Military Law Firm Practice Area: Court-Martial Appeals
After hearing those words of “Of Charge I, Guilty”, the first thing convicted servicemembers will naturally wonder is whether they have the right to appeal the wrongful conviction. Fortunately, every servicemember convicted by the General or Special Court-martial has the legal right to appeal and can, thereby get their sentence reduced or even (in some circumstances) their case completely tossed out. However, there are different rules for appealing to the different criminal courts of appeal (CCA). Each military branch has its own CCA, however the Navy and Marine share their appellate court.
Whatever your branch of service, one should gain familiarity with the expected appellate process as much as possible to understand your rights of appeal and how they hinge on the specific terms of your sentence.
Appealing a Military Court-Martial Conviction
At the very beginning, it is important to note that the process of appealing convictions from Special and General Courts-martial is distinguishable from that of the Summary Court-martial. Put plainly, the appellate process for court-martial appeals at the General or Special Court-martial vantage point is not as straightforward (and perhaps meager) as the Summary Court-martial. The Summary-Court appeal is merely handled by the chain of command, which is commonly a non-lawyer officer at the rate of O-5 or above. In short, while not unheard of, as I had two overturned a SCMs after the evidence showed the alleged victim conspired with another soldier to lie on her behalf, a true Perry Mason moment, nevertheless, SCMs are very rarely overturned on appeal.
Let’s now turn into the details of the appeal process at Special and General Courts-martial!
Appeals at General and Special Courts-Martial Work by the Principle of Automatic Reviews! Do you qualify?
In case of either a Special or General Court-martial conviction, if you receive a punitive discharge or a period of confinement in excess of 2 years, you will be automatically entitled to an automatic review through the military court of appeals whether you request an appeal or not. Of course, you may waive the right to appeal, but his is done with great trepidation while (sometimes) fashioning a very advantageous plea agreement.
Thus, if the court-martial sentence qualifies for review as described above, the service branch related court of criminal appeals (CCA) must address the General and Special court-martial convictions. They read the briefs, and hear argument by the counsel from the defense, and the government. Each CCA is comprised of a three appellate judge (all on active duty) panel that thereafter issue an opinion. The military maintains the below CCAs:
- The Army Court of Criminal Appeals (ACCA)
- The Air Force Court of Criminal Appeals (AFCCA)
- The Navy-Marine Corps Court of Criminal Appeals (NMCCA)
- The Coast Guard Court of Criminal Appeals(USGCCA)
Do all Convicted Servicemembers Get to Appeal their Court-Martial Conviction?
As referenced above, but put differently, servicemembers that do not receive a “punitive” discharge (i.e., bad conduct discharge or dishonorable discharge) and that otherwise do not receive a sentence of imprisonment that exceeds two years, may not quality for an automatic right to appeal. For sentences that fail to qualify for this automatic review, it ultimately remains the CCA’s penultimate discretion on whether to hear your case.
Yes, if your case fails to qualify for an automatic review by the appeals court, Article 69 of the Uniform Code of Military Justice gives you the right to request JAG to submit your case to the military courts of appeal. If your case still fails to qualify for a review by the court of appeal, the JAG can review your case.
A service member will appeal their case to the court for the armed forces branch they were a member of. The appropriate court will review the case automatically if your sentence qualifies for it (involves negative discharge, one-year confinement, and other severe punishment listed above.)
If your case qualifies for an automatic review, the person who referred your case to a court-martial will review your case. This person is referred to as the “convening authority.” They have the right to mitigate your sentence—the right to mitigate means the right to reduce or completely eliminate the charges you were convicted of. But they do not have the right to increase your sentence. While reviewing your case, the convening authority is also allowed to seek advice from the judge advocate. The Uniform Code of Military Justice, 10 U.S.C. §§ 859-876, and the Courts-Martial Manual govern reviews of court-martials.
In case you find the decision of the convening authority dissatisfactory, you have the right to appeal to the military court of appeals for your service branch (listed above), which you were a member of.
