Is it a violation of the Constitution to have military appellate judges simultaneously serving on the United States Court of Military Commission Review?

Recently, there has been a string of military appellate cases across the services where the appeals have been based on whether some of the appellate judges have been improperly serving on two different courts.  Appellants have argued that it is a violation of the Appointments Clause in the Constitution to have a judge appointed to serve on the United States Court of Military Commission Review (USCMCR) at the same time that they are rendering decisions as judges on the service appellate courts.  Recently, the Court of Appeals for the Armed Forces (CAAF) reviewed one of the first cases in this line of cases, United States v. Dalmazzi.  This Air Force case, involved a female lieutenant who pled guilty to using ecstasy at her court-martial.  She was sentenced to a dismissal and one month confinement.  Then, at the appellate level, the Air Force Court of Criminal Appeals (AFCCA) affirmed the findings and the sentence.  Appellant later learned that one of the judges serving on the AFCCA panel that affirmed her case was also a USCMCR judge.  She therefore appealed arguing that there was a constitutional violation.  The CAAF reviewed the Dalmazzi case and held that the argument was moot because the appellate judge participating on both courts had not been formally appointed as a judge on the USCMCR by the President.  If the judge had been formally appointed by the President, then appellant’s argument might have been successful.  I have made this argument on behalf of my clients with regard to different appellate judges because I keep myself apprised of all the newest appellate arguments.  Sometimes appeals are not based on the facts of the case.  Sometimes they are based on the judges themselves like in this string of cases.  While the appeal was not successful in Dalmazzi, it is important that you have an advocate by your side at the appellate level who makes all valid appeals for you.  If your attorney is not apprised of the newest issues and is not digging deep into your court-martial record of trial in search of appealable issues, then you are not getting your money’s worth.  If you or your loved one is facing a court-martial or is looking to appeal one, you need someone with experience who is going to really search for valid appeals.  I have the experience you need.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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