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Abstract

The thesis of this Article is that most of the vices infesting the military appellate system could be corrected, or at least moderated, by reforming the rules governing when, and how, a servicemember can waive his right to appellate review...Part II of this Article examines the “costs” associated with the appeal of a court-martial conviction, that is, the resources that are required to bring a case through its appellate review. When a courtmartial appeal presents colorable issues that the accused has a moral right to raise (not having waived them at trial), these are “costs” that are well worth expending. But where an appeal presents no colorable issues, or where the accused by his conduct has waived any legitimate right to pursue his arguments on appeal, these costs become an unnecessary and unwise burden to impose on the military justice system. Part III of this Article explores the arguments in favor of reforming the military appellate review framework. An analysis of the military appellate review system demonstrates that it disserves the military’s interest in finality of criminal proceedings, and gives accuseds perverse incentives to take inconsistent positions at trial and on appeal, something that never would be permitted in the civilian context. Most troublesome, the military appellate review system fails to differentiate between cases that present substantial issues raised and preserved at trial and the fairly common case where the accused pleads guilty and raises no issues whatsoever at trial. By subjecting both types of cases to the same appellate review, the military appellate system harms accuseds seeking to raise contested issues on appeal because their appeals are delayed while largely frivolous cases wind their way ahead of them in the appellate pipeline. Part IV of this Article examines potential ways to address the inefficiencies of the military appellate system. Ultimately, the most effective reform is one that is market based, that essentially allows accuseds to self-select as to whether they will pursue an appeal of their court-martial.

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