Assigned Military Counsel?
There are several reasons why using a military-appointed courts-martial appeals counsel may not be in your best interest.
First, you don’t pick your attorney – the military picks your attorney for you (and if you do request a particular attorney, its the military that decides whether that counsel is “available”). The problem with having the military assign you counsel is that the attorney you’re assigned may not have much experience in appealing courts-martial convictions. In fact, generally speaking, the most experienced military appellate counsel will only have about two years of experience before they are transferred to a new assignment. Further, even if your military counsel does have two years of experience, it is very unlikely that all of his or her experience will be with your type of case.
Another problem you face is that, sometimes, the attorney you’re assigned is simply not excited about being an assigned as an appellate defense counsel. Worse, you may get an attorney who has a personal issue with the type of offense(s) you’ve been convicted of. How is this possible? Because military attorneys generally don’t get to decide their assignments – the government simply tells them that will be their job. Further, because military attorneys generally can’t turn away the appellate cases they’re assigned absent some ethical concern, the result is often an attorney with a large caseload and less time for each case.
But then you must ask what should you be looking for in a civilian court-martial appeals counsel.
What questions should you ask the civilians you’re considering?
First and foremost, you should ask how many courts-martial appeals the attorney has personally handled. In my experience, there are a large number of attorneys who claim to do military appeals as one of their practice areas but who only file one or two cases a year (at most). Indeed, while I was the senior legal advisor to the Chief Judge at the Court of Appeals for the Armed Forces, there was only a small handful of attorneys in the country who regularly filed cases. You want an attorney who routinely files motions and briefs with the military courts, both the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces, and who is intimately aware of their workings.
Second, ask the attorney you are interviewing how often their petitions are granted at the Court of Appeals for the Armed Forces. Why? Because, unlike the service Courts of Criminal Appeals, the Court of Appeals for the Armed Forces doesn’t have to hear your case absent special circumstances. And that is where your counsel’s experience becomes critical. Does the attorney you’re interviewing know what issues the Court of Appeals for the Armed Forces is currently interested in? Do they have the experience to write briefs that can peak the court’s interest? While no attorney can guarantee your case will be granted review, if the counsel is not getting his or her briefs granted with some consistency, the answers to the above questions may be no. This type of experience is also important before the service Courts of Criminal Appeals. Put simply, while the service Courts of Criminal Appeals are required to conduct a complete Article 66 UCMJ review, an experienced advocate can properly frame the appeal and prepare it for the Court of Appeals for the Armed Forces in the event the service Court denies your appeal.
Third, ask the attorney if he or she has ever worked at the Court of Appeals for the Armed Forces or any of the service Courts of Criminal Appeals. During my time at the Court of Appeals for the Armed Forces, I had the opportunity to see thousands of petitions. I saw which issues often gained the interest of the Court and which ones didn’t. I heard what arguments worked, what the Court found persuasive, and what fell flat. It is this level of experience that you should be looking for in your appellate counsel.
When my clients hire the Saroyan Law Firm, they are guaranteed to have an advocate who has personally handled over 150 appeals and who was selected as the senior legal advisor to a Chief Judge of the Court of Appeals for the Armed Forces. I continue to practice as a courts-martial appeals counsel because I enjoy it every day. The result is that my clients gain a passionate advocate with significant experience – an advocate whom they choose.
If you’d like more information, either about the process or to discuss your case, please contact me for a free consultation at [email protected] or through the contact box below.