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The Courts of Criminal Appeals Process

 In ARTICLE 120, Blog

What Happens After a Conviction?

This article explains the Courts of Criminal Appeals Process. The sentence a service member receives determines whether a criminal case goes to the courts of criminal appeals for the defendant’s service or is returned to the Judge Advocate office for the defendant’s command. Each service has their own court of criminal appeals or CCA, but the Court-Martial appeals process is generally the same for each. As an example, if a Navy Sailor receives a punitive discharge, then their case will automatically be sent to the Navy-Marine Corps Court of Criminal Appeals or NMCCCA. The military requires a verbatim transcript for those cases resulting in a punitive discharge and those cases qualify for an automatic appeal to the service court of criminal appeals. An experienced appeals lawyers can provide guidance on these matters when reviewing your case.

Qualifying Cases for the Service Court of Criminal Appeals

Once a court martial or a special court martial case is complete, if the defendant received a punitive discharge qu them for an appeal, a court reporter creates a verbatim transcript as part of the Record of Trial. What follows is the Courts of Criminal Appeals Process. The case is then assigned to a military attorney who will represent the defendant at the service-level Court of Criminal Appeals. After receiving the electronic Record of Trial, the appellate lawyer will look at the charges and the findings to see what happened at the trial. The appeals attorney will also look at the clemency request to see if the trial attorneys raised any errors that may need to be raised on appeal. An experienced court-martial appellate lawyer can explain the Court-Martial appeals process.

An Experienced Appeals Lawyer Finds Errors in a Record of Trial

The appellate attorney will look in the record of trial for any errors in the court martial that can be raised in the defendant’s case during the appeals process. There may be several issues or errors, but it’s not the number of issues that make a case stronger. It’s the strength of a particular issue that makes a strong case for appeal. An experienced appeals lawyer will look at the entire case from start to finish to determine what kind of relief, if any, they can get for a client.

The client, if they have been convicted at a court martial, may want the whole thing overturned. However, every case is different. For example, if a Soldier is petitioning the Army Court of Criminal Appeals, their attorney may only find an issue on sentencing. It’s then possible that the defendant may get a new sentence. In this case a Soldier could end up with a better sentence or a less severe sentence, but the convictions could still stand. Or, as another example, if a Coast Guardsman is convicted of four specifications at trial, the appellate attorney can petition the Coast Guard Court of Criminal Appeals, or CGCCA, and may get two of the specifications thrown out. If warranted, a defendant’s experienced appeals lawyer may be able to convince the court that new sentencing hearings are required.

Individual, Holistic Approach for the Court-Martial Appeals Process

A defendant’s appellate lawyer must look to get relief for the client by looking at the whole case. The appeals attorney will carefully review the results of the trial and the clemency request and speak to the client. An experienced appeals lawyer may even speak with the original trial attorneys to better understand the case. A defendant’s attorney must read the case from cover to cover and identify known issues or discover issues revealed in the Record of Trial. Some issues are often discovered after a court martial, because much of the time, in the heat of battle, nobody notices these errors. An appellate attorney reviews what objections were raised at trial because, unfortunately, if an issue was not raised by the defendant’s attorney at trial, sometimes the defendant can lose the ability to raise that issue during the appeals process. Once the appellate attorney identifies any issues, they will talk with the client again to let them know what the issues are. In fact, a good appellate attorney should be speaking to the client throughout the appeals process.

Writing and submitting the Appellate Brief

Once the appellate attorney identifies the strongest issues in a particular case, they write the appellate brief and submit the brief to the service criminal court of appeals. The government has their chance to reply so it’s going to be several months later before a defendant can expect the government’s response. In fact some appeals can take years. When the government responds, the defendant’s attorney has the opportunity to write a reply brief and decide whether or not an oral argument is appropriate. The appeal may or may not go to oral argument. Whether the appellate and the government representatives conduct oral argument doesn’t necessarily mean that it’s a good case or a bad case. You can get relief without asking for an award at the CCA.

