This page deals with appeals from a court-martial conviction.
I have been representing people in court-martial appeals since 1991.
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.
What do you do in the morning? 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.
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.
What are we currently working on:
In United States v. Condon, the Court of Appeals for the Armed Forces has granted our petition. The Air Force Court of Criminal Appeals opinion is available here. Our issues are:
I. UPON REQUEST BY THE DEFENSE COUNSEL AND UTILIZING A DEFENSE PROPOSED INSTRUCTION, SHOULD THE MILITARY JUDGE HAVE PROVIDED THE MEMBERS WITH AN EXPLANATION OF THE TERM “INCAPABLE”?
II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT’S INVOCATION OF HIS RIGHT TO COUNSEL IN HIS AFOSI INTERVIEW AT TRIAL OVER DEFENSE OBJECTION, AND IF SO, WHETHER THAT ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.
In United States v. Lightsey, the Court of Appeals for the Armed Forces set-aside the AFCCA decision for reconsideration in light of United States v. Hukill.
A petition for a writ of certiorari to the United States Supreme Court in United States v. Schloff was filed and denied. Now we are working on his mandatory appeal where we will challenge the sufficiency of evidence for a guilty finding and several legal errors which we believe prejudiced the client--including Unlawful Command Influence. Essentially we will argue that the carcinoma of UCI invaded the jury deliberation room during discussion on guilt or not guily. [Update] The case is now in the process of regular appeal before the Army Court of Criminal Appeals. All the briefs have been submitted and we now await the decision of the court. We are focussed on a major issue of Unlawful Command Influence in the members (jury's) deliberations. We have a declaration of one member which says that at least two members may have decided guilt based on Army policy and public relations dealing with sexual assault cases.
We have several other cases pending decision with the Army, Coast Guard, and Navy-Marine Corps courts of criminal appeals.
On 23 October 2015, United States v. Plant was re-docketed with the Air Force Court of Criminal Appeals. In this case we were successful with the Air Force court in having them disapprove 12 months of the sentence. That was the possible maximum punishment for the erroneous conviction and the AFCCA agreed with our argument.
I was successful in getting a new trial in United States v. Garcia. I represented him at the retrial and he was acquitted of the rape charge.
Special (SPCM) or general court-martial (GCM).UCMJ Article 66(c).
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.
The cases below are just a selection of appellate cases I have handled over the years.
During the 2015 Term, the Court of Appeals for the Armed Forces had several hundred petitions for review. Of these, they granted in approximately 40 argued cases, and issued a number of summary dispositions.
Of those, three were litigated by me.
United States v. Pinkela . The court held:
On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE.
The decision of the Army Court of Criminal Appeals is vacated and the record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration in light of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015).
Recently the case was redecided by the Army court and we are preparing a second petition for CAAF. So, this case isn’t over yet.
United States v. Plant . This case was decided in our favor. The issue was whether the facts were legally sufficient to prove child endangerment. The legal sufficiency review is a very tough standard to win. At least one commentator has said that:
I believe that Judge Ohlson’s majority opinion is likely to become a significant precedent. His conclusion that CAAF “may not examine” the circumstances surrounding the alcohol consumption is a significant limitation on legal (and factual) sufficiency reviews.
United States v. Jorrell . An interesting case about religion, and whether the persons religion based belief that they could turn people into frogs can be used to impeach their testimony.
United States v. Schloff . This was a government appeal of the judge’s dismissal of the case after trial. The question was whether the facts alleged constituted a crime under Article 120, UCMJ. Unfortunately, the case was decided against us 3-2. However, this case is not over. We are due to file a petition with the United States Supreme Court in December. After that, if the Supreme Court denies relief, that will then start the appeal of thefull trial. At least one commentator has said that:
The majority’s conclusion that a sexual contact touching may be accomplished with an object effectively confirms that the Government could charge such a dodge-ball bully with a sexual offense, and it firmly establishes that Article 120 is an incredibly (and perhaps dangerously) broad criminal statute.UCMJ Article 69(a).
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.UCMJ Article 69(b).
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.UCMJ Article 69(d).
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 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.