21 September 2009

Post-Trial and Appellate Rights

1. General. If you are convicted of any charges at court-martial, you still have important post-trial and appellate rights:

a. You can Seek Deferral of the Adjudged Sentence and Waiver of Forfeitures. Any confinement adjudged at your court-martial normally begins immediately. Under the rules, however, your defense counsel can ask the commander who ordered your court-martial (known as the convening authority) to defer your confinement. This means your confinement is delayed, typically pending the commander's action on your sentence. You can also seek deferral of any adjudged forfeiture of pay and a reduction in rank. Forfeitures of pay and reduction in rank normally take effect 14 days after sentence is announced at your court-martial. It is also possible in some cases to ask the convening authority to waive (forgive) your forfeitures of pay and allowances for a period of six months. Waived forfeitures go directly to your dependents for their use. Ask your defense counsel for details on these rules.

b. You have the Right to Present Matters to the Convening Authority. Your defense counsel will help you with this task. The matters you present can point out errors that occurred in the trial or they can explain why the sentence adjudged in court should be reduced. Your best opportunity for relief (either disapproval of some or all of the findings of guilty or for a reduction in the sentence) is from your convening authority.

c. You also have "Appellate Rights." These are your rights to continued legal review of your case by a disinterested military lawyer (Judge Advocate) or senior appellate judges after the convening authority acts on your case. If an appellate court reviews your case, your appellate rights include the right to representation by a detailed military appellate counsel at no cost to you. You may also retain a civilian counsel to represent you on appeal at no expense to the government.

2. Your Right To Submit Matters To The Convening Authority (CA). You have the right to submit any matters you wish the CA to consider in deciding what action to take in your case. Before the CA takes action, the Staff Judge Advocate (SJA) may submit a recommendation to the CA (required for all general courts-martial and special courts-martial with an adjudged bad-conduct discharge). This recommendation will be sent to you and/or your defense counsel before the CA takes action. If you have matters that you wish the CA to consider, or matters in response to the SJA's recommendation, such matters must be submitted within ten days after you or your counsel receive a copy of the record of trial or you and/or your counsel receive the recommendation of the SJA, whichever occurs later. Upon request, the CA may extend this period, for good cause, for not more than an additional 20 days. Talk to your defense counsel regarding what matters to submit to the CA.

3. What are My Post-Trial Appellate Rights and Who Explains Them? Your defense counsel has the duty to explain these rights and advise you concerning the exercise of these rights. The type of appeal or review depends on the level of court-martial and the sentence approved by the convening authority.

4. Will an Appellate Court Automatically Review My Case? If the approved sentence includes death, a punitive discharge (a bad-conduct or dishonorable discharge for enlisted soldiers and a dismissal for officers), or confinement for at least one year, your case will be automatically reviewed by the Army Court of Criminal Appeals (ACCA). If your case was a general court-martial, but did not include one of these approved punishments, then your case will be reviewed by the Office of The Judge Advocate General (OTJAG). If your case was a summary court-martial or a special court-martial with no bad-conduct discharge approved by the CA, then a Judge Advocate not involved with the prosecution of your case will review the case.

5. Tell Me More about Appellate Review by ACCA. If the CA approves a sentence including death, a punitive discharge, or confinement for at least one year, your case will be reviewed by ACCA. You are entitled to representation by counsel before such court. If you so request, military counsel will be appointed to represent you at no cost to you. If you so choose, a civilian counsel may also represent you at no expense to the government. ACCA does a complete review of your case. They review the findings of guilty to make sure they are correct in law and fact based on the entire record. ACCA can uphold or overturn some or all of the findings of guilty. They can also lower the sentence approved by the convening authority. They can never make the sentence more severe. If your case is being reviewed by ACCA, your detailed appellate attorney will keep you informed of the status of the case.

6. What About Appellate Review After Action by ACCA?

a. Review by the Court of Appeals for the Armed Forces. After the ACCA completes its review, you may request that your case be reviewed by the United States Court of Appeals for the Armed Forces (CAAF). The Court must review the record in all cases in which the sentence, as affirmed by ACCA, extends to death. You have the same rights to counsel before CAAF as you have before the ACCA.

b. Review by the Supreme Court. If your case is reviewed by CAAF, you may request review by the Supreme Court of the United States. You have the same rights to counsel before the Supreme Court that you have before the ACCA and CAAF. Less than a dozen military courts-martial have been reviewed by the Supreme Court in the last ten years.

7. Review by OTJAG. If your case was a General Court-Martial and your approved sentence did not require a review by ACCA (e.g. no punitive discharge and confinement for less than one year), your case will be reviewed by the Office of The Judge Advocate General (OTJAG), in the Pentagon. You will not be represented by counsel, nor can you request a hearing or personal appearance. You will, however, have your case completely reviewed by an experienced military attorney for errors at trial prejudicial to your substantial rights. Your sentence will also be reviewed to determine whether it is too severe for the offenses committed.

8. Review by a Judge Advocate. If you were convicted at a Summary Court-Martial or if your Special Court-Martial sentence did not include an approved bad-conduct discharge, then a Judge Advocate will review your court-martial. The Judge Advocate who conducts the review will not be a prosecutor.

9. Can I get a New Trial based on Newly Discovered Evidence or Fraud at My Original Trial? Yes. A new trial may be granted under Article 73, UCMJ on the grounds of newly discovered evidence or fraud on the court. You must petition The Judge Advocate General of the Army within two years of the CA's approval of your court-martial sentence. Specific rules are contained in AR 27-10, Chapter 14. Consult with TDS counsel or a civilian counsel experienced in military matters immediately if you discover new evidence or learn of a fraud committed at your court-martial.

10. What are the Consequences if I Waive My Rights to Appellate Review? Your defense counsel must explain to you the consequences of waiver of appellate review. You may waive or withdraw review by the appellate courts at any time before completion of review. If you do so you must understand that:

a. Your decision is final and you cannot change your mind.

b. If you waive or withdraw your appellate rights, your case will be reviewed by a military lawyer for legal error. It will also be sent to the general court-martial convening authority for final action.

c. Within two (2) years after the sentence is approved, you may request The Judge Advocate General (TJAG) to take corrective action on the basis of newly discovered evidence, fraud on the court-martial, lack of jurisdiction over you or the offense, error prejudicial to your substantial rights, or the appropriateness of the sentence. You may submit any appropriate matters for consideration by the military lawyer conducting the legal review.

If you elect to waive appellate review, defense counsel will assist in preparing the waiver. Waiver of appellate review is rarely appropriate.

10. What if I have Questions About my Post-Trial and Appellate Rights? Ask your defense counsel or feel free to contact Mr. Coombs at (401) 744-3007.

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