In this blog series, I have discussed how servicemembers are protected by the two-tiered appellate system in the military (Part I). I also explained that there are a few unique appellate issues that may be argued by military appellants. In Part II of this series, I discussed the issue of ineffective assistance of counsel in detail. In this part, I will discuss the unique concept of Grostefon issues in military appellate law.
In military appellate law, an appellant may supplement his attorney’s appeal issues with issues not raised by his attorney. In other words, an appellant may decide that he is not completely satisfied with the issues raised by his attorney on appeal and may raise independent issues to the appellate courts. 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) reviewed three different issues personally raised by appellants in three Army cases. The first of these cases was 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). Second, in United States v. Nieto, CAAF reviewed the Grostefon issue of whether or not the military judge erred in denying appellant’s motion to suppress evidence seized from his laptop computer. Finally, in United States v. Sewell, CAAF reviewed a third Grostefon issue of whether the trial counsel committed prosecutorial misconduct by making improper argument during the findings phase of the court-martial.
These recent grants demonstrate that this unique aspect of military appellate law works. These courts will listen to valid appellate issues even if raised solely as Grostefon issues. This provides protections for appealing servicemembers because they have a unique opportunity to be heard by the appellate courts. I pride myself on raising all appellate issues that have merit and fighting to make sure they are heard by the courts.
I have a lot of experience with court-martials and court-martial appeals. Call me and we will talk about your case together. After reading your record of trial, I will know which issues should be raised on appeal. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.