Appeals Under the UCMJ

Legislative changes.

The right to automatic appellate review of a court-martial conviction has changed in several ways.

1. The right to automatic review has changed from one-year confinement to two unless a punitive discharge is imposed as part of the sentence.
1. This bad news,
2. But this is partly addressed by (3) below.
2. The standard of review of factual sufficiency has changed to be more restrictive.
1. This change is bad for the appellant compared to the “old” more favorable standard of review.
3. There is an expanded opportunity for those who don’t fit into categories (1) or (2) above, allowing them to petition for review.

Petition for Review

Let’s address (1) and (3) together first.

If you are sentenced to confinement for more than six months but less than the two-year but didn’t get a punitive discharge, you can petition for review.

Note the rules, the path to follow, and the timing have become complex, and everyone is trying to figure out the timelines.

The change creates more appellate rights for some appellants.

The petition must be filed within sixty days of notification of the decision of the Judge Advocate General under Article 69.

The petition can only deal with “matters of law.” Generally, that means there is no attention to factual sufficiency. 

However, there may be an argument to review for factual sufficiency in a few cases.

A new rule allows the Government to Appeal Sentences.

Article 56(d), UCMJ, has been amended to allow the Government to appeal a sentence they believe is unlawful or is “plainly unreasonable.” This new law will not be effective until the end of 2023. But once it becomes law, you can expect quite a bit of litigation. Your military defense counsel should familiarize themselves with how federal prosecutors can appeal a sentence in federal district court cases. We expect there will be quite a bit of research and adoption of civilian practice. That would be consistent with Article 36, UCMJ, which requires the President in the Manual for Court-Martial to adopt practices in federal district court whenever possible.

If you have been convicted of an offense in a court-martial, it can have a devastating impact on your freedom, your career and your future. There can be severe adverse "collateral" consequences just from the conviction: sex offender registration, loss of the ability to own or possess guns, and limitations on the right to vote. And of course, you may lose all of your hard-earned VA benefits; the most important of which is the educational benefit.

While many courts-martial are automatically appealed, changes made in 2019 open up the formal appeals process to someone convicted but who does not get a punitive discharge or more than one-year confinement. The process is new, but those of us who have done court-martial appeals for many years are still finding this to be a complex process but one extending a benefit to convicted servicemembers.

As you military defense appeals lawyer we work for you. The process involved with appealing a ruling is very complex, and the assistance of an experienced military defense lawyer can be invaluable.

At The Law Office of Cave & Freeburg, LLP, we represent United States service members worldwide in all types of UCMJ violations. We prepared to represent you in the appeal of any conviction. I have dedicated my entire legal career to military defense and security clearance law. You can rely on me to do everything in my power to see that your rights, your privileges and your career remain fully intact.

I have experience handling appeals before the Court of Criminal Appeals as well as the Court of Appeals for the Armed Forces. I understand the unique procedures involved with pursuing an appeal, and I know how to present your case in a way that is compelling to the court. I will conduct a thorough review of your court-martial and develop the most effective approach to getting your conviction overturned.

In order for an appeal to be successful, it must be shown that some error in the proceeding negatively impacted the outcome of the court-martial. Examples of errors that can create grounds for an appeal are as follows:

• Abuse of discretion by the military judge in allowing the prosecution to present certain types of evidence.
• Procedural violations such as discovery problems, speedy trial, or jurisdictional errors.
• Abuse of authority which is called unlawful command influence.
• Failures in the application of the UCMJ
• Factual sufficiency can be raised at the first level of appeal before the court of criminal appeals. If the appeal judges are not convinced you are guilty beyond reasonable doubt they can dismiss the charges. Here again, Congress has been meddling and made it harder and more complex to litigate this issue.

First contact.

The first contact with you or your family member is an initial free consultation. To make that effective we need to know the following (which you could send in an email when you reach out to us).

1. Date of trial?

2. Where was the trial?

3. What was the sentence?

4. What charges were you convicted of?

5. Did you plead guilty or not guilty?

6. Was your trial by Members (jury) or was it military judge alone.

7. Did you testify?

8. Who were your lawyers at trial?

After this consultation we can do a Case Evaluation. (We charge a fee for this.)

Here we thoroughly reviewed all the available documents and record of trial, talk to you, talk to your defense counsel; after which we give you an analysis of your case.

If we cannot help you we will tell you that.

If we can help you, we will then discuss the fee for full representation.

Full representation.

