The Path to Appealing a Court-Martial – Part II
The Court of Criminal Appeals can correct any legal error it comes across; including the reduction of those court-martial sentences it considers to be excessive. Under Article 66 of the UCMJ, the Court may only uphold such parts of the court-martial findings and sentence that it finds correct in law and fact. In their consideration of the record, the judges may assess the evidence and credibility of witnesses, as well as determine disputed questions of fact, all the while recognizing the fact that the trial court heard and saw the witnesses. It is important to note, however, that generally speaking a court-martial appeal is limited to those issues raised at trial and you generally cannot present new evidence on appeal.
Most civilian appellate courts are limited insofar as they can only consider issues of law, not questions of fact – they are bound by the findings of fact made by the civilian trial court. The power of the Courts of Criminal Appeals to also consider questions of fact in a court-martial appeal is a unique and important right afforded an accused service member under the UCMJ. However, the Court of Criminal Appeals cannot increase the terms of the sentence approved by the court-martial convening authority or change a finding of “not guilty” to “guilty.”
Each Court of Criminal Appeals has jurisdiction to review courts-martial where the sentence, as approved, extends to death; dismissal (in the case of a commissioned officer, cadet, or midshipman;) dishonorable or bad-conduct discharge of enlisted personnel; or confinement for more than one year. These courts are also empowered to review court-martial cases referred to the Court by the Service’s JAG. Also, the Courts may, in their discretion, entertain petitions for extraordinary relief. Extraordinary relief may include, but is not limited to, writs of mandamus, writs of habeas corpus, and prohibition.
If you have been convicted at court martial and need a court martial attorney contact Mr. Cassara for a free consultation.