I have been convicted at a court-martial…what next? Is there any post conviction relief available?
There are many avenues a servicemember can take after receiving a court-martial conviction. While being convicted at a court-martial can feel like the end of the road, it may not be. There are many different avenues one can take to try to get relief following a court-martial conviction. The avenues include requests for clemency, court appeals, Article 69 reviews, and requests for a new trial.
Clemency is a convicted servicemember’s first opportunity to get relief. Prior to the convening authority taking final action on a court-martial, a convicted servicemember may request clemency from the convening authority. A convening authority (typically a General officer) has a lot of ways in which he or she can grant relief. The convening authority may alter the findings of guilt. The convening authority can dismiss charges altogether, lessen them to lesser-included offenses, or grant a rehearing. The convening authority may also provide relief with regards to the sentence. The convening authority may lessen, suspend, defer or even disapprove a sentence. For example, if one is sentenced to 3 years confinement, a convening authority may change this sentence to be 1 year or even no confinement at all. Requesting clemency cannot negatively impact a convicted servicemember because the convening authority cannot make the findings or sentence more severe, he or she can only alter things in favor of the convicted servicemember. If no relief is granted through the clemency process, there are other avenues listed below that a convicted servicemember may take to get post conviction relief.
If a convicted servicemember’s sentence includes a dishonorable discharge, bad conduct discharge, dismissal (officer), confinement for at least one year, or death, the case will be automatically reviewed by the appropriate service court of appeal. There is a military court of criminal appeals dedicated to all of the services. There is an Army Court of Criminal Appeals, a Navy-Marine Court of Criminal Appeals, an Air Force Court of Criminal Appeals, and a Coast Guard Court of Criminal Appeals. If the sentence does not require an automatic court review, a convicted servicemember may petition the appropriate court to review the case. The court has the discretion to review those cases unless the Judge Advocate General has ordered review. The service Courts of Criminal Appeals will only affirm findings that are correct in law and fact, therefore, these courts can set aside findings. Also, these courts have the same power as the convening authority with regard to the sentence, except that these courts may not defer a sentence. If a convicted servicemember is dissatisfied with the service appellate court review, he or she may petition the Court of Appeals for the Armed Forces (CAAF) to review the case for “good cause.” This Court has discretion to review the service appellate court’s decision. However, if the sentence involves death or if the Judge Advocate General has ordered review by CAAF, this court must review the case. The service Courts of Criminal Appeals and CAAF may also review a case in response to a “writ of habeas corpus,” however these are rare and are filed in unique circumstances. Finally, a convicted servicemember may petition the U.S. Supreme Court for review.
c. Article 69 Review
Under UCMJ, Article 69 any general court-martial that is not otherwise reviewed by a court will be reviewed by the Judge Advocate General. The Judge Advocate General may modify or set aside the findings or sentence or both if appropriate.
d. Request for a new trial
At any time within 2 years after the convening authority has approved the findings and sentence of a court-martial, a convicted servicemember may petition the Judge Advocate General for a new trial on the grounds that there is newly discovered evidence or that there was fraud on the court-martial. However, if the convicted servicemember pled guilty at his court-martial, he cannot petition for a new trial on the basis of newly discovered evidence.
A court-martial is only final when the appropriate reviews have taken place or all petitions for review have been denied. It is important to know that while a court-martial conviction is daunting, it is not the end of the road. There are many avenues available to seek post conviction relief. You should have an advocate by your side with experience as you seek this relief. I have this experience. The call is free. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.