When to Ask for Oral Argument

If an experienced appeals lawyer has a strong case, they may not want to ask for oral argument because they don’t want the defendant to have to wait longer to get the relief. However, they may ask for oral argument if there is something that’s factually complicated that is better to present in person. This often happens when it’s important to ensure that all three judges on the three-judge panel have a good understanding of the record of trial. On the Courts of Criminal Appeals there is only one reading judge. One judge will be the reading judge and the others can read the record of trial, but may not necessarily read the whole record for trial. Often there have been times where a judge assumes understanding, but oral arguments prove otherwise. A good appellate attorney will be able to make a recommendation on whether oral arguments are necessary.

Petition to the Court of Appeals for the Armed Forces, or CAAF

So once the service court of appeal petition process is complete, if the CCA fails to grant the relief or only grants partial relief, the defendant has the right to petition the Court of Appeals of the Armed Forces, or CAAF. This appeal is not automatic and defendants must exercise this right through petitioning CAAF through an appellate attorney. An appellate attorney can advise the defendant on whether they believe the CCA should have granted more relief than convicted service member has obtained at this part in the process. There are very strict deadlines associated with the petitioning CCAF and CAAF does not have to grant the petition. Out of the hundreds of cases that go to all the service courts in a year, CAAF only reviews 30 or 40 in a single year and in some years even fewer. If CAAF grants the petition, the appellate attorney will write a longer brief, further elaborating on the issues.

How Long Does the Court-Martial Appeals Process Take?

An appeal can take a year or several years. It takes the government sometimes up to six-months to complete a Record of Trial after a conviction. An appeals lawyer needs this Record of Trial to properly review a defendant’s case.  If there’s no punitive discharge, then an appeal can take less than a year and it goes to the office of the judge advocate and it doesn’t go to court. An attorney in the judge advocate office will read the record or a summarized record of trial. It can actually be harder to get relief from the judge advocate office, because with this type of appeal there is no verbatim transcript. In this situation, with only a summarized transcript, it is more difficult to discover errors that might be evident in a verbatim transcript. A defendant in consultation with an experienced appellate attorney can decide whether or not to go forward. It can be done, but it’s more challenging from a lawyer’s perspective because there is not a comprehensive record to bite into.

Why a Service Member, or Their Family, Should Consult an Experienced Appellate Attorney

If it’s your freedom, your hard earned benefits, or your loved one’s freedom, you want to know that you’ve been thorough and done everything that you could; you want to be confident that you haven’t missed anything. There are some good appointed attorneys at the defense appellate division, but they are only there for a couple of years so their experience may be limited. Additionally they are overworked and they are only going to take the case with the most obvious issues or errors all the way through to CAAF. Defendants seeking relief after a conviction need an experienced appellate attorney who understands the Court-Martial appeals process and the ebb and flow of a law over years, as opposed to a short two-year stint with the CCA. Defendants should talk to an experienced appellate attorney and get a copy of the Record of Trial as soon as possible. Service members and their loved ones need to exercise patience because it takes the government a while to prepare the work.

Service Courts of Criminal Appeals: The Army Court of Criminal Appeal, or ACCA,  Navy-Marine Corps Court of Criminal Appeals, or NMCCCA, Air Force Court of Criminal Appeal, or AFCCA, and the Coast Guard Court of Criminal Appeals, or CGCCA

The services Courts of Military Review were renamed Criminal Courts of Appeals in 1968. Article 66, the Uniform Code of Military Justice, establishes the service courts of criminal appeals. The Army Court of Criminal Appeals, or ACCA, is on Fort Belvoir in Fairfax, Virginia. The Navy-Marine Corps Court of Criminal Appeals, or NMCCCA, is at the Navy Yard in Washington, D.C. The Air Force Court of Criminal Appeals, or AFCCA, is located at Joint Base Andrews, in Maryland. The Coast Guard Court of Criminal Appeals, or CGCCA, is located near the U.S. Coast Guard Headquarters in Washington, D.C


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