MILITARY COURT-MARTIAL APPEALS
With the upswing of allegations of sexual assault and public scrutiny from Congressional pressures, not only is the number of sexual assault courts-martial on the rise, but so too are the number of cases that are subject to appeal.
Recent amendments that created mandatory maximum penalties in sexual assault cases that include punitive discharge means that in cases where the government achieves conviction the service member has an increased opportunity for meaningful appeal.
RIGHTS OF APPEAL
A convicted military member’s rights of appeal hinge on the specific terms of his sentence (punishment). In a case where the member receives confinement in excess of 180 days (so 181 days or more) OR the member receives a punitive discharge (Bad Conduct Discharge or Dishonorable Discharge for enlisted / Dismissal for Officers), the service member is entitled to an automatic appeal through the military appellate courts.
Anyone convicted with either or both of the above qualifying punishments has the right to detailed military appellate counsel. Each of the services has appellate counsel that work and reside in the Washington, D.C. area. Most of the non-supervisory appellate counsel that bear the brunt of the work are second-term judge advocates that likely served part of one term in military justice as a trial counsel (prosecutor); some have also served as defense counsel.
Just as at the trial level, a military member can opt to hire independent civilian counsel to handle the entirety of the case or to handle the majority of the responsibility with the detailed appellate counsel staying on in a supportive role. Also, just as at the trial level, the detailed appellate counsel is provided at no cost to the convicted member, and independent civilian counsel are obtained at the member’s cost.
With the amendments and addition to mandatory punitive discharges for several sexual assault offenses, more members are afforded the right of an automatic appeal, whereas prior to the 2014 amendments, a person convicted of a sexual-assault type offense might not be entitled to an automatic appeal for receiving a sentence that was not severe enough to trigger the automatic appeal provisions.
OFFICE OF THE JUDGE ADVOCATE GENERAL
For those members that are not “kicked” from the service with a punitive discharge and do not receive more than 180 days in confinement, their rights of appeal are greatly diminished. No appellate counsel is appointed and largely detailed counsel do not get involved with a petition to the Office of the Judge Advocate General (OTJAG) of the member’s service branch. Though the case is reviewed automatically, if no advocate drafts even a memorandum to orient those at the OTJAG to the issues in the case, there is not much hope for relief. Petitions to the OTJAG level also are made more difficult because the transcript provided is merely a summarized one (and not verbatim or “word for word”) of the proceedings. Often the issues that are most ripe for relief from a reviewing body get glossed over by inexperienced paralegals (court reporters no longer prepare the summarized transcript), which are compounded by uniformed counsel not reviewing the summarized transcript to ensure that any meaningful issue was properly recorded in the transcript. Objections and challenges to panel members must be particularly included or else the reviewing body cannot determine if the military judge made the right decision. Transcripts that reflect only “Defense objected to evidence. Military judge overruled the objection” will not sufficiently protect the record going forward for the member. Often once a case concludes with a non-verbatim transcript, the detailed military counsel checks out mentally and does not bother to even review the transcript. Even if civilian counsel was hired for the trial, in most scenarios, the civilian counsel’s responsibilities conclude at the announcement of the punishment. Even in cases that a summarized record is prepared, the government retains the audio of the proceedings and the tapes can be provided to a savvy defense counsel post-trial.
TIMELINE FOR A MILITARY COURT-MARTIAL APPEAL
AUTHENTICATION OF THE RECORD OF TRIAL
From the date of conviction until all appeals complete can take from two to four years. After the announcement of sentence, punishment begins immediately unless otherwise deferred by the convening authority, which rarely occurs. After the transcript is completed and reviewed by the defense counsel, government counsel, and the military judge and the government assembles the record of trial (the transcript plus all “allied documents” including motion briefs, appellate exhibits, trial exhibits, convening orders, etc.) the military judge authenticates the record of trial (certifies its accuracy and completion).
