Four Facts that May Help You Understand Your Military Appeal

If you were tried and convicted by a court-martial then there’s a good chance you’re wondering what happens next. Since you’re reading this, you are most likely out of the brig. The next question on your mind is probably: what about my appeal?

First off, it’s incredibly likely that you get one. Military criminal cases are sent for an automatic appeal if the sentence imposed included a punitive discharge (such as a dismissal for officers, a dishonorable discharge, or a bad conduct discharge) or confinement in excess of one year. And it’s just an unfortunate fact that virtually every conviction by a military court-martial includes a punitive discharge.

If your case qualifies for an automatic appeal the legal office that services your command will create a “verbatim” record of trial. That’s just a word-for-word record of everything that was said at trial along with all the motions and exhibits that were used. As you can imagine, this process takes some time, but it’s generally supposed to take around 120 days for the record to get processed and for the authority that convened your court-martial to take action on your case. After that, it’s supposed to get to the reviewing court and be “docketed” by the court within another thirty days. (“Docketed” just means that the court puts your case on the list of cases to be heard.)

At this point, you’ll be assigned a military attorney to handle your appeal. Most likely, they’ll call you at whatever phone number you left with your appellate leave activity. During this initial phone call, they may or may not have fully read the record of trial in your case. Some attorneys like to call the client before they know anything about the case and others like to read everything they can about the case before making first contact. One approach isn’t necessarily better than the other. You should, however, take this opportunity to get to know your assigned lawyer. You may want to ask them whether they’ve handled a case like yours before and how many appeals they’ve done. Trial work provides a good background for appellate work but ideally your attorney will have done both. Also ask yourself whether you feel comfortable with this lawyer. Do they seem sincere in representing your best interests? You only get one appeal so you want to make it count. That brings me to my first fact.

  1. You’re behind the eight ball here.

At trial, you were presumed innocent; on appeal not so much. The general presumption during an appeal is that the trial was performed correctly. The burden is often on you (or really your lawyer) to demonstrate that that there was not just something legally wrong with your trial but that the error affected the outcome of your trial as well. If it sounds like this is a difficult standard to beat, that’s because it is. Nonetheless, cases are overturned on appeal fairly regularly.

In a trial, the focus is on whether the defendant did the crime he was charged with. In an appeal, the focus is on whether the trial the defendant got was fair. Because of this, the focus of any appellate attack in a case should be the military judge. Think of the military judge like the referee in a football game. A ref makes many calls during a game and a bad call can swing the game for one side or the other. So if you were trying to determine whether the outcome of a particular game was fair you might start by looking at the calls the refs made. In the same way, if you’re trying to prove that a trial was or wasn’t fair, you might start by looking at what the military judge did. The military judge makes numerous rulings that can sway a trial for the government. When that happens, it’s called prejudicial error. (That is, the error “prejudiced” or harmed you.) And because military judges necessarily have to make many more rulings (or calls) during a contested trial than they do during a guilty plea, verdicts in contested trials are more likely to get overturned than verdicts in guilty pleas. Having said that, though.

  1. Just because you pleaded guilty doesn’t mean that there’s nothing that can be done.

It’s true that a guilty plea waives most errors and motions. This is called the “guilty-plea waiver” doctrine and it exists for a very good reason. In a military trial, the judge, prosecutor, and defense counsel all take great pains to ensure that a defendant understands what it means to plead guilty. If you pleaded guilty, you know what I mean. Your lawyer had to talk to you about all the rights you were waiving during your guilty plea and the judge had to go over them again on the record. Despite these safeguards, guilty pleas still can get overturned.

It typically happens when the defendant says something that is inconsistent with pleading guilty and the judge doesn’t take the time to investigate the statement on the record. For example, if the defendant in an unauthorized absence case says he left because he had to go and save his dying mother and the military judge does not examine any possible defenses that this statement raises, then the guilty plea could potentially get overturned on appeal. Although this is generally rare, it does happen.

  1. Your trial attorney limited the potential universe of your appeal.

This is a simple but important point that underscores the importance of having experienced counsel on your side during trial. As I told you before, the appeal is an inquiry into whether or not your trial was fair. In that context, it is limited to a review of what actually happened at trial. Because of this, there is only a limited ability to attack the things that your lawyer didn’t do. Does this mean that your lawyer messed up if he didn’t do “X” (where X is something you suggested)? No, probably not. But it does mean that the actions of your attorney affect your available options on appeal. As a result, it’s important that you have a trial attorney who understands not just what’s going on in the moment of trial but how it will look later if the case must be appealed. They must understand and use the proper process for preserving issues on appeal. My final tip is a practical one.

  1. You are entitled to many of the benefits you had while on active duty during your appeal.

Until your conviction is final, you are on appellate leave. As such, you have access to many of the benefits that you had while on active duty. All you need to do is talk to your appellate leave activity and ask them how you can get an ID card while you are on Appellate leave. With that, you can shop at the commissary and the exchange and use most on-base facilities. In addition, you may still be eligible to use your GI Bill benefits if you had at least one honorable discharge. Since military appeals can often take up to or more than a year, it may well be worth your time to take some classes using the benefits you earned.

-Kirk

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