How the Military Court of Appeals Reviews Your Case?
Your appeal made to the appropriate appeals court is carefully reviewed. The court will evaluate your case and the level of the sentence imposed by the court-martial and look for any errors or legal mistakes in their deciding factor. The court will ensure that you were proven guilty “beyond a reasonable doubt” through proper evaluation. Rest assured that a military court of appeal will either lessen your sentence or dismiss your case entirely but cannot increase your penalties. If your guilty plea results in a confinement of a year at least or a dishonorable discharge, your case will again be automatically reviewed. This is to ensure whether you voluntarily believed you were guilty and did not believe that you were innocent during the course of the proceedings.
You Have the Right to an Attorney!
You can start this end-around process by asking your branch of services lead lawyer, The Judge Advocate General (TJAG) to endorse the plea to have the CCA review your case. The TJAG can do so, but often in very rare instances. In lawyer speak, if your case fails to qualify for an automatic review by the appeals court, Article 69, UCMJ provides a right to request TJAG to submit your case to the military courts of appeal.
Make no mistake, if your case still fails to qualify for a review by the court of appeal, the JAG can review your case.
Whether your case qualifies for an automatic review, or not, with the exception of sex crimes, the person who referred your case to a court-martial will review your case during what is called “clemency” IAW R.C.M. 1105 and R.C.M. 1106. This person is referred to as the “convening authority (CA).” The CA has the right to “mitigate” your sentence—the right to “mitigate” means the right to reduce or eliminate the charges you were convicted of. But they do not have the right to increase your sentence. While reviewing your case, the CA is also allowed to seek advice from the command (O-6 level) judge advocate. In case you find the decision of the CA dissatisfactory, you still have the right to appeal to the military court of appeals tied to your service branch.
How the Military Court of Appeals Reviews Your Case?
Your appeal made to the appropriate appeals court is carefully reviewed by a detailed military defense appellate lawyer that will evaluate your case and the level of the sentence imposed by the court-martial and look for any other errors or legal mistakes (termed, “assignments of error”). As is sometimes common, an accused may hire a civilian appellate lawyer, as well. In which case, his two appellate lawyers will “jointly” ensure that a persuasive brief is submitted. If CAA denies relief, appellant can then submit a petition to the Court of Appeals for the Armed Forces (CAAF), located in Washington, DC. Its review is discretionary, however. Thus, finally, one may also consider other alternative means of collateral attack upon the conviction such as a habeus petition before a U.S. Federal District Court.
Concluding Thoughts About Your Appeal
As part of the court-martial appellate process you hold the right to keep the services of a military-appointed attorney, called an defense appellate judge advocate, or turn to an expert civilian defense attorney to strengthen your appeal.
Hiring a military law firm experienced in court-martial appeals gives your appeal case additional support since a military defense attorney can explore every available option for appealing your conviction. This applies both at trial, and if necessary, during your criminal appeal. Therefore, its likely best is to hire a competent legal defense attorney from the start of the appeal you file. Again if your case for your court martial appeals process to the military appeals court of your service branch does not succeed, you can then turn your appeal to the Court of Appeals for the Armed Forces. However, CAAF, which is comprised of 5 civilians only grants judicial review is some cases. Here’s how it works:
How U.S. Court of Appeals for the Armed Forces (C.A.A.F.) Works
If your sentence is other than a death sentence, you need to file a petition to the court through your attorney to the C.A.A.F. indicating a good reason, “good cause,” for your case to be reviewed. The court reserves the right to hear your case or reject it. However, the exception of a death sentence gives a servicemember an absolute right to appeal. In case your case is denied by the court, you can request the JAG to send your case to the C.A.A.F. and order the court to review it. The court is required to review a case submitted by TJAG if legal errors or mistakes are found in the deciding factors of the case. Once more this request, however, rarely gets accepted.
