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To: Lurking Libertarian

2nd count is what I am referring to.


84 posted on 12/14/2010 11:25:49 AM PST by Danae (Anail nathrach, orth' bhais's bethad, do chel denmha)
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To: Danae
2nd count is what I am referring to.

He can appeal the conviction on the second count, but the scope of the issues he can raise in that appeal is limited by what he pleaded guilty to.

Here is a blog written by a retired Judge of the Air Force Court of Appeals. As the judge writes, "For those unfamiliar with the court-martial process: to plead guilty, a military accused must enter into a colloquy with the military judge in which the judge explains the elements of each offense and the legal definitions that accompany it. See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969). The accused has an opportunity to discuss the elements and the definitions with the judge, who must be satisfied that the accused understands them before accepting his plea. The accused must also describe under oath the acts he committed that give rise to his plea, so that the judge is satisfied that he is, in fact, guilty. If the accused makes statements or offers evidence inconsistent with his plea, it cannot be accepted, and the military judge must reopen the discussion with the accused (formally referred to as a “providency inquiry” or more often and informally known as a ”Care inquiry”) to resolve the inconsistency; or, if it cannot be resolved, reject the plea and enter a not guilty plea on his behalf. UCMJ Article 45(a). Per press reports, it appears LTC Lakin entered guilty pleas to three of the specifications of Charge II. For those pleas to be accepted, he would have to explicitly admit that the orders he received were lawful orders which he had a duty to obey."

So Lakin has already admitted that his superiors' orders were valid; he cannot raise that issue on appeal, even on the second count.

96 posted on 12/14/2010 11:32:59 AM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Danae
For what it's worth:

 

court seal drawing
APPELLATE REVIEW

 
Appellate Review of Courts-Martial

Courts-martial are conducted under the UCMJ, 10 U.S.C. §§ 801-946, and the Manual for Courts-Martial.  If the trial results in a conviction, the case is reviewed by the convening authority -- the person who referred the case for trial by court-martial.  The convening authority has discretion to mitigate the findings and sentence.

If the sentence, as approved by the convening authority, includes death, a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or confinement for one year or more, the case is reviewed by an intermediate court.  There are four such courts -- the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Air Force Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals. The Courts of Criminal Appeals review the cases for legal error, factual sufficiency, and sentence appropriateness.  All other cases are subject to review by judge advocates under regulations issued by each service.  After such review, the Judge Advocate General may refer a case to the appropriate Court of Criminal Appeals.  The Courts of Criminal Appeals also have jurisdiction under Article 62 of the UCMJ to consider appeals by the United States of certain judicial rulings during trial.  Review under Article 62 is limited to issues involving alleged legal errors.

The Court’s primary jurisdictional statute is Article 67(a) of the UCMJ, which provides:

The Court of Appeals for the Armed Forces shall review the record in –
 (1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death;
 (2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review; and
 (3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.
Under Article 67(c), the Court’s review is limited to issues of law.

The Courts of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces also have jurisdiction to consider petitions for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651.

The Supreme Court of the United States has discretion under 28 U.S.C. § 1259 to review cases under the UCMJ on direct appeal where the U.S. Court of Appeals for the Armed Forces has conducted a mandatory review (death penalty and certified cases), granted discretionary review of a petition, or otherwise granted relief.  If the U.S. Court of Appeals for the Armed Forces has denied a petition for review or a writ appeal, consideration by the Supreme Court may be obtained only through collateral review (e.g., a writ of habeas corpus).       
 

101 posted on 12/14/2010 11:36:15 AM PST by deport
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