Certified & Experienced Criminal
Defense Attorney
I’m Stephen Brodsky, a former US Navy JAG Corps attorney and experienced criminal defense attorney in San Diego County.
I am qualified to represent service members before the Navy/Marine Corps Court of Criminal Appeals and the United States Court of Appeals for the Armed Forces.
If you have been convicted at a general or special court-martial and your sentence included confinement in military jail or prison equal or exceeding 180 days, a punitive discharge in the form of bad conduct or dishonorable discharge, you are automatically entitled to have your court-martial conviction reviewed by a military appellate court.
Petition for a New Trial
Your appeals attorney can read the trial record and interview you about your defense to determine if there is a reasonable likelihood that a hunt for new evidence may produce newly discovered evidence that may convince the trial judge to grant you a new trial.
Military Appellate Courts
Each branch of the armed forces has an intermediate court of appeals. For example, a general court-martial conviction of an Air Force service member that resulted in a sentence of confinement of two years and a dishonorable discharge will be automatically reviewed by the United States Air Force Court of Criminal Appeals. You are detailed military appellate counsel, but like new charges, you are much better off employing an experienced military defense lawyer to handle your appeal. Each appellate court has to certify the appellate lawyer to ensure that you are receiving a qualified attorney to handle your appeal. In the San Diego area, the Navy/Marine Corps Court of Criminal Appeals is the intermediate appellate court to which your case is sent to be reviewed on appeal as long as you received a sentence over 180 days, a punitive discharge (bad conduct or dishonorable), you will be entitled to automatic appellate review.
Review by OTJAG and The Convening Authority
The Uniform Code of Military Justice requires that a member of the Office of the Judge Advocate General (OTJAG) review the court-martial to determine if there were problems in procedure or sufficiency of the evidence. Theoretically, a JAG can recommend suspension of punishment, review of errors of trial procedure, and even dismissal of charges for insufficiency of evidence. However, review at the OTJAG level is superficial at best.
The OTJAG does not have a verbatim record of the trial. The trial record OTJAG reviews is a summarized one at best. The convening authority must also conduct a similar review. The Convening Authority has similar authority to overturn a conviction where there is evidence that you have not received a fair trial, that legal errors were committed during the trial and that the evidence as a whole is insufficient to support a finding of guilt. The convening authority also does not review the verbatim transcript of the trial, so review at this level is practically meaningless.
Authentication of the Record of Trial
After the military judge pronounces a sentence following your conviction by court-martial, the court orders the preparation of a verbatim (word for word) transcript of the trial. Defense counsel, government counsel, and the military judge review the record of the trial; the government creates a final record of the trial, which includes all trial and appellate exhibits that are to be considered with the appeal. The military judge then “authenticates” the trial record, in effect, certifying its accuracy and readiness for appellate review.
Clemency
A service member convicted at court-martial can file a petition for clemency. The service member’s appellate counsel may prepare a brief that counsel will most likely use at the higher appellate courts and ask the service member’s convening authority to take a closer look at the authenticated record of trial for legal errors and problems with the sufficiency of the evidence. Your lawyer on appeal will raise these legal errors and problems with the evidence in his brief for clemency. Again, the chances that a convening authority will overturn a court-martial conviction decided by a panel of impartial members are scarce; however, some errors are very egregious, and the evidence is sometimes so inadequate that even a convening authority may rectify the legal errors and insufficiency of evidence by taking actions favorable to your case.
Intermediate Courts of Appeal
In the Navy and Marine Corps, the intermediate court of appeal is the Navy/Marine Corps Court of Appeal. After the convening authority has taken action on your request for clemency, the record of trial is sent to the court of appeal. The court of appeal details assigned appellate counsel to handle your appeal; however, you have the right to consult private attorneys who handle appeals and hire an attorney to handle your appeal.
Most service members convicted of serious crimes like military sexual assault, where the sentences involve long prison sentences, and other harmful punishment, want an experienced appellate attorney to take over the appeal. At this stage, you want an attorney paying exclusive attention to the record of the trial, who will interview you to determine if your trial attorney presented your trial defense properly, hire professional investigators and experts to review the record for errors in the trial.
You can’t afford to hire an attorney who does not have the time to devote himself to your case. Any lawyer you hire must be certified as competent by the court of appeal to present your appeal in the most favorable light.
The Appeal
Your lawyer on appeal will closely study the record of the trial to determine if there are errors of law and problems with the sufficiency of evidence, clearly apparent from reading the trial record. After reading the trial record, a good appellate attorney, like a good trial attorney, will determine what evidence has been overlooked and needs to be examined. A professional investigator will be like blood hounds, hunting down important evidence missed at trial or not factored into the trial strategy. Experts regarding physical evidence may be necessary to handle issues concerning DNA and the testing or retesting of crucial bodily fluids. Once the initial brief is filed by your appellate counsel, the government will prepare its brief in rebuttal to your brief. Your appellate counsel may want to submit a reply brief to the government’s appellate brief to make sure every possible area of appeal has been thoroughly briefed to give you the best possible chance of demonstrating errors of law and problems with the sufficiency of the evidence.
