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Courts-Martial Appeals

Courts-Martial Appeals1

Convictions by a special or general court-martial are subject to an automatic2 appeal to a service Court of Criminal Appeals if the sentence includes confinement for one year or more, a bad-conduct or dishonorable discharge, death, or a dismissal in the case of a commissioned officer, cadet or midshipman.3 Appeal is mandatory when the sentence includes death. An accused who waives his appellate rights will still have his case reviewed pursuant to Article 69 of the Uniform Code of Military Justice by the service Judge Advocate General for legal errors and possible referral to the appellate courts.

Each military service has established a Court of Criminal Appeals which is composed of one or more panels, and each panel has not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole. The court, sitting as a whole, may reconsider any decision of a panel. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a licensed attorney. The Judge Advocate General of each Service designates one of the appellate military judges of that Service's Court of Criminal Appeals as chief judge. The chief judge assigns the appellate judges to the various court panels and determines which military judge will serve as the senior judge on each panel.

The Court of Criminal Appeals can correct any legal error it finds, and it can reduce what it considers to be an excessive sentence. Under Article 66(c), UCMJ, the Court may only affirm findings of guilty and the sentence or such parts of the sentence that it finds correct in law and fact. In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine disputed questions of fact, recognizing that the trial court saw and heard the witnesses. Most civilian appellate courts 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 Court of Criminal Appeals to also consider questions of fact is a unique and important right afforded an accused under the UCMJ. Of course, similar to civilian appellate courts, the Court of Criminal Appeals cannot change a finding of “not guilty” to a finding of “guilty,” nor can it increase the severity of the sentence approved by the court-martial convening authority.

Each Court of Criminal Appeals has jurisdiction to review courts-martial in which the sentence, as approved: extends to death; dismissal of a commissioned officer, cadet, or midshipman; dishonorable or bad-conduct discharge of enlisted personnel; or confinement for one year or more. These courts may also review cases referred to the Court by the Service's Judge Advocate General. In addition, the Courts may, in their discretion, entertain petitions for extraordinary relief including, but not limited to, writs of habeas corpus, mandamus, and prohibition. Except in a death penalty case, the right to appellate review may be waived by the accused.

If the conviction is affirmed by the service court, the appellant may request review by the Court of Appeals for the Armed Forces4 and ultimately the U.S. Supreme Court.5 Review by these courts is discretionary.

The Court of Appeals for the Armed Forces (CAAF) is comprised of five civilian judges, appointed by the President and confirmed by Congress. These judges serve for a term of 15 years. CAAF is responsible for overseeing the military justice system. In all but death penalty cases, which it reviews automatically, and cases certified by the Judge Advocate General, CAAF chooses its cases upon petitions for review.

Finally, military service members convicted of crimes may petition the U.S. Supreme Court for a review of their case. Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari. However, the Supreme Court may not review a decision by the Court of Appeals for the Armed Forces which had refused to grant a petition for review. The military accused has a right, without cost, to the services of a military appellate defense counsel at all appellate review levels, including review by the Supreme Court. The military accused may petition the U.S. Supreme Court for a writ of certiorari without prepayment of fees and costs.

[1] Estela I Velez Pollack, Military Courts-Martial: An Overview, CRS Report for Congress (2004); Information also derived in part from Military Justice Fact Sheets, Military Law Branch, Headquarters, U.S. Marine Corps

[2] Military appellate courts are required to review cases over which they have jurisdiction unless the appellant waives his or her right to appeal. An appellant may not waive his right to appeal when the sentence includes death. RCM 1110.

[3] Art. 66, UCMJ; 10 U.S.C. § 866.

[4] See Art. 67, UCMJ; 10 U.S.C. § 867. The Court of Appeals for the Armed Forces (CAAF) is a civilian court composed of five civilian judges appointed by the President.

[5] Congress did not grant the U.S. Supreme Court jurisdiction over decisions of the CAAF until 1984. Military Justice Act of 1983, P.L. 98-209, 97 Stat. 1393, 28 U.S.C. § 1259.

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