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How long does an appeal take?
A military appeal usually has two phases, the Court of Criminal Appeals and the Court of Appeals for the Armed Forces. The process can take 1 – 2 years because each side reads the record of trial, investigates, researches the law, drafts appellate briefs, presents an oral argument, and then awaits the Court’s decision. There is not set timeframe for how long a Court has to decide an appeal.
What is clemency before a Convening Authority?
Clemency is generally favorable action. The officer who referred your case to trial receives the result after trial and in many instances, to take favorable action, up to and including disapproving the findings and the sentence (except for cases involving sexual assault). This does not happen often, but it is an opportunity to seek favorable action based on errors at trial before the case goes to the appellate court.
What is the Army Court of Criminal Appeals?
This is the appeals court that reviews Army Courts-Martial from all over the world. Located on Fort Belvoir, Virginia, The Judge Advocate General of the Army, a three-star uniformed legal officer, appoints senior Judge Advocates to duty as appellate judges, who sit in panels of three to review the record of trial, consider briefs filed by the parties, host oral argument, and issue appellate decisions.
What is the US Court of Appeals for the Armed Forces?
This Court sites above the Courts of Criminal Appeals, like the Army Court of Criminal Appeals, and consists of 5 civilians appointed by the President and confirmed to 15-year terms. Located in Washington DC, the court has the discretion to hear an appeal and those it accepts must involve questions of law only, not of factual matters.
What is an appellate brief?
A legal argument where appellate counsel reviews the record of trial, identifies legal errors made during the investigation and trial, conducts legal research to apply the law to those errors, and argues to the appellate court that the client should receive favorable action.
Do I go before a jury?
No. Juries are for courts-martial or trials only. There are no juries authorized for an appeal.
Can the appeals court correct the mistakes of my trial?
Yes. The law authorizes the appellate courts to take any action necessary to ensure the findings and sentence are correct, up to an including setting aside convictions, reversing sentences, and restoring a servicemember to full status. This depends, however, on the facts and law involved in each case.
If the military appeals are not successful, can I try Federal habeas corpus in civilian court?
Yes. The US Constitution contains a right to Habeas Corpus and military members must first go through the direct appeal process (Court of Criminal Appeals and Court of Appeals for the Armed Forces) and before they can file a Federal civil lawsuit under the Habeas Corpus statute challenging the constitutionality of their trial, convictions, or sentence.
Can my case go to the US Supreme Court?
Possibly. If the Court of Appeals for the Armed Forces accepts your case, you have the right to take your case to the Supreme Court directly through a petition for certiorari. The US Supreme Court has discretion whether to accept your case. If the Court of Appeals for the Armed Forces does not accept your case, then, you can file Habeas Corpus in civilian court and appeal again to the US Supreme Court.
Do the appeals courts have to grant us oral arguments?
No. There is no right to oral argument. Courts grant oral argument when it their discretion, they believe it will be helpful to resolution of the legal arguments raised in the written legal briefs.
How is the appeal different from my trial?
There is no jury, no single judge, and no witnesses. Instead, each party files legal arguments called “briefs,” presents oral argument before a three-judge panel of appellate judges, then awaits the decision.
When is my court martial final?
Generally, when your case passes through the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and the US Supreme Court denies to review your case.