Post Trial & Appellate Review
Post Trial Review
The process starts with a review of the trial record by the staff judge advocate. R.C.M. 1104. The accused is then given an opportunity to present matters to the convening authority. R.C.M. 1105. The accused may submit anything that he or she feels might influence the convening authority’s decision. Id. Before the convening authority takes “action” under R.C.M. 1107, the staff judge advocate for the convening authority provides a recommendation to the convening authority as to what action to take. R.C.M. 1107.
After considering the matters submitted by the accused and the staff judge advocate’s advice, the convening authority takes action on the case. The convening authority has broad powers in taking action. It has frequently been stated that the accused’s best hope for relief is based upon the convening authority’s review.
The convening authority may, among other remedies, suspend all or part of the sentence, disapprove a finding or conviction, or lower the sentence. R.C.M. 1107. The one limitation on the convening authority’s power is that he or she may not increase the sentence.
Once the convening authority takes action, the case is ripe for appellate review. Convictions by special or general court-martial are subject to an automatic appellate review by 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. R.C.M. 1203.
Military appellate courts are required to review cases over which they have jurisdiction unless the appellant waives his or her right to an appeal. An appellant may not waive his or her right to an appeal when the sentence includes death. R.C.M. 1110.
All court-martial convictions not reviewable by the service courts are reviewed by a judge advocate to determine if the findings and sentence, as approved by the convening authority, are correct in law and fact. Article 64, UCMJ, 10 U.S.C. § 864, R.C.M. 1111, 1112, and 1306.
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If the conviction is affirmed by the service court, the appellant may request review by the Court of Appeals for the Armed Forces (CAAF). R.C.M. 1204. The CAAF is a court composed of five civilian judges appointed by the President. Article 67 UCMJ; 10 U.S.C. § 867. With the exception of a case where the sentence is death, the review by the CAAF is discretionary. The appellant may also seek review by the U.S. Supreme Court. R.C.M. 1205. As with the review by CAAF, the review by the Supreme Court is discretionary.
However, the Supreme Court review by writ of certiorari is limited to those cases where CAAF has conducted a review, whether mandatory or discretionary, or has granted a petition for extraordinary relief. The Court does not have jurisdiction to consider denials of petitions for extraordinary relief. R.C.M. 1205(a)(4). Service- members whose petitions for review or for extraordinary relief are denied by CAAF may seek additional review only through collateral means, for example, petitioning for habeas corpus to an Article III court, which could provide an alternate avenue for Supreme Court.