Conviction is not end of military legal road

[CommunityEditor]

So you’ve been convicted at court-martial. What options do you have?

First, you can submit any matter that you feel could affect the convening authority’s decision pursuant to Rule for Court-Martial Section 1105. Among the many items that could be included are the issues you believe were errors in your court-martial. Listing these issues in your 1105 submission will make for a nice starting point for your appellate lawyer to look for errors that may help you on appeal.

These submissions are not subject to the military rules of evidence and may include allegations of errors affecting the legality of findings or sentence; clemency recommendations; and matters not available during the sentencing phase of your trial.

If you received a sentence of one year or more or you received a bad-conduct discharge, dishonorable discharge or dismissal, an appeal is automatic. As such, all you need to do is talk with your appointed attorney or with the attorney you hire. In this way, you can help give yourself the best chance possible.

The Court of Criminal Appeals for your military service can correct any legal error it finds, and can reduce what it considers to be an excessive sentence.

Under Article 66c of the Uniform Code of Military Justice, the court may only affirm findings of guilty and the sentence or such parts of the sentence that it finds correct in law and fact. In considering the record, the court may weigh the evidence, judge the credibility of witnesses, and determine disputed questions of fact, recognizing that the trial court saw and heard the witnesses.

Most civilian appellate courts can consider only issues of law, not questions of fact. The civilian appellate courts are bound by the findings of fact made by the civilian trial courts.

The power of the military service’s Court of Criminal Appeals to also consider questions of fact is a unique and important right afforded an accused under the UCMJ. Of course, similar to civilian appellate courts, the Court of Criminal Appeals cannot change a finding of “not guilty” to a finding of “guilty,” nor can it increase the severity of the sentence approved by the court-martial convening authority.

Issues that have been raised before the Court of Criminal Appeals in contested cases include: error by a military judge in failing to excuse a panel member for implied bias; evidence that was legally and factually insufficient to support a finding of guilt; a panel that was not properly instructed; and a military judge who allowed into evidence improper aggravation evidence.

If you do not take the appeal to the criminal court seriously, you might miss opportunities to improve your record. You should be in contact with your appellate attorney and explain to them your side of the case. In this way, they understand your record of trial a little more than simply reading the words on the page.

Above all, you should think hard about your Grostefon submission. The case of U.S. v. Grostefon, 12 M.J. 431 (C.M.A. 1982), essentially stands for the fact that you, as the appellant, can have the Court of Criminal Appeals consider any matter you would like it to consider. This is a personal statement from you to the Court where you set out what mistakes you believe were made in your trial. This may include matters on which you and your attorney disagree.

Additionally, don’t think that because you pled guilty, you should ignore your appeal. Even with a guilty plea, the Court can check to make sure the post-trial rules were followed and review whether the sentence you received was too severe.

When the appeal to the Criminal Court ends, you will have a limited time to discuss what, if any, issues are available to petition the Court of Appeals for the Armed Forces, the highest military court.

The CAAF is responsible for overseeing the military justice system. In all but death penalty cases, which it reviews automatically, and cases certified by a service’s Judge Advocate General, the CAAF chooses the cases it will consider from among the many petitions for review that it receives, similar to federal courts of appeal.

In any case reviewed by CAAF, the court may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by a service Court of Criminal Appeals.

Issues that have been reviewed by CAAF include whether petitioners’ due process rights were violated under Brady v. Maryland, 373 U.S. 83 (1963), and whether a military judge erred in allowing a prosecution exhibit at the trial court.


Full article: http://www.militarytimes.com/communi...awyer_070730w/

[Chateauroux]

"Military justice is to justice what military music is to music" -George Clemenceau

[shayusaf]

Maybe someone can help me with this. I was convicted at a summary court martial of dereliction of duty for doing what the AFRS JAG DA told me I could. He was introduced to our class as the subject matter expert on these matters. He even testified at my trial saying the same thing. How can one JAG brief on what to do and another JAG, not even in the field, can find you guilty for doing it!