Military's Approach to Appellate Law, The

The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. (1) I. THE APPELLATE COMPONENT OF THE MILITARY JUSTICE SYSTEM Long gone are the days when "military justice" meant a rush to judgment with charges read after sunrise, a conviction by lunch, and a firing squad--blindfold optional--completing its work by sunset. (2) Today's military justice system, the Uniform Code of Military Justice, found in the Manual for Courts-Martial, (3) is replete with protections for servicemembers, not the least of which is a robust appellate system. (4) It is this final safeguard in the military's justice system that I will explore to give the reader an understanding of the military's approach to appellate law and how this portion of the legal structure guarantees that America's servicemembers are protected by the very laws they have volunteered to defend. The military has essentially a two-tiered appellate system. There are four service courts, the Army Court of Criminal Appeals, the Navy-Marine Court of Criminal Appeals, the Air Force Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals, each composed of military judges from the Judge Advocate General (JAG) Corps. From this level, cases are appealable to the Court of Appeals for the Armed Forces, a court composed of five civilians, appointed by the President, who serve fifteen-year terms. (5) As is typical of appellate courts generally, military appellate courts are limited by the records they receive on appeal, even in cases in which the appellate court believes the record to be inaccurate. (6) The appellate courts do have de novo review, allowing another reassessment of the findings, albeit limited to the facts in the record, with the ability to overturn the result of trial if the reviewing court deems appropriate. (7) The intermediate service courts automatically review any case where the sentence of the accused includes confinement for more than a year, a bad-conduct or dishonorable discharge, dismissal of an officer, or death. (8) In fiscal year 2009, the most recent year available for statistics from the Army's intermediate service court, there were 1069 courts-martial, and of those, 605 resulted in sentences serious enough that they mandated automatic review by the service court. (9) During that same time period, CAAF issued forty-six opinions in cases arising from the various intermediate courts after reviewing petitions in approximately 950 cases. (10) Like CAAF, each service court operates under its own set of rules. (11) Counsel appearing before these courts must remember that their procedural rules are typically enforced much more closely than are the procedural rules at trial level. (12) II. DUTIES OF MILITARY APPELLATE LAWYERS A. Competence Each service also has its own appellate personnel consisting of both government and defense appellate divisions. (13) The attorneys that staff these departments are all licensed practitioners, required to follow the ethical rules of the jurisdictions in which they are admitted to practice as well as the military rules of professional responsibility for their particular service, not least of which is the requirement of competence. (14) Typically, most of these positions are held by junior legal officers who have held at least one other assignment before taking on appellate counsel responsibilities. Their prior military experience is often beneficial in helping them understand the uniquely military aspects of an otherwise typical appellate case, such as flying surface-of-the-earth missions in Italy or interrogating terrorists in Iraq. (15) Another issue that is unique to the military system--and that military appellate counsel regularly face--is speedy post-trial processing. …