Failing to object or make defense motions at the right times during your court-martial could cost you your chance at a valid appeal.
Having an experienced attorney by your side at your court-martial is extremely important. Don’t wait until your appeal to make sure the right person is defending you, because the attorney representing you at your court-martial could make mistakes that could cost you your chance at a valid appeal. What I am talking about is “waiver” and “forfeiture.” Without you even being aware, your defense counsel at your court-martial could waive (give up) your right to raise a valid issue on appeal by not raising it in a timely manner at your court-martial. Rules for Courts-Martial (R.C.M.) 905(b) and (e) state that there are many motions and objections that must be raised prior to entering a plea or they will be considered waived. These include motions to suppress evidence, motions regarding discovery and the production of witnesses, some motions regarding the form of the charges, and motions regarding defects in the preferral or referral process. Entering a plea is one of the first things that occurs during your court-martial, so you need your defense counsel to be experienced enough to know that if he or she fails to raise any of those issues right away, the chance to do that may not come again. Other motions, defenses, requests and objections, besides lack of jurisdiction and failure of a charge to allege an offense typically must be raised prior to the end of the court-martial or they too will be waived. R.C.M. 905(e). In some instances with certain issues, the appellate courts will determine that a defense counsel did not affirmatively waive an issue, but instead just failed to mention it at all by mistake. In this case, an appellate court may find that you only “forfeited” your right to raise it at the court-martial. However, even if this is the case arguing a forfeited issue on appeal is very difficult because you must show plain error and specific prejudice. The bottom line is, if you do not have an experienced advocate by your side at your court-martial, you may be losing your chance to raise certain valid motions, objections, defenses and appeals. Don’t put your court-martial, one of the biggest events of your life, into the hands of an inexperienced attorney. You need someone who knows when to object, when to make motions and how to preserve your case for appeal. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.