After authentication of the record of trial, the member and / or his detailed counsel receives service of that record of trial for preparation of clemency matters. Clemency is a request by the member to the convening authority to take some favorable action post-trial. Favorable action can include disapproving the findings and sentence (setting aside the trial altogether), reducing punishment, disapproving one or more convictions, deferring forfeiture of pay to the benefit of a family member, a combination thereof, or any other favorable action within the control of that convening authority. Ordinarily, clemency matters are due within 15 days service of the record of trial, but the convening authority can grant an additional 15 days to submit matters.
APPELLATE BRIEF TO THE INTERMEDIARY COURT OF CRIMINAL APPEALS
After the convening authority reviews and takes action on requests for clemency, the record of trial is packaged and sent to the defense appellate division for receipt and assignment of detailed military counsel. The initial appeal must go to the service branch’s intermediary service court of criminal appeal. The Army’s is known as A.C.C.A. (or Army Court of Criminal Appeals); the Air Force’s is similarly named the A.F.C.C.A. (or the Air Force Court of Criminal Appeals); the Coast Guard is named the Coast Guard Court of Criminal Appeals (U.S.C.G.C.A.), and the combined Navy and Marine Corps intermediary appellate court is named the Navy-Marine Corps Court of Criminal Appeals (N.M.C.C.A.).
The appeal itself is a written brief outlining the issues that the attorney believes warrant relief, which is supported by evidence from the record of trial and includes citations of support to military and Supreme Court case law. Attorneys routinely ask for and receive extensions to file this initial brief. Typically, attorneys for the person convicted (known as the ”appellant”) request up to several months to file the initial brief. Once the initial brief is filed by the attorney representing the interests of the convicted person, the government is provided an opportunity to respond to the appellant’s brief, known as the “response brief”. The government appellate counsel also routinely requests and receives extensions in filing the response brief but is ordinarily filed within a few months of receipt of the appellant’s brief. In certain circumstances, counsel for the appellant may wish to file an additional brief to address issues raised by the government’s brief; this additional brief is known as the “reply brief” and ordinarily is filed within a few months of the government’s brief.
In some cases, the intermediary court of criminal appeals grants oral argument to permit the parties to argue in front of the appellate judges and to respond to questions the judges have about issues in the case. Oral argument typically occurs in Washington D.C. at the Court itself but on occasion occurs at locations around the U.S. as part of a law school outreach program. In any case in which oral argument is granted, the argument itself takes place any where from two to four months after the filing of the last brief.
DECISION OF THE INTERMEDIARY APPELLATE COURT
After oral argument occurs, most typically the court will render a formal decision from one to four months later.
From time to time, the intermediary appellate court determines that it does not have a sufficient factual basis to render its decision. In such cases, the court orders what is known as a “DuBay” hearing so that a trial court level judge can obtain more information from which the appellate court can base its decision. During a DuBay hearing the appellant is represented by counsel and the issues typically are fairly narrowed to one or more issues to help guide those below as to what precise information the appellate court seeks to render its decision.
When the intermediary appellate court has sufficient information on which to base its decision, the court can grant several different kinds of relief up to and including relief from one or more convictions. Relief can also include reduced punishment based on relief from one or more convictions or simply out of fairness, though the latter exceedingly is rare. Even after relief from one or more convictions, the court could determine not to adjust the sentence. Another form of relief that an intermediate appellate court can grant is to permit a sentence rehearing where the convictions remaining are assessed for sentence in a new presentencing session at a trial court level court-martial session.
If relief is denied, the appellant can pursue an application before the Court of Appeals for the Armed Forces (C.A.A.F.), the military’s equivalent of a Supreme Court. The C.A.A.F. can affirm the lower court’s opinion without conducting meaningful analysis, can affirm the lower court’s ruling with analysis, or can reverse the lower court’s determination.
If the C.A.A.F. reverses the lower court, the C.A.A.F. can send the case back to the lower court, can set aside the conviction, reduce the sentence, or grant other forms of favorable relief.
The variability of the timeline in any given military member’s court-martial appeal pertains to how many extensions are requested and given, if relief is granted, and how many petitions are filed.