Dubay Hearing
When an intermediate appellate court has read the trial record and determines that it needs additional evidence to render a decision, the court will order a “Dubay Hearing,” and the trial judge will obtain more information requested by the appellate court so that the appellate court can give you, the appellant, every benefit of the doubt.
Issues Raised on Appeal Sufficiency Of the Evidence at Trial
A good and competent appeal's attorney will thoroughly read the trial transcript to determine if the record contained sufficient evidence for the members to reach a verdict that proves all the elements of the charged offenses beyond a reasonable doubt. Occasionally, events occur outside the trial record that could have been introduced on your behalf at trial. This calls into question whether you received effective assistance of counsel, a constitutional right guaranteed by the sixth amendment to the US Constitution. To demonstrate ineffective assistance of counsel based on the trial record itself is very difficult.
Most attacks on your trial attorney’s performance will be found outside the record of trial. The planning and creation of a trial strategy involve hiring good investigators and experts. Sometimes, evidence that should have been developed and used at trial was not done by your trial attorney.
Sometimes, your attorney may have missed crucial opportunities to cross-examine government witnesses at trial that could have made a difference at trial. For example, in a military rape case, your trial attorney failed to call a witness that could have contradicted or discredited an alleged victim or prosecution witness.
Sometimes, physical evidence has not been tested and evaluated by an appropriate expert. The evidence of an expert’s examination may be enough to create reasonable doubt and undermine the credibility of a victim or prosecution witness.
With the encroachment of the Independent Review Commission (IRC) on the Military Justice System, more and more government prosecutors will try anything possible to secure your conviction of military sexual misconduct. As the difficulty of preparing a good defense at trial increases, so does the ability to overturn a wrongful verdict. As the IRC obtains evidence geared to convict you, your appellate attorney must remain vigilant on appeal that a mistake in the appeal doesn’t completely undermine the appeal.
For example, if a statement made by you during a coercive interrogation is suppressed because you were not warned of your right to remain silent, your trial attorney should absolutely be careful not to have you testify about the excluded testimony. Although the government cannot use suppressed incriminating statements or admissions against you in its case in chief, if your attorney examines you about this excluded evidence, the prosecution can introduce these harmful statements against you in rebuttal to your testimony. Such errors can amount to ineffective assistance of counsel, resulting in reversing a conviction.
Consent Defense in Rape & Sexual Assault Cases
Another problem with the sufficiency of the evidence to prove the guilt of rape and sexual assault beyond a reasonable doubt is the issue of consent. The new government push towards securing military sexual criminal convictions will often turn on the issue of consent of the alleged victim. On reading the trial record, your appeal's attorney should be closely looking at what evidence the military judge excluded that was relevant to the defense of consent. This issue arises when it comes to Military Rule of Evidence 412 w which prohibits admission of a victim’s prior sexual history in trying to show that the victim consented to the sexual act.
Although you cannot introduce evidence of the victim’s promiscuity, you can introduce evidence that the victim had sex with another man whose bodily fluids tested positive with the sexual encounter. DNA testing is the gold standard.
The bodily fluids must match your DNA, or the evidence is irrelevant, and you will have a solid claim of innocence. Another exception to the rule against introducing the victim’s sexual behavior does not apply when the sexual conduct happens with you on prior occasions.
Standard for Review
Some issues on appeal are review for abuse of discretion in the rulings of the trial judge. A trial judge that excludes everything the defense tries to introduce to raise a reasonable doubt of guilt may be looked on with skepticism by judges in the court of appeals.
Not every error discovered on appellate review will be sufficient to reverse a court-martial conviction. An error must be shown to have prejudiced you in your trial. Your appellate counsel may be able to show that a different ruling will most likely have raised a reasonable doubt as to your guilt.
Your appeal's attorney must carefully look at the issues that can win an appeal and devote most of the argument that will have the best chance of securing a reversal of the court-martial conviction. Your appeal's attorney must pay as much attention to what happened outside the record of the trial as what happened in the record of the trial.
Special Petitions for Habeas Corpus
Depending on your appeals, the lawyer pays close attention to your conversations with your trial attorney, the steps your trial attorney took outside the trial record to prepare your defense, and the efforts taken to hire investigators and experts to reexamine trial evidence to see if there exists a basis to challenge the verdict.
Please schedule a free, confidential case evaluation if you want to have the best chance of overturning a wrongful conviction at court-martial. This decision will be your final chance to turn your conviction aside and win your freedom.