Does anyone know anything about the Military Appellate System and what the percentages are of convictions being over turned? My son entered into a plea agreement and was given a 40 year sentence with the ability for parole and a chance to appeal. The judge was quite suprised that the prosecution allowed this agreement. He was convicted on a Felony charge, even tho he didn't commit the act that caused the death, he did participate in other acts that rendered him guilty under the Felony Murder Law. He was however denied counsel when he was arrested, and the CID that interrogated him lied in the article 32 hearing. We have his record of trial and it is all black and white. However, when he went for his plea agreement, the judge hearing the case refused to rule on these facts and went forth with the sentence. Right now, we have enlisted the help of a civilian attorney as he has been assigned 3 Military attorney's since April of 2004. The civilian will not do anything with the Brief until the Military attorney meets with him and with our son to discuss the position they will take at the Appeal. The military attorney has 50 cases that predlude our son's case. Soooooooo we wait. One thing I have learned with the military is to keep on the case. If you quit, they will quit. I emailed the appellate office every day for two weeks until they finally put his case in front of an attorney. Any one out there that can shed some lite on this would be greatly appreciated.

The military appeals system is very, very slow. Expect that it will take several years. I was convicted in November 1999, released from the DB in May 2001, and my case is still in appeals. It looks like there should be a final disposition within the next few months, but I have been expecting that for two years now. If your son was convicted in April 2004, he is very early in the process indeed. After a case is signed off on by the Convening Authority, the case will be reviewed by the court of appeals for his military service. It is my understanding that cases are usually upheld at the service level. I was told my my appellate lawyer not to expect any positive results from my appeal at the Army level. He was right. The next appellate level is the Court of Appeals for the Armed Forces (CAAF). CAAF does not have to hear all appeals, so the first step in appealing to CAAF is to petition to be heard. The appellate lawyer should be well versed in all this. I hate to be the bearer of bad news, but the fact that your son pled guilty will most likely have a negative impact on his chances of getting anything on appeal. This is one of those nasty little facts that is usually not explained up front. From what you say, however, he may still have some juicy issues to present on appeal. From what my lawyer friends tell me, things like denial of counsel are biggies. Your lawyer should be able to better explain that.
Having several military attorneys during the course of an appeal is the norm. Just like any other military assignment, they rotate in and out of the appellate division. I was lucky and have had a couple of good ones. Having a civilian attorney is probably smart in that it at least insures some form of continuity over the course of the appeal.
Don't lose heart. Do stay on top of the attorneys. The wheels turn slowly, but they do turn. It's good that your son has someone on the outside (you) who can look after his interests. Believe me, that is a VERY big deal.

My case started in 1996 ... when I was released in 2001, it was still in the appeals process. My case had some really great issues ... good enough that a civilian attorney was willing to take it on Pro Bono (for free) so I didn't have to pay for the civilian lawyer.

They put up a great case ... got a split decision at the AF Court ... with one Judge ruling to over turn ... one judge ruling to uphold ... and the third judge refusing to issue an opinion. This third judge was lambasted by both the other two because they both felt (and I agree) that he didn't do his job ... which is to issue a decision. His lack of issuing a decision resulted in my case being upheld.

So off we went to the Armed Forces Court ... pulled another split decision there ... but I got nothing in return. Petetioned the U.S. Supreme Court ... they refused to hear the case without Comment.

So finally, after almost 5 years I was finished with the appeals ... and had nothing to show but a big stack of paper.

Generally, it is rare for a case to get overturned ... probably about 1 or 2 in a hundred. It is more common to see minor modifications or sentence reductions ... sometimes partial victories, but rarely is there a complete reversal.

Pleading guilty is a HUGE issue in appeals ... it doesn't stop you from appealing your case, but it makes the appeals process even more of an uphill climb.

Sorry I don't have more positive comments ... but I wish you the best of luck!

James

I guess it is not exactly what I wanted to hear, but I needed some down to earth answers. First, thank you for replying so quickly. The issues of his case make things so difficult to swallow. His CA made a statement to the press that both of the soldiers involved were guilty and would be prosecuted to the fullest extent. That was a week after they were arrested, before any investigation was completed. The attorney we hired is an ex-military attorney, who used to be a prosecutorfor the Marines. He says he has never lost an oral argument. Is it true tho that it is unusual to have the ability to appeal when you have entered into a plea agreement. Also, in the plea agreement, my son pleaded guilty to certain offenses, but not to the murder. I don't know if that makes any difference either. He was actually convicted in July of 2003, and he is just getting assigned an attorney in April. How is it that you are out of prison and still filing an appeal? Does that mean that you completed your time and still filed for an appeal. I guess if we can get a reduced sentence out of this that would be good too. 40 years is a long time to wait. I am > 50, and doubt I would live to see my son out, if he had to serve the whole sentence. I am left with such a roller coaster of emotion. I am sad for the family that lost a son, but also sad for the lives of the other two boys who lost their lives too. Alcohol played such a huge role in the decisions they made. I make no excuses, but some times there are reasons.
Thanks so much for your reply. Even tho it was hard to hear, I needed to hear it. I will continue to pray for a positive outcome and thanks for all the support.

Without knowing the full details of the plea, and just what issues were waived in the negotiation, it is more than difficult to say how an appellate court would rule. Denial of counsel is a constitutional issue (6th Amendment), but the government usually has ways of getting around that. If part of the plea was agreement to waive this issue, it won't be heard on appeal. Denial of counsel is not as "big" as ineffective assistance of counsel which can be brought on appeal even if it is not raised at the trial court level. As to the purported CID false testimony at the Art. 32, that seems to be a common thread here. Our record of trial sets it out fairly well, too. Perhaps the reason the military judge did not rule on these issues is that it was part of the plea? (Just for the record, Gram3's son and my son were co-defendants but were tried separately) We weren't there for Gram's son's plea but my son had to plead to all charges. We did not have a civilian attorney but were satisfied with his appointed TDC. Both of them were very professional and very thorough advocates. I haven't contacted the assigned appellate attorney, yet. I'm sure the trial attorney warned him that I'm very involved and he (or she) is avoiding me at all costs. :-) Maybe I'll represent him myself!!

FYI - being released and yet still being in the appeals process is not uncommon on shorter sentences ... I had a 7 year maximum ... relatively short sentence ... I spent 7 Months in pre-trail ... by the time I got to the USDB I only had 3.5 years to do to MDR (do all my time) with my credit for 'good time' ... since my case was complex ... and I had fought all issues and charges at trial, I had plenty to bring up on appeals. Soooo ... by the time I had finished my sentence, my appeals had not finished. So I was released ... still on active duty ... until my appeals finished ... then I ws FINALLY set free from my Military commitment.

James

This at least gives us some hope. I am taking it, that your appeal went thru. There are major issues in his case that should have been ruled on at trial, but the Judge refused to do so. But with the plea agreement in place is may hinder the appeal. At any rate, we can hope for a reduced sentence.