UCMJ Appeals

I have been representing people in court-martial appeals since 1991, when I reported for duty as the Deputy Director, Navy (and Marine Corps) Appellate Defense Division.

During the three years of my assignment we were seeing thousands of new cases each years petitioning the CAAF in about 500 a year, and petitioning the U.S. Supreme Court in about 10. How could I not carry my own case-load. I was supervising 20 active duty judge advocates and 20 Reserve judge advocates--I needed to know what they were or should be doing to properly supervise and we were a "crew" that all had to pull together. Of course I learned for my own professional experience--I was fortunate to have some precedent setting cases.

I am admitted to practice before the Court of Appeals for the Armed Forces, the Air Force Court of Criminal Appeals, the Army Court of Criminal Appeals, the Coast Guard Court of Criminal Appeals, and the Navy-Marine Corps Court of Criminal Appeals.

Among the first things I do is go to the website for the Court of Appeals for the Armed Forces (CAAF), the Air Force Court of Criminal Appeals (AFCCA), the Army Court of Criminal Appeals (ACCA), the Coast Guard Court of Criminal Appeals (CGCCA), and the Navy-Marine Corps Court of Criminal Appeals (NMCCA), and read any new case decisions or look at new issues being raised.

Why do I do that? Well, I have cases in trial and I have cases in appeal. It is imperative to stay informed and current with new and developing legal issues and issues that crop up frequently. Every experienced military defense lawyer should be doing that.

If you were prosecuted at SPCM or GCM, and your sentence included a punitive discharge or at least one year confinement you case will be reviewed by the court of criminal appeals (CCA). Unlike a civilian court the CCA acts as a "second jury" and can reverse a finding of guilty. The CCA can also reduce your sentence. See e.g. United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) and United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), interesting companion cases. Basically what this means is that each of the judges of the court have to be personally satisfied that you are guilty beyond reasonable doubt. Even if you were convicted at trial the judges can decide that you shouldn't have been found guilty and enter a not guilty finding.

A CCA may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

The CCA has on occasion been colorfully referred to as the 800-lb gorilla.

This awesome, plenary, de novo power of review grants unto the Court of Military Review authority to, indeed, "substitute its judgment" for that of the military judge. It also allows a "substitution of judgment" for that of the court members.

United States v. Cole , 31 M.J. 270, 272 (C.M.A. 1990).

Moreover, Courts of [Criminal Appeal] are something like the proverbial 800-pound gorilla when it comes to their ability to protect an accused.

United States v. Parker , 36 M.J. 269 (C.M.A. 1993).

A finding of not guilty at trial cannot be overturned on appeal. Your sentence cannot be increased on appeal.

If the CCA denies your appeal then you have the right to petition the Court of Appeals for the Armed Forces (CAAF). Unlike the CCA, the CAAF may only act as to matters of law.

If the CAAF denies a petition for review your appeals are complete and the case is final, you do not have a right to petition the United States Supreme Court.

If the CAAF grants your petition but decides the case against you then you can petition the United States Supreme Court for a writ of certiorari.

A significant part of my practice includes representing military personnel who have been convicted at court-martial. I did my first court-martial appeal in 1991 (my first court-martial trial in 1980).

Can court-martial appeals succeed? Yes. But an honest counsel will tell you that the percentage is low. The chances of success generally depend on the issues identified in a review of the record of trial and whether those issues have been “preserved” by your military defense lawyer at trial. Generally issues are preserved if your military defense attorney has objected at the time of trial either through a pretrial motion of by making an objection during the trial. Note however, that some issues and errors can be so severe that the appellate courts will “waive” a failure to object. In those instances the courts apply a “plain error” analysis.

If you were prosecuted and convicted at GCM, but you did not get a punitive discharge and at least one year confinement, your case will be reviewed in the Office of The Judge Advocate General (TJAG). You don't have to do anything to request this review, it is automatic. But, and you are not told this, you can submit an appeal type brief or request that the TJAG take specific types of actions in your case. If the TJAG has already acted you can request a reconsideration. An experienced civilian military lawyer can help you submit your brief.

If your case was a SPCM and you did not get a bad conduct discharge, then you have the right to petition the TJAG to review your case. There is a two year post-trial deadline for submitting a petition.

If your case was reviewed under either 69(a) or 69(b), the TJAG can certify your case to the court of criminal appeals for further appellate review. The rules do not say this, but you can ask the TJAG to do just that.

An experienced civilian military defense lawyer can help you with an appeal. Contact us for more information and to discuss your appeal.

Waiver. One interesting point is that a person can waive their appeal. LTC Lakin just did this in his case. By withdrawing from appellate review it is possible to speed up the process of complete separation from the military. On the down-side, any further appeal of a military conviction is forfeited; and most importantly for those with a family, medical benefits end.

There are three ways I can help you with your appellate case.

1. Case review and evaluation. For a flat fee I will--
• Talk to the client (in person if possible).
• Review and examine the record of trial.
• Liaise with the trial defense counsel.
• Give an idea of the types of problems I see in the case and require further examination, study, and research.
• The flat fee depends on how the record of trial (ROT) has been put together.
• Prior to 2020 the record of trial included a typed transcript of all the court proceedings, exhibits, the Article 32, UCMJ investigation, and post-trial documents. If you have a paper (or scanned) ROT, then the flat fee is $1,500.00.
• After 2019 the record of trial no longer has a typed transcript--the audio of the hearings is copied to a CD. That means that I would have to listen to the audio. That means more time and complexity in reviewing what happened. Rather than 4-8 hours of reading, I may have two to five days (6-7 hours per day) to listen to.
• The flat then for this review is $2,500.00.
• If you provide a typed transcript of the trial proceedings then I will still charge the $1,200.00 review fee.
• There is another way to proceed. I use a transcription service that charges to prepare a written copy of the audio. The service charges two different rates, one rate for a rough transcript and a higher rate for an almost verbatim transcript. We can chat about this and you can decide.

2. Experienced Civilian Co-Counsel. For a flat fee (to be negotiated) I will--
• File a notice of appearance in your case as co-counsel.
• That means the military appellate counsel is the lead counsel.
• Work with you and the military appellate counsel to ensure the best appeal possible (research, discuss, write).

Huum, what is this you say. I'm well aware that money is an issue for any client, especially once they've been convicted. At the same time the client wants to have help from an experienced trial and appeal defense lawyer. The fee I negotiate for ECCC representation is much less than if I am lead counsel. If you have an appeal case to discuss we can talk further how this form of appellate representation works.

3. Lead counsel. As lead military appeal defense lawyer I am going to be the lawyer who gets everything done or makes sure it gets done in the best way possible. As with all my appeals I negotiate a flat fee based on my initial case evaluation.

Note, if I do a case review and evaluation under Item 1. above, that fee is credited toward any later fee.

Reach out for a free initial discussion and we can see how best to proceed.