PETITION TO THE U.S. SUPREME COURT
The last resort to a member denied appellate relief from the military appeals courts is to petition the Supreme Court of the United States (SCOTUS). The SCOTUS rarely grants military petitions as it asserts certiorari only in cases that conform to the Court’s justiciable matters.
ISSUES TO RAISE ON APPEAL
An experienced court-martial appellate attorney will review a court-martial conviction for factual sufficiency, which means an exploration as to whether or not there was sufficient evidence presented at trial for the finder of fact (the judge or panel who decided guilt) to conclude all elements were proven beyond a reasonable doubt. A related but different avenue for exploration on appeal is whether or not the trial level attorney represented the client to an adequate legal standard; this review is checking for Ineffective Assistance of Counsel (IAC). Raising ineffective assistance of counsel means that the appeal is alleging that the trial defense counsel’s representation fell so far below the standard necessary for effective representation. The bar for effective representation arguably is quite low, but that should not preclude an appellate counsel from reviewing the issues raised, the issues not raised, investigation explored, and objections made or not made to evidence the government elicited at trial. Convictions can be set aside if the military trial attorneys did not conduct a thorough independent investigation by pursuing leads that the counsel were aware of or reasonably should have been aware of, effectively cross-examine a complainant of prior inconsistent statements, and use effective trial strategies. In a 2015 decision by the Navy-Marine Corps Court of Criminal Appeals, a naval academy midshipman’s convictions for making a false official statement, two specifications of rape, two specifications of aggravated sexual assault, and wrongful sexual contact were reversed when his defense counsel failed to meet standard for effective representation. The court determined in looking at the totality of their collective representation, the defense counsel did not follow through as needed on aspects of cross-examination and impeachment (contradicting in-court testimony with prior statements or with contradicting evidence), and that in asking a defense witness if she believed the midshipman accused was trustworthy, the witness answered she did not believe he was. Additionally, the appellate court found that when the midshipman took the stand in his own defense, his military attorneys had not advised him that his previously suppressed statement (for a violation of his Miranda law enforcement warnings) could and would be used against him as impeachment evidence of a prior inconsistent statement.
INEFFECTIVE ASSISTANCE OF COUNSEL FOR SENTENCING:
A trial court attorney’s performance on findings is not the only level of scrutiny he should receive. Recent military appellate court opinions concluded that attorneys at the trial court level were ineffective for sentencing. In 2014, the Court of Criminal Appeals affirmed the Army Court of Criminal Appeals opinion that both civilian and military defense counsel were ineffective for sentencing when they failed to: (1) interview or call witnesses that were the appellant’s former supervisors who would have offered positive testimony about the appellant’s service in garrison; (2) offer any evidence of the appellant’s bravery in combat; (3) present any certificates, decorations, and other awards during sentencing; and (4) offer any other evidence which might tend to be extenuating or mitigating. See generally United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998).
Another issue that independent counsel should pay particular attention to, was whether or not the trial itself provided sufficient evidence upon which the fact-finder could determine each element of every offense was proved. The standard examines if the evidence adduced at trial can as a matter of law and fact provide a sufficient factual basis to prove each and every element of each and every offense. The review can essentially put itself in the place of the finder of fact to determine if the evidence was enough to sustain a conviction beyond a reasonable doubt. When relief is granted as to a factual sufficiency, convictions are reversed. In a 2015 appeal, the Navy-Marine Corps Court of Criminal Appeals reversed a sexual assault conviction based on the statutory construction of how the appellant had been charged. The Court concluded that when the appellant had been charged under the theory that his accuser was incapable of consenting and yet there was specific details offered by the accuser that she recalled kissing him back and giving him compliments about his appearance, using her own power to hold herself up during sexual acts, as a matter of fact and law, she could not be said to be incapable of consenting.
