Court-Martial Appeals and Raising the Issues You Think Are Important

If you were convicted of a crime in the military, you likely have many questions about appealing the conviction.  And whether you hire a civilian appellate counsel or use a counsel the military assigns you, there is one thing you need to know:  You have the absolute right to raise any issue before the military appellate courts that you want to.  And when I say any issue – I mean any issue at all.  How?  Because of a case commonly referred to as Grostefon.

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982)

Thirty-five years ago, the Court of Military Appeals (now the Court of Appeals for the Armed Forces or C.A.A.F.) highlighted that the “Uniform Code of Military Justice provides many benefits not shared by civilian defendants.”[1]  What the case of Grostefon did was explicitly create “a procedure which insure[s] that [one of] those benefits [is] properly safeguarded.”[2]  In short, the Court of Appeals for the Armed Forces,

require[s] that when the accused specifies [an] error . . .  the appellate defense counsel will, at a minimum, invite the attention of the [Court of Criminal Appeals] to those issues and, in its decision, the [Court of Criminal Appeals] will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them.[3]

Unfortunately, while this is an important right, the burden placed on the appellate counsel is very low.  Indeed, if an appellate counsel believes the issue is without merit, all he or she needs to do is “list the issue for consideration by the appellate court without further briefing.”[4]  But is that the best course for you?  Probably not.  Instead, you likely want your issue fully briefed to the court.  However, in my experience, if you work with an assigned military counsel, it is at best a 50/50 chance they will brief any of your Grostefon issues.  Instead, they will advise you that you can brief them if you think they are important.

Raising Grostefon Issues

Normally speaking, an attorney cannot raise issues to a court that the attorney believes is without merit.[5]  But the Court of Appeals for the Armed Forces created an exception to this rule in Grostefon when it held that, “[i]n light of the rule of practice which we are prescribing, an appellate counsel cannot properly be criticized or admonished for identifying an issue to our Court or to the Court of Military Review–no matter how frivolous the issue–when that issue has been requested by the accused.”[6]  But again, the court limited the military appellate counsel’s responsibility to only “identification of the issue[s] [which] does not necessitate extensive briefing.”[7]

The Benefits of Fully Briefing Grostefon Issues

While the C.A.A.F does not require it, your appellate counsel should be fully briefing your Grostefon issues for at least three reasons.  First – briefing Grostefon issues gets a fully thought out issue before the court.  As someone who was the senior legal advisor the Chief Judge at C.A.A.F., I can tell you that a fully thought out and briefed Grostefon issue stands a much better chance of prevailing than one where the issue is merely listed in an appendix.

Second, Grostefon gives your military appeals counsel a special opportunity to argue for new law, even when the current law does not support the position.  This is a rare opportunity for any counsel – one that should be taken for the benefit of the client as well as the state of the law.

Third – and most importantly – while your attorney cannot normally raise an issue he or she thinks is frivolous, the truth is he or she might be wrong.

How do I know?

Because the Court of Appeals for the Armed Forces regularly grants review of Grostefon issues.  Indeed, in 2017 alone, C.A.A.F decided at least five cases where the issue raised was a Grostefon issue.[8]  In other words, while the appellate defense counsel thought there was no merit to the issue – they were wrong, and the Court of Appeals for the Armed Forces reviewed the case.  This is true even when the lower appellate court also believed the issue had no merit.[9]  And if you fully brief the issue, there is a much better chance both the Court of Appeals for the Armed Forces and the lower Courts of Criminal Appeals will understand your argument.

Use Every Tool You Can

When you are appealing your court-martial conviction, you need to use every option available to you.  In many cases, that includes raising issues through Grostefon.  If you’re looking for an experienced court-martial appeals counsel, one who has routinely raised Grostefon issues on behalf of clients and who regularly reviewed then while he was the senior legal advisor to the Chief Judge at C.A.A.F., please give me a call.  All consultations are free.

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[1] Grostefon, 12 M.J. at 435.

[2] Id.; see also United States v. Douglas, 56 M.J. 168, 170 (C.A.A.F. 2002).

[3] 12 M.J. at 136; see also United States v. Gray, 51 M.J. 1, 63-64 (C.A.A.F. 1999).

[4] 12. M.J. at 435.

[5]  See e.g., The Colorado Rules of Professional Conduct, Rule 3.1.

[6] 12 M.J. at 437 (emphasis added).

[7] Id.

[8] The following cases all decided Grostefon issues in 2017:  United States v. Wilson, 76 M.J. 4 (C.A.A.F. 2017); United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017); United States v. Nieto, 76 M.J. 101 (C.A.A.F. 2017); United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017); United States v. Erikson, 76 M.J. 231 (C.A.A.F. 2017).

[9] Haverty, 76 M.J. at 201.


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