Can you appeal a military sex assault conviction?
Service members can appeal their military sex assault convictions depending on the type of court martial. There are three types of courts-martial: summary, special, or general. If you were convicted at summary court martial, you have five days from the day you were sentenced to appeal to the next higher command. The next higher command has three options: keep the punishment, reduce it, or eliminate it altogether. Service members do not have a right to appeal to the military appeals courts. However, there is an option to appeal to the service Judge Advocate General and potentially the Board of Correction of Military Records. Special or general courts-martial appeals are heard at the military service courts of appeals. Service members have access to a free military defense attorney throughout the appeals process. They can also hire a civilian defense attorney at their own cost. All special and general court martial findings are automatically reviewed by the convening authority prior to going through the military court of appeals process. The convening authority is the person who initially referred the case to a court-martial. Once the findings and the record of trial make it to the service defense appellate division, service-level JAG officers look for errors in the court martial proceedings. These errors can be used to appeal the findings in an appeal for a military sex assault conviction. Soldiers should understand how to overturn a military conviction, how long a court martial appeal takes, and how to choose the best sex assault appeal lawyer.
How do you overturn a military conviction?
JAG lawyers at the service defense appellate divisions review the records of trial of convicted service members. They are looking for errors in the proceedings that they can argue. They will craft a case that the court martial findings were flawed and should be reconsidered. The experience and the bandwidth of the defense attorney reviewing the record of trial can sometimes result in the number or type of errors found. Often the service-level defense appellate attorneys have limited experience and hundreds of cases to get through. Experienced private criminal defense attorneys can make the difference in finding errors in court martial proceedings and crafting an effective argument to the service courts of appeal. These attorneys often have years of military defense appellate experience and the time to be thorough with a case. So when someone asks, how do you overturn a military conviction, an experienced defense appellate attorney can walk you through the process.
How long does a military appeal take?
An appeal can take two to four years from review to service-level appeal, through to the Court of the Armed Forces. It takes about six-months for the convening authority to produce the record of trial after a court martial. These records of trial could be hundreds or thousands of pages and a careful review from an experienced appellate lawyer could take weeks. After review of the record of trial, possible interviews of trial participants, and the crafting of an appeal packet, the services defense appellate divisions and the service courts of appeal have to consider these appeals amongst thousands of other appeals in the pipeline. And if the appeal moves to the Court of Appeal for the Armed Forces, then that adds more time to the process and increases how long a military appeal takes.
What kind of results can you expect from a military appeal?
The court martial errors found and effectively argued in a military court martial appeal could vary in their degree of effect on the findings. These mistakes could be argued responsible for a wrongful conviction in its entirety; that only select charges should be thrown out; or that just the punishment is not appropriate. Service members could receive limited clemency, otherwise known as a reduction in jail time. It’s also possible only certain charges could be overturned or the entire felony conviction thrown out. The outcome varies in what kinds of results you can expect from a military appeal when attempting to appeal a military sex assault conviction.
What UCMJ charges go to court martial most often?
The military has a robust separation process. This process doesn’t require court martial to rid the service of those allegedly committing the UCMJ’s less egregious offenses. The military mostly turns to courts martial to try service members accused of sexual assault, or violations of Article 120. Convictions resulting from this process make up the majority of court martial appeals.
How do you choose the best sex assault defense lawyer?
A service member facing courts martial or already convicted of Article 120 offences at court martial needs a sex assault defense lawyer experienced in Article 120 defense cases. Active duty JAG attorneys in general have limited criminal defense experience because the JAG career path encourages generalists instead of specialists. Service members should look at the case results and the lawyer’s years of experience. Service members looking to choose the best sex assault defense lawyer should look for experience in both sex assault cases and a record of successful appeals. An experienced sex assault defense lawyer will be able to better navigate the difficulty of these cases and know how to take advantage of the often lesser-experienced military prosecutors.
CONTACT THE LAW OFFICE OF PETER KAGELEIRY, JR. ∙ FREE CONSULTATION
Have you or a loved one facing charges of military sex assault or been convicted of Article 120? No matter where you are stationed in the world, contact my office at +(757) 504-2815 or through our convenient online form to schedule a free consultation.
Attorney Peter Kageleiry, Jr., focuses his legal practice exclusively on military courts-martial law and related adverse administrative actions.