I want to raise an issue on appeal that my defense attorney is not raising…can I do that? Will the appellate court consider my issue?
You were present at your own court-martial and therefore you may want to raise an issue on appeal that is different from those being raised by your appellate defense counsel. You will have this right on appeal. These issues you raise independently may be considered by the appellate courts in addition to those issues raised by your defense counsel. These independent issues are often called “Grostefon issues.” This term originates from a 1982 Court of Military Appeals case called United States v. Grostefon. In this case, the court ruled that a detailed defense appellate counsel must inform the military appellate courts of any issues raised by an appellant, even if the defense counsel believes that the issues do not have merit. Recently, the Court of Appeals for the Armed Forces (CAAF) has decided to review three different issues personally raised by appellants in three Army cases. The first of these cases is United States v. Caldwell. In this case, the appellant personally asked the court to consider whether the military judge in the court-martial erred when he instructed the panel to use a negligence standard for an Article 93 violation (Maltreatment of a Subordinate). CAAF believes the issue may have merit and the defense counsel and government counsel will now file briefs regarding this topic. Second, in United States v. Nieto, CAAF determined that another Army appellant’s Grostefon issue should be reviewed. The issue under review in that case is whether or not the military judge erred in denying appellant’s motion to suppress evidence seized from his laptop computer. Finally, on 12 April 2016 in United States v. Sewell, CAAF granted review of a third Grostefon issue. The issue that will be reviewed in this case is whether the trial counsel committed prosecutorial misconduct by making improper argument during the findings phase of the court-martial. To see CAAF grant three recent Grostefon is unique and sends a message to court-martial appellant’s that the Court is ready to listen to valid appellate issues. The Court is ready to listen to issues raised by the appellant personally even if the lower courts do not see merit in the issues. If you or your loved one is looking to appeal a court-martial, this recent grant of reviews should encourage you. If you want to appeal a court-martial, you need someone with experience. In each of these three cases, there were valid appellate issues that neither the counsel defending the appellants nor the lower appellate courts found to have merit. I pride myself on raising all appellate issues that have merit and fighting to make sure they are heard by the courts. I can read through your court-martial transcript and tell you whether you have valid appellate issues. Any issues you want raised must be raised even if they are raised as a Grostefon issue. I have a lot of experience with court-martials and court-martial appeals. Call me and we will talk about the case together. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.