Jason Moy, A SENIOR ASSOCIATE AT THE FEDERAL PRACTICE GROUP, SPEAKS ON COURT MARTIAL CONVICTIONS FOR MILITARY TIMES

Posted By smay || 2-Apr-2021

Bergdahl’s bigger crime: Misbehavior before the enemy

Using a writ of mandamus to collaterally attack a court-martial conviction

By Jason Moy

The “Manual for Courts-Martial” is seen in this 2013 photo by the Fort Meade Public Affairs Office. (Army)

After a conviction in a court-martial there are a few processes that may help reduce or eliminate the sting of the conviction. One is through submitting matters for clemency to the convening authority. See generally Rule for Court-Martial 1106 and Articles 60a-60c, UCMJ. However, after the Military Justice Act of 2016, the convening authority has lost a lot of power to act. After the convening authority takes action, many, but not all, convictions will qualify for appellate review. See generally Articles 65-66, UCMJ. Once all the appeals are exhausted, and no relief has been granted, a court-martial conviction can be collaterally attacked.

A collateral attack is an attempt to overturn a judgment rendered in one judicial proceeding, made in a new proceeding other than the original action or an appeal from that original action. The most commonly thought of collateral attack is a writ of habeas corpus; this option is only available though to convicted service members still in confinement. But what happens if the service member is no longer in confinement? Can he or she still use a writ to collaterally attack a conviction? The answer is yes, through a writ of mandamus.

What is a writ of mandamus? In the simplest terms, a writ of mandamus is a court order issued by a judge at a petitioner’s request compelling the government to execute a duty that they are legally obligated to complete, such as correcting an injustice. See generally 28 U.S.C. § 1361. A writ of mandamus may be an appropriate remedy if (1) the convicted service member has a clear right to the relief sought; (2) there is a plainly defined and peremptory duty on the part of Government to do the act in question; and (3) there is no other adequate remedy available. See benShalom v. Secretary of the Army, 489 F. Supp. 964, 970 (E.D. Wis. 1980). In the context of a court-martial conviction, a writ of mandamus may be used when the underlying conviction is unconstitutional. See Davis v. Marsh, 876 F.2d 1446, 1448 (9th Cir. 1989) (finding that court-martial convictions may be “collaterally reviewable for constitutional or jurisdictional error.”). In benShalom, the petitioner, a former Army reservist who had been discharged from the military for being a homosexual, was successful in getting a court order directing the Army to reinstate her for various constitutional violations. As exhibited in this case, the key thing to find is a constitutional error. For example, that could be ineffective assistance of counsel in violation of the Sixth Amendment, a violation of double jeopardy under the Fifth Amendment, racial discrimination in the selection of a military panel under the Sixth Amendment, or legal and factual insufficiency under the Fifth Amendment’s Due Process Clause.

This option cannot be pursued in every action, though; the individual service member must have “preserved” the error by previously raising it at trial or on appeal. In Davis, an enlisted member charged with various offenses, to include striking her superior non-commissioned officer. Davis contended that the incident giving rise to the allegations was the result of sexual harassment from her superior. She was convicted of all charges. Several years later she petitioned for a writ of mandamus on the basis of two constitutional errors: ineffective assistance of counsel and a lack of due process since no African American women served as jury members. Although both were compelling constitutional issues, the court was unable to issue a decision because neither issue had been raised on appeal.

A writ of mandamus is an extraordinary form of relief that can assist service members in righting the wrongs of a particular court-martial conviction. However, this extraordinary process is not for every case. There are quite a number of steps that need to be taken. There are pitfalls and judicially deemed waivers if the issues are not raised on appeal. But, if after all the appeals have ran, and the service member is out of confinement, this may be one of the last options to collaterally attack a court-martial conviction.

Mr. Moy is a senior associate with the Federal Practice Group. His practice is focused on government contracting, corporate, military and veteran law, and complex litigation. Prior to joining the Federal Practice Group, Mr. Moy served as a judge advocate in the United State Army over 12 years where he excelled as a complex litigation attorney, prosecutor, and defense attorney. Mr. Moy deployed to Afghanistan twice in support of Operation Enduring Freedom. Mr. Moy left active duty as a complex litigation attorney prosecuting several demanding cases including a capital murder trial. His titles included special victim prosecutor, defense counsel training officer, defense counsel, legal assistance attorney, and he served as general counsel and assistant general counsel in various Special Forces commands.

Editor’s note: This is an op-ed and as such, the opinions expressed are those of the author. If you would like to respond, or have an editorial of your own you would like to submit, please contact Military Times managing editor Howard Altman, haltman@militarytimes.com.

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