Appealing a Military Conviction

The process of courts-martial appeals can be complicated.  First, you must determine whether you are entitled to appeal your case.  Currently,[1] you have an automatic right to an appeal if your approved court-martial sentence included:  1) death; 2) a dishonorable discharge; 3) a bad-conduct discharge; 4) a dismissal; or 5) confinement for one year or more.[2]

If you do not have one of the above sentences, you do not have an automatic right to an appeal before a military court.  Instead, if you were convicted at a general court-martial but did not receive one of the above punishments, your case will be reviewed by the Judge Advocate General of your Service.

The Steps to Take if You Have an Automatic Right of Appeal

If you do have an automatic right to appeal, then the first step is at the Court of Criminal Appeals (CCA) for your specific Service.  There exists a CCA for the Army, Navy and Marine Corps, Air Force, and Coast Guard.  In each case, the process is similar.

First, you are assigned a military-appointed appellate defense counsel.[3]  Despite this assignment, you are also able to secure a civilian defense counsel.[4]  You can read here why using a military-appointed counsel may not be in your best interest.  Securing counsel immediately is important because, absent an extension, you generally only have 60 days after the file reaches the office of The Judge Advocate General to file your appeal before the CCA.  Once you have secured your appellate counsel, the attorney should usually contact your trial defense counsel to discuss any errors he or she believes occurred.

Reviewing the Record of Trial

Next, your attorney should review your Record of Trial (ROT), seeking any and all errors which occurred at trial that may have been missed by the trial defense counsel.  These steps are critical to gain the “universe” of errors and to begin establishing which ones should be raised on appeal.

After the record is reviewed and the universe of errors established, your attorney should begin assessing the various errors and discussing with you which ones should be raised, and why.  If for whatever reason, you want to raise errors your attorney does not, <<you should insist on raising those issues>>.

Drafting and Filing the Brief for the CCA

The next step is drafting the brief for the CCA.  This step is likewise critical because it focuses both you and the attorney on the issues which have the greatest likelihood of success.  Next to reviewing the record, this step takes the longest period of time.

After the brief is drafted and filed with the CCA, the Court will take, on average, 6-18 months to review your case.  If only some or none of the issues raised are successful, you can then seek to appeal your case to the Court of Appeals for the Armed Forces (CAAF), the military’s highest court.

Appealing to the Court of Appeals for the Armed Forces (CAAF)

This request for review must be filed within 60 days of the date you are notified of the decision or the date the decision is mailed to you after your counsel is notified.[5]  However, unlike the CCA, CAAF is not required to review your case.  Instead, with some exceptions, CAAF picks and chooses the cases it will hear.  Such discretion makes having an experienced appellate counsel, one who has actually worked inside the court, all the more critical.

Get an Experienced Military Court Martial Appellate Lawyer on Your Side

If you are seeking an experienced appellate counsel who can make the most of your case on appeal, feel free to give me a call.

As the former senior legal advisor to the Chief Judge at CAAF and someone who has handled and advised on 1000+ appeals, I know what it takes to argue successful appeals and would be happy to discuss your case with you.  All consultations are free of charge.

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[1] This rule is likely to change January 1, 2019 and will involve significant changes to the right of appeal.  For more information on the proposed changes, click here.

[2] Article 66, Uniform Code of Military Justice (UCMJ).

[3] Article 70(c), UCMJ.

[4] Article 70(d), UCMJ.

[5]  Rule 19, CAAF Rules of Practice and Procedure.