This blog was written by Attorney Sean Marvin and can be contacted at: sean@seanmarvinlaw.com

 The Appeals Process

Each branch of the military has a criminal appeals court.  Those courts review court-martial cases where a Servicemember has been sentenced to any one of the following: Confinement for one year or more, a punitive discharge or dismissal, or death.

Too often, Servicemembers who are facing a court-martial mistakenly believe that things will get better for them once they appeal their case.  Yet, most Servicemembers don’t know much about the appeals process.  (This even includes many military defense lawyers given that most JAGs never work at the appellate courts and most who do only do so after working as a defense attorney.)

Yet, if you’re facing a court-martial, there are certain things that you should know now, before you even get to trial.

1. If you plead guilty at trial, you are unlikely to get relief from the appeals court.

A guilty plea in a military court is very different than a guilty plea in most other courts.  Military courts want to be sure that a service member who is pleading guilty to a crime actually committed the crime and has no legal defense.  Military courts also want to be sure that the service member is pleading guilty voluntarily, and not because he feels like he must do so.  (Your commander, the prosecutor, the judge, and your military lawyer may all outrank you but none of them can make you plead guilty.)

Generally, these protections are good aspects of the court-martial system.  However, they come with drawbacks that you should be aware of before you agree to plead guilty in a court-martial.

When you plead guilty at a court-martial, you will be required to waive your constitutional right to remain silent.  You will be placed under oath and the military judge will ask you all sorts of questions about the charges, why you are guilty of those charges, and whether you are pleading guilty voluntarily.   This process not only helps the judge make sure that you are in fact guilty and only pleading guilty because you want to do so—this process also helps the prosecution when it comes time for your appeal.

After your trial is over, the record of trial will be sent to the appeals court and a military appeals lawyer will contact you, unless you hire a civilian lawyer for the appeal.  The appeals court will read the transcript of your guilty plea, and see that you, in your own words, described the details of why you’re guilty and that it was your decision to plead guilty.  In that situation, your appeals lawyer isn’t normally going to be able to convince the appeals court that you didn’t mean what you said at trial.  Your appeals attorney will be left with far fewer arguments to get you relief.

2. Pleading not guilty but having your case decided by a judge instead of a military panel also limits your ability to get relief from the appeals court.

Courts believe that, because judges are lawyers, judges know the law.  When an appeals court reviews a record of a trial and, for example, sees that the prosecutor made arguments that were legally improper and that the defense attorney didn’t object, the appeals court will normally presume that, because judges know the law, your judge understood that the arguments were improper and ignored them.

On the other hand, when you have your case tried by a panel (the military version of a jury), the members of the panel aren’t normally lawyers.  Therefore, unlike with judges, appeals courts don’t assume that panel members know the law.  When an appeals court sees that a prosecutor was permitted to make an improper argument to a military panel, the appeals court can’t assume that the panel members knew that the argument was improper or that the panel members ignored the argument.  The appeals court is more likely to grant you relief.

And this difference is true for all sorts of legal error.  Having your case heard by a military panel puts more pressure on the prosecution and the judge to get things right.  When you go judge-alone, however, an appeals court will give your judge much more deference, and you will have less ability to successfully appeal.

None of this is to say that a service member should never plead guilty or go judge-alone.  Depending on the case, there can be good reasons to do so.  But, before you make those decisions, make sure you weigh any benefits of doing so against what you may be giving up should you need to appeal down the road.  The presumption of innocence until proven guilty and the ability to have your case decided by a panel of other service members are important rights, which you have fought for.  You should not waive those rights without a great deal of thought and legal guidance.