Conviction is not end of military legal road - Military Law, Military Law Advice, Ask a Lawyer - Navy Times

Conviction is not end of military legal road

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

DISCUSS: Legal options after conviction

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.

Once submissions are handed in to the Staff Judge Advocate’s Office, they are taken to the convening authority, who will “act” on the case. This means the convening authority approves the sentence, disapproves the sentence or some combination thereof.

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.

As I mentioned earlier, if you received a bad-conduct discharge or a dishonorable discharge, or a sentence for longer than one year, the appeals court will review your case. After the pretrial and trial stage, this first level of appeal is one of the best opportunities to attempt to help your case.

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 composed of five civilian judges appointed by the president and confirmed by Congress for terms of 15 years.

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.

These courts are a tremendous chance to improve the sentence you receive at court-martial. As such, you’re missing an enormous opportunity if you ignore the case once the last day of trial ends.

I’d like to thank my good friend and veteran military appeals attorney Timothy Litka of Washington, D.C., for his help with addressing this complex issue.

Mathew B. Tully Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

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