1. We get the full record of trial and do another thorough review.

a. The first read helps us get an understanding of the case and pick out what we see as glaring errors or interesting issues.

b. We then talk to you again and give you homework. We want you to write down everything you think was wrong about your trial. This helps us as we do more review of the case.

c. The second read is focused on what happened during the trial; the testimony, the cross-examination, objections made by your defense counsel, pretrial motions to admit or exclude evidence or get expert assistance, the prosecutors arguments, the judge's instructions; and also the exhibits. As we go through we are taking notes and doing some basic research as a way to outline the issues for appeal.

d. We will talk to you again and explain what we are seeing and out thoughts. We will ask you to give us feedback and your thoughts.

e. The third and fourth look is where we start writing your brief for submission to the court. We are outlining the issues and writing arguments based on the facts and the law.

f. As we go through the drafting stages we constantly refine the arguments and find additional caselaw to support your cause. We also try to think creatively and "out of the box." We are always interested in developing new issues or arguments.

g. Once we have a final draft we will get you a copy to review.

h. The last step is to double-check everything.

i. Once we all are satisfied with the brief it will get filed.

NOTE: all of this takes time because we want to get it right.

THE EFFECTS OF NEW STATUTORY CHANGES ARE NOW SHOWING UP IN APPEALS.

An “enlisted” panel convicted HM1 Harvey of indecent exposure, but found him not guilty of sexual assault and a battery. He got one year and a DD.

United States v. Harvey is a published opinion and is the firstfrom NMCCA under the new “factual” sufficiency standard applicable to offenses committed after 1 January 2021. Congress intended to make it harder for an appellant to get a reversal of a conviction based on the facts or absence of facts. There is a narrowing effect on what can be argued for dismissal of the charge.

Your military defense lawyer should now be aware of how the recent UCMJ amendments have affected many aspects at trial, but just as importantly how you might win on appeal. The lawyers at Cave & Freeburg are up-to-date on what’s happening and keeps track of all rule and legislative changes affecting courts-martial.

The legal questions related to the meaning of several phrases in the new statute: “deficiency in proof,” “appropriate deference,” “clearly convinced” and “against the weight of the evidence.”

Deficiency: this has to be a “weakness” in the evidence which goes to one or more elements of the offense. But, the appellant has to go further and explain why that results in a faulty finding.

Deference: there is now a rebuttable presumption the conviction is valid and it’s up to the appellant to prove otherwise. This, the court recognizes is a higher standard than previous and puts a significant burden on the appellant.

Clearaly convinced: the courts no longer take a fresh impartial look to see if they themselves are conviced of guilt beyond reasonabl doubt.

Against the weight of the evidence: this is a balancing act which favors the Government and augers for even fewer reversals for factual insufficiency.

Part of his argument was that the offense happened at night in a parking lot where other vehicles obscured people’s observation of what he was doing. He also argued that there was consent for his exposure hy a specfic victim. The court disposed of the arguments by pointing to the presence of security cameras overlooking the parking lot, and of course there could have been passers-by or others parking who might have seen what was going on. The court noted that another car in the parking lot had its headlights on pointed to where the appellant was acting out.

The appellant also challenged the MJ's failure to give a mistake as to consent defense instruction. The court finds that a mistake as to consent is not a viable defense to the charged conduct. Here it is not just the exposure to the victim that matters but that it is the exposure to the general public. There may have been a different result if the event had happened in a private setting and the “victim” did consent or there was evidence of consent. It did not help the appellant's cause that the offenses took place "in public." The court relies on United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007) and United States v. Bailey, 77 M.J. 11 (C.A.A.F. 2017) for its analytical framework.

The court also found (harmless) error in submitting a stipulation for a prior court-martial as a personnel record under R.C.M. 1001(b)(2). Basically, items of a record of trial are not personnel records contemplated by the R.C.M. or the Navy regulation on what is or is not part of a persons military record. The court also noted something that military defense lawyers are aware of: such records are of questionable accuracy, lack relevance, or are incomplete.

So, Discuss Your Case With A Respected International Military Defense Appeals Attorney

You can reach me by phone at 703-298-9562, toll free at 800-401-1583 or via email. Once I am hired, and depending on any travel restrictions, I try to visit each appellate client in the confinement facility once or several times--I find our communications and understanding is much better (there are some additional costs with the travel to anywhere except the Navy Brig at Chesapeake, VA, or Charleston, SC).

We are admitted to practice before 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). Each of the courts is within a short driving distance from us.