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After a person has been convicted of a crime before a court-martial, the prospect of appealing that conviction may appear daunting. The trial did not go as expected, and now the service member faces years of prison, a Bad Conduct or Dishonorable Discharge and the burden of being a convicted felon for the rest of his or her life. Often times, however, the conviction resulted from errors made by the military judge or the evidence does not support the verdict. Fortunately, the Uniform Code of Military Justice provides service members not only with a way to appeal their convictions but also substantially more due process than many state appeals systems.
In all court systems in the United States, there is a post-trial process that allows a convicted defendant to challenge the conviction and/or sentence that was imposed. Generally speaking, defendants can, and are sometimes required to, bring these motions or they may “waive” the issues on appeal. The post-trial motions are required to be brought within a specified timeframe, and they may raise legal errors made by the court. Post-trial motions can also raise the issues of legal sufficiency of the evidence (the evidence does not support the verdict) or that the verdict was against the weight of the evidence.
The same process applies in the military justice system. Articles 60, 60a and 60b of the Uniform Code of Military Justice (UCMJ) set forth the process that applies after the trial has been completed and the sentence has been imposed. There is a lot of confusion surrounding the application of these articles at the current time because of recent changes to these articles, and different rules apply depending on when the court-martial occurred. Therefore, each case is different.
Under the Rules of Court-Martial, post-trial motions must be filed with the military judge within 10 days of the delivery of the record of trial on defense counsel. These post-trial motions can raise legal errors and the legal sufficiency of the evidence to support the conviction. Issues can also be raised with the Convening Authority. It is important to consider whether and how issues should be raised.
Courts-martial are tried pursuant to a complex set of Rules of Evidence and Rules for Courts-Martial. In addition to these technical issues, constitutional issues (related to the seizure of evidence and the confessions of the accused), instructions to the members of the court, the meaning of the punitive articles of the UCMJ and many other issues can be raised on appeal. Errors can and do occur, and all of these errors can be raised on appeal. The appeal can also raise the sufficiency of the evidence.
There are a couple of issues that are not necessarily apparent on the record. On issue that occurs with some frequency in courts throughout the United States at both the state and federal level is “ineffective assistance of counsel”. The other involves prosecutorial misconduct. In state courts, these issues are raised in state post-conviction review statutes at the state level and in motions under 28 U.S.C. 2255 motions. These same issues can be raised before the military judge if they are discovered in a timely manner. Otherwise, these issues can be filed in a Motion for a New Trial filed with the Judge Advocate General or the Criminal Court of Appeals, as appropriate, under Article 73 of the UCMJ.
Common issues on appeal include:
This list is not exclusive, and there are many other issues that can be raised on appeal.
The military justice system is a unique, world-wide jurisdiction. All of these cases, however, are appealed to criminal courts of appeal in Washington, DC. There are actually fours courts created under the UCMJ. They are:
Each court is composed of senior commissioned judge advocates of the service who sit in panels of three judges. Unlike courts-martial, however, these courts do not conduct trials or hear evidence. Rather, they review the record from the court-martial for legal errors. If the Court of Criminal Appeals can: affirm the conviction and sentence (if the error does not have a material effect to the substantive rights of the accused, pursuant to Article 59); set aside the conviction and order a new trial; set aside the conviction and free the accused; or, set aside or modify the sentence.
The authority to which a court-martial judgment can be appealed depends upon the sentence that has been imposed. Pursuant to Article 66 of the UCMJ, the Criminal Courts of Appeal are required to review cases where the punishment imposed includes either confinement for two years or more, a punitive discharge (bad conduct discharge or dishonorable discharge) or death. An accused may also appeal a general or special court-martial conviction if the sentence is not subject to review and includes a sentence of more than six month. If the sentence cannot be reviewed by one of the Criminal Courts of Appeal, it may be reviewed by the service Judge Advocate General pursuant to Article 69 of the UCMJ.
Unlike civilian courts of appeals which are bound by the credibility determinations of a jury, the courts of criminal appeals, can re-weigh the evidence if there is a controverted issue of fact and determine witness credibility on its own. Therefore, an appeal to the Court of Criminal Appeals can be much broader than a civilian appeal.
The courts of criminal appeals are military courts presided over by military officers. Once the court of criminal appeals renders its judgment, if the decision is adverse, there is another court which can hear the appeal—the Court of Appeals of the Armed Forces. Unlike the Courts of Criminal Appeals, the Court of Appeals of the Armed Forces is a civilian court comprised of five civilian judges appointed for 15-year terms. It reviews cases where the penalty imposed involves death, cases referred by a Judge Advocate General of a Service and cases from the Courts of Criminal Appeals in its discretion. Therefore, an accused may petition the court for review, but it is not required to accept the appeal.
Commander Boyle has represented hundreds of service members on appeal and understands how to present a case to the Court of Criminal Appeals and the Court of Appeals of the Armed Forces. During his time as a Navy Judge Advocate, he served as the Executive Officer of an Appellate Defense Unit responsible for representing Navy and Marine-Corp members of appeal. After serving in that capacity, he was selected to serve as a Court Commissioner on the Navy-Marine Corps Court of Criminal Appeals where he had the opportunity to learn the inner workings of that court.
In civilian life, after serving on active duty in the Navy as a prosecutor, Mr. Boyle worked at a First Assistant District Attorney and a Special Assistant U.S. Attorney. For the past thirty years, he has committed himself to defending the rights of the criminally accused. The decision to hire a defense counsel, however, is not only about experience and accolades; it’s about whether the attorney cares and is able to help. Let’s talk about your case so that you can determine whether we are the attorneys for you.