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UCMJ Court-Martial Appeals
Convicted at Court-Martial for a Military Sexual Assault and Need to Appeal
For the moment at least the Congress and others have not sought to take away the right to appeal a court-martial finding of guilt and sentence for a military sexual assault.
If you are convicted at court-martial there are two avenues of appeal, depending on the sentence that was given. Your military defense lawyer should have explained to you about post-trial actions to appeal or seek a reduction in sentence.
In 2021 the Congress has established a new system of court-martial appeals depending on the sentence; if you get confinement of two years at least and/or a discharge (Bad Conduct, Dishonorable, Dismissal). The Mandatory review under Article 66, UCMJ, starts first with the Air Force, or Army, or Coast Guard, or Navy-Marine Corps Court of Criminal Appeals (CCA). You have a military defense appellate lawyer appointed and you can hire a civilian attorney.
The 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 can review the legal and factual sufficiency of the evidence against you. The rule for doing that has changed and there have been some restrictions and further review added to the process. Frankly, this seems designed to make it harder for an accused to demonstrate their innocence on appeal. The CCA also looks at legal errors in the trial which individually or cumulatively show that you did not get a legally fair trial. Depending on what the error is, the court can dismiss charges, can set-aside the conviction and permit a retrial, or the court can reduce the sentence. Military defense lawyers with experience know what the issues are and how best to raise them. Experience also brings with the ability to identify new issues caused by a change in the law or a need to argue for a change in the law.
The appeal process is fairly straightforward.
1. Your military defense counsel will get a copy of the record of trial. This “document” can be quite thick with hundreds of pages. The lawyer then closely reviews and reads that record looking for errors.
2. Once the appeal lawyer is satisfied they have found all the errors, they should then talk to you about what you think was wrong with your case. They should outline for you the problems they have found and give you a general idea of success. They should also talk to you about Grostefon issues.
If you lose in the CCA, you have the right to petition the Court of Appeals for the Armed Forces, under Article 67, UCMJ. And from there is a limited possibility of an appeal to the Supreme Court of the United States. There have been occasional efforts in Congress to broaden and improve access to the Supreme Court for the military convicted, but without success so far.
If you did not get the “qualifying” confinement and/or discharge, then there is still a process to appeal; but the process is new, complex, and is having growing pains.
Having reviewed more than a two-thousand records of trial and conducting appeals since 1991, I have the experience to review your record and recommend how best to appeal a conviction, and the likelihood of success.