In sum, CAAF accepts all appeals other than the death sentence at its largely unfettered discretion. It reserves the right to deny your case. As mentioned above, your attorney will have to essentially show good cause to persuade the court to review your case. Finally, CAAF only reviews cases for the lower military court’s legal errors and does not take into account the facts of the case, unlike lower courts.
What to do when you have no remaining options for your case review?
File a Writ of Habeas Corpus
Under the All Writs Act, 28 U.S.C. § 1651, a writ of habeas corpus can be filed to be heard by the Courts of Criminal Appeals and the U.S. Court of Appeals. Habeas corpus gives the right to everyone, on arrest or detention, to get the legality of their detention checked and obtain relief, if necessary. Such petitions can only be filed under unusual conditions, and are generally filed when no relief avenue is available.
Seeking Review by the U.S. Supreme Court: Another Option for Service Members
Although only a few cases are granted review by the U.S. Supreme Court, this is another arguable option available for servicemembers. Such cases rarely get acceptance, and the Court holds complete discretion regarding whether to hear a case or not and can reject any case, even a death penalty one. In fact, the U.S. Supreme court does not accept all military criminal cases for review. The last option, when there’s no other way, is asking for clemency. You can ask for it at any stage of your appeal process or after it is over.
Requesting Clemency
After being convicted of a special or general court-martial, you can request a clemency at the start of the appeal process or even after it is over. The law gives you the clemency (lenience) right to demand the convening authority, the JAG, and your branch’s clemency board. Clemency can dismiss all or part of a sentence.
Now let’s discuss the straightforward one: appealing convictions at a summary court-martial.
Appeals at Summary Court-Martial
As mentioned above, court-martial appeals of SCMs is a lot more straightforward than it is with general and special court-martials. To draw upon an apt analogy, they basically involve Article 15, UCMJ cases and sit at the lowest level of a formal military court. If a summary court-martial sentences you, you do not reserve the right to appeal the conviction to a military appeals court, unlike more serious proceedings. Instead, you can appeal to the next higher level of command, a senior commander, within five days of receiving your sentence.
Before we explain the appeal process at a summary court-martial, let’s discuss what Article 15, UCMJ cases are for a better understanding of the process!
Article 15, UCMJ (NJP) Disciplinary Procedures (or the Navy Captain’s Mast)
There are some basic rules and regulations based on which an Article 15, UCMJ case should be processed. Article 15, UCMJ is a law that allows commanders to conduct procedures of minor misconduct against juniors and impose punishments. Unlike formal courts-martial in the U.S. military, these procedures are less formal types of cases as they are conducted by higher officers and do not require a trial, hence referred to as non-judicial procedures. Thus, an Article 15, UCMJ hearing is an administrative discipline, not a conviction.
Article 15, UCMJ disciplinary procedures are usually limited to minor violations. They do not result in a criminal record that may affect your military record, unlike serious offenses that a formal court-martial handles. Although a commander reserves the right to impose a decision under Article 15, doing so requires proof of a violation beyond a reasonable doubt in the Army and the Air Force. In contrast, imposing such penalties in the Navy demands convincing and clear proof. Unlike the general and special court-martials, you need to request an appeal to an Article 15 conviction, as there’s no automatic review. You have to appeal to the next higher commander within five days of your punishment being announced.
Typically, your appeal is reviewed by a lawyer from the office of the staff judge advocate before sending it to the senior commander. The latter reserves the right to affirm the guilty punishment, reduce it or entirely remove your punishment setting Article 15 aside, but cannot increase your punishment. When the outcome of this appeal is pending, you can request a delay in your punishment.
Hire an Attorney for Court-Martial Appeals
We hope the information we shared has provided you with some useful insights into the appealing process of court-martial convictions and the numerous options available. The best is to hire an experienced defense attorney from an experienced military law firm who will not just guide you throughout your court martial appeals process but will also strengthen your case. They can also help in filing a writ of habeas corpus, and with other options, to ensure your rights are defended!