What happens after the court-martial is over?
At the conclusion of the court-martial, the government is responsible for compiling a verbatim transcript (in most cases) of the testimony of the court-martial, and all of the “allied papers” which includes the police reports, Article 32 report, motions filed at trial, etc. This is called the Record of Trial (ROT.)
Once the record of the trial, or transcript, is completed, it is “served” on the defense counsel and the accused. The accused then has ten days to ask the convening authority for clemency. This ten day period can be extended for twenty additional days. The submission to the convening authority is an important step in the court-martial process. Great care should be taken in the preparation of the clemency petition. An attorney with experience in courts-martial and courts-martial appeals can assist in the preparation of the clemency petition. Unfortunately, due to recent action by Congress, the power of the convening authority to provide meaningful relief at clemency has been greatly curtailed. Even though the convening authority has not taken final action on the sentence, any sentence of confinement begins immediately after the trial is over, unless deferred by the convening authority.
Once the convening authority takes final action, if the approved sentence includes confinement for more than one year, a punitive discharge or death, the case is automatically referred to the Court of Criminal Appeals of that particular service. This may be the Army, Navy-Marine Corps, Air Force or Coast Guard Court of Criminal Appeals. This court consists of panels of three military appellate judges, whose sole job is to review courts-martial appeals from their service. At this stage, the service member is provided with a military attorney from the Defense Appellate Division of his or her service. In addition, the service member can retain a civilian attorney to represent him before the Court of Criminal Appeals.
This is the start of the appeals process, and is the most important step in getting relief on appeal. Your attorney will prepare an appellate brief for submission to the court, which will outline errors made at trial, and matters that your attorney believes may have lead to an unfair trial. This requires a thorough review of the ROT, research of applicable case law, and potentially interviews with witnesses. It requires close coordination between the attorney and the client.
After the brief is submitted to the Court of Criminal Appeals, the government’s lawyers will then file a response. Then, your attorney can either file a “reply brief” request “oral argument” or rest on the brief that was filed. These are all extremely important decisions, and require the services of an experienced court-martial appeals lawyer.
- Navy Court of Criminal Appeals
- Coast Guard Court of Criminal Appeals
- The Court of Appeals For the Armed Forces
If the sentence does not meet the above requirements, an appeal is then processed by the office of the Judge Advocate General for your service.
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Frequently asked questions and answers:
As discussed previously here, the 2023 National Defense Authorization Act opened up access to the appellate courts to every servicemember convicted at general or special courts-martial, no matter the sentence. If you are court-martialed and receive a sentence that includes a bad conduct discharge, dishonorable discharge, dismissal, or confinement for two years or more, your … Read more
At the conclusion of the court-martial, the convening authority (usually the base commander) has the authority to either approve or disapprove the conviction and the sentence, either in whole or in part. This is commonly referred to as the clemency process of “1105 submission.” This is due to the fact that the authority to ask … Read more
Your appellate lawyer, whether it be an active duty JAG or a civilian attorney, is responsible for preparing a “brief” or written pleading, to present to the Court of Criminal Appeals. This is done by carefully reading the record of trial, or transcript, and identifying legal issues that may result in relief for the client. … Read more
How long will it take to get my case heard? There is no clear answer to this. In some cases, it can take years before all of the appeals are over. What else might happen? In some cases, the court can order a “DuBay” hearing, in order to gather more facts about the issues raised … Read more
I recently posted how the Army Court of Criminal Appeals had reversed my client’s child sexual abuse conviction in U.S. v. Swift. In a rare move, the government appealed that decision to the Court of Appeals for the Armed Forces. Yesterday, the CAAF agreed with us, and denied the government’s appeal. This means my client … Read more
I recently represented an Air Force captain, who was convicted of sexually molesting his two step daughters. Unfortunately, this is a scenario all too often where allegations are brought against a service member in the midst of a divorce. My client has steadfastly maintained his innocence, and there was no physical evidence to link him … Read more
I previously reported on how I successfully had a client’s conviction for rape of a child thrown out on appeal by the Navy-Marine Corps Court of Criminal Appeals. As I reported in that post, my client still had several convictions on his record. Now, two more of those convictions have been overturned on appeal, this … Read more
Mr. Cassara recently represented a soldier who was convicted of two separate rapes and sentenced to seven years confinement and a dishonorable discharge. Mr. Cassara argued on appeal that the soldier had been denied a fair trial when the military judge ruled that the prior sexual activities of the two alleged victims were inadmissible at … Read more
Mr. Cassara recently succeeded in having a client’s sexual assault conviction overturned on appeal. SSG Daniel Gaskins was convicted at court-martial for sexual assault of a minor and sexual assault of a fellow service member. He has steadfastly maintained his innocence. He was originally sentenced to twelve years in prison. Mr. Cassara succeeded in having … Read more
Mr. Cassara represented a Navy E-6 at trial on a single charge of use of cocaine. After a hard fought case, the panel convicted the sailor and reduced him one grade. Mr. Cassara appealed that decision to the Office of the Judge Advocate General pursuant to Rule for Courts-Martial 69b. That office forwarded the case … Read more