DENIED CHALLENGES FOR CAUSE OF PANEL MEMBERS
When the accused chooses a panel for the trial, the trial defense counsel has an opportunity to question those potential members to determine whether any member has either an actual or an implied bias, and when the counsel believes that either or both is present, that counsel may “challenge” that member from serving and provides to the military judge the bases for their challenge. If a military judge improperly denies a defense challenge of cause and that decision constitutes an abuse of his or her discretion, the appellate counsel raises the review on appeal. In some cases, such an abuse of discretion may result in the reversal of conviction. Such was the case in 2007 when an Air Force trial judge refused to grant a challenge for cause of a member who worked as the right-hand of the commander who had convened the court-martial and often sat in for the commander during meetings. Accordingly, the conviction was set aside, though the appellate court also granted a rehearing of the case.
FAILURE TO PROVIDE PROPER INSTRUCTIONS TO MEMBERS
Instructions are the legal blueprint that guides the panel’s deliberation. Before a court-martial panel closes to deliberate on the findings, the military judge reads and provides them a list of complex instructions about how they can use the evidence presented before them, the legal standard, the elements of the offenses, and what is required in order to convict the accused. The instructions include a detailed recitation of the elements of each offense and information about evidentiary instructions such as how to weigh and evaluate any circumstantial evidence, prior inconsistent statements, and character evidence. Additionally, the military judge must include information for the members about available defenses and to which offenses those defenses apply. Often counsel disagree as to which defenses were reasonably raised by the evidence in any given case, and even if the government objects to an instruction on a defense or the defense counsel does not ask the judge to give the instruction, the military judge has a sua sponte (Latin term for on his own) duty to provide the instruction if it was raised by “some evidence” in the trial. If a military judge fails to provide an adequate instruction, the appeals court can reverse an entire conviction. In 2012, the Court of Appeals for the Armed Forces set aside a conviction when the military judge abused his discretion in not providing the panel with an instruction regarding mistake of fact as to consent in a sexual assault case. Accordingly, the court reversed the conviction.
INAPPROPRIATE DENIAL OF MOTIONS TO SUPPRESS
Evidentiary rulings on motions that take place during trial are also potential fodder on appeal. For instance, when a trial defense counsel files a motion to exclude certain evidence, arguing that it should be suppressed for a violation of a procedural requirement, like failing to give Miranda or Article 31, U.C.M.J., warnings, an appellate court-martial attorney can challenge that judge’s ruling on appeal and assert that the military judge abused his discretion. If a military judge abuses his discretion at the trial court level by either applying the wrong law to the issue or by making “clearly erroneous” findings of fact, which are facts that were not based on any evidence provided or even circumstantially supported. In 2013, the Court of Appeals for the Armed Forces reversed a murder conviction when it ruled that NCIS had illegally re-approached the military suspect without providing him an opportunity to seek counsel as he had previously requested to do when they read him his rights under Article 31, U.C.M.J; the court ruled that the trial judge abused his discretion when he denied the defense motion to suppress the statement the military accused made to interrogators.
STANDARD FOR REVIEW
The standard for review means by which benchmark is a given decision or issue being reviewed on appeal. Some issues are reviewed for an abuse of discretion. Others are reviewed “de novo” meaning as new. Which standard of review is used depends on the issue itself or in some cases on whether or not the trial defense counsel preserved the issue on appeal by objecting and not waiving it. Many issues at the trial court level are waived if not raised; other issues are never waived even if the trial defense counsel did not raise it. Even when an appellate court finds that error was committed in any given case, in order for there to be any true relief on appeal, the appellate court must also conclude that the error was not harmless beyond a reasonable doubt, but was actually prejudicial in the appellate sense to the military accused. Prejudicial in this sense does not merely represent “not good” but may signify that there could have been a different result absent a different ruling at the time of trial.
Given the standard on appeal is often high and that the number of opportunities is extremely limited, it is imperative that anyone wishing to appeal a court-martial conviction bring to bear the most zealous and effective strategy argued by those most experienced in court-martial appeals. How an issue (or a statement of error) is framed, the case law used to argue the error, and the advocate to present the argument matters. Otherwise, “good issues” may not receive relief.
Ensure that your court-martial record is reviewed for an honest assessment of your chances on appeal and that you are positioning yourself for the best opportunity for relief by hiring experienced counsel that take a small number of appeals and truly care about your representation.