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Appellant challenges military judge instruction to panel that they “must convict” him.

On 2 November 2016, the Court of Appeals for the Armed Forces (CAAF) heard oral arguments in an Air Force case called United States v. McClour.  In this case, the appellant has appealed to CAAF claiming error in the military judge’s instruction regarding proof beyond a reasonable doubt.  In McClour, the military judge instructed the court-martial panel “if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty.”  Military judges typically read their instructions from a manual called the Military Judge’s Benchbook.  The benchbook instructions direct military judges to instruct court-martial panels that if they find they “are satisfied beyond a reasonable doubt of the truth of each and every element, then [they] should find the accused guilty.  Obviously, “should” is different than “must.”  However, the Air Force and sometimes the other services use the word “must” in this instruction instead of “should.”  Stating that the court-martial panel “must” find an accused guilty if they believe the prosecution has met their burden of proof is actually not an accurate statement.  A court-martial panel can acquit an accused even if they find that the burden of proof has been met.  This is sometimes referred to as “jury nullification.”  The appellant challenged the military judge’s instruction in McClour arguing that it was improper because the military judge essentially directed the court-martial panel to find him guilty if the proof was there.  We will see if appellant’s argument has any success at CAAF.  This case shows that if you were tried and convicted at a court-martial, you may have a valid appeal that had nothing to do with the evidence presented in your case.  An appeal can simply be based on a military judge’s erred instruction to your court-martial panel.  If you want to appeal your court-martial result, you need someone with experience who can spot the valid issues.  I have a huge amount of experience litigating at the court-martial and appellate level.  This is one of the biggest decisions in your life, call now, don’t wait.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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