedures. To help you do so, we’ve provided links here where you can read the rules yourself and formulate any questions for your attorney.
CALL US TO SEE IF WE CAN HELP
We hope this information has helped better inform you and assists you in making important decisions. Don’t discount the importance of an appeal! When done right, it may give you your life back. If you have questions, please give us a call for a free consultation and let us see if we can help.
King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most