2008 edition - Fort Sam Houston - U.S. Army

R.C.M. 1201(b)(3)(B)
properly submitted under subsection (b)(3) of this
rule and may prescribe the manner by which an
application for relief under subsection (b)(3) of this
rule may be made and, if submitted by a person
other than the accused, may require that the applicant
show authority to act on behalf of the accused.
Discussion
See R.C.M. 1114 concerning orders promulgating action under
this rule.
(C) Time limits on applications. Any application
for review by the Judge Advocate General under
Article 69 must be made on or before the last day of
the two year period beginning on the date the sentence
is approved by the convening authority or the
date the findings are announced for cases which do
not proceed to sentencing, unless the accused establishes
good cause for failure to file within that
time.
( 4 ) R e h e a r i n g . I f t h e J u d g e A d v o c a t e G e n e r a l
sets aside the findings or sentence, the Judge Advocate
General may, except when the setting aside is
based on lack of sufficient evidence in the record to
support the findings, order a rehearing. If the Judge
Advocate General sets aside the findings and sentence
and does not order a rehearing, the Judge Adv
o c a t e G e n e r a l s h a l l o r d e r t h a t t h e c h a r g e s b e
dismissed. If the Judge Advocate General orders a
rehearing but the convening authority finds a rehearing
impractical, the convening authority shall dismiss
the charges.
(c) Remission and suspension. The Judge Advocate
General may, when so authorized by the Secretary
concerned under Article 74, at any time remit or
suspend the unexecuted part of any sentence, other
than a sentence approved by the President.
Rule 1202. Appellate counsel
(a) In general. The Judge Advocate General concerned
shall detail one or more commissioned officers
as appellate Government counsel and one or
m o r e c o m m i s s i o n e d o f f i c e r s a s a p p e l l a t e d e f e n s e
counsel who are qualified under Article 27(b)(1).
(b) Duties.
( 1 ) A p p e l l a t e G o v e r n m e n t c o u n s e l . A p p e l l a t e
G o v e r n m e n t c o u n s e l s h a l l r e p r e s e n t t h e U n i t e d
States before the Court of Criminal Appeals or the
II-168
U n i t e d S t a t e s C o u r t o f A p p e a l s f o r t h e A r m e d
Forces when directed to do so by the Judge Advoc
a t e G e n e r a l c o n c e r n e d . A p p e l l a t e G o v e r n m e n t
counsel may represent the United States before the
United States Supreme Court when requested to do
so by the Attorney General.
(2) Appellate defense counsel. Appellate defense
counsel shall represent the accused before the Court
of Criminal Appeals, the Court of Appeals for the
Armed Forces, or the Supreme Court when the accused
is a party in the case before such court and:
(A) The accused requests to be represented by
appellate defense counsel;
(B) The United States is represented by counsel;
or
(C) The Judge Advocate General has sent the
case to the United States Court of Appeals for the
Armed Forces. Appellate defense counsel is authorized
to communicate directly with the accused. The
accused is a party in the case when named as a party
in pleadings before the court or, even if not so
named, when the military judge is named as respondent
in a petition by the Government for ext
r a o r d i n a r y r e l i e f f r o m a r u l i n g i n f a v o r o f t h e
accused at trial.
Discussion
For a discussion of the duties of the trial defense counsel concerning
post-trial and appellate matters, see R.C.M. 502(d)(6)
Discussion (E). Appellate defense counsel may communicate with
trial defense counsel concerning the case. See also Mil. R. Evid.
502 (privileges).
If all or part of the findings and sentence are affirmed by the
Court of Criminal Appeals, appellate defense counsel should advise
the accused whether the accused should petition for further
review in the United States Court of Appeals for the Armed
Forces and concerning which issues should be raised.
The accused may be represented by civilian counsel before
the Court of Criminal Appeals, the Court of Appeals for the
Armed Forces, and the Supreme Court. Such counsel will not be
provided at the expense of the United States. Civilian counsel
may represent the accused before these courts in addition to or
instead of military counsel.
If, after any decision of the Court of Appeals for the Armed
Forces, the accused may apply for a writ of certiorari (see R.C.M.
1 2 0 5 ) , a p p e l l a t e d e f e n s e c o u n s e l s h o u l d a d v i s e t h e a c c u s e d
whether to apply for review by the Supreme Court and which
issues might be raised. If authorized to do so by the accused,
appellate defense counsel may prepare and file a petition for a
writ of certiorari on behalf of the accused.
The accused has no right to select appellate defense counsel.
Under some circumstances, however, the accused may be entitled