Court-Martial Defense

Military Law Firm Area of Practice: Court Martial Defense

Everyone joins the military for their own persons reasons. Maybe you come from a family of veterans, and that this was the obvious life path for you. Maybe you wanted to pay for college without going into debt, travel and experience the world, retire early, become disciplined, or enjoy the various military and veteran perks. In all these cases, it is unlikely that you ever anticipated being charged with a court-martial as one of your experiences in the military. It is now very hard to not know what will happen next, so we will do our best to explain this very unique process.

What Is a Court-Martial?

A court-martial is a criminal trial against military personnel. It is similar to getting charged as a civilian in a civilian court. But unlike civil charges, a general or special courts-martial are typically reserved for serious offenses.

Facing a court-martial can be scary. I recall awakening one night, in a sweat, after having had a nightmare about being wrongfully accused of a sexual assault related crime. To this day, I shake my head each time a client meets with me, wondering, how they are dealing with it all, and often saying “man, hang in there, we can get through this!” I am hopeful, and perhaps my results show it. Being charged with an offense in this profession comes with a high risk of losing one’s career, respect, and even freedom. So knowing what to expect with a court-martial is profoundly important.

As once memorably declared by Justice Douglas in Wisconsin v. Constantineau, a court-martial, or any adverse action, is a place “where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and opportunity to be heard are essential.” Similarly, “due process is perhaps the most majestic concept in the whole constitutional system.” Federal Administrative Law, American Casebook Series, (9^th Ed.) page 949 As a result, a “grievous loss of any kind” to include the denial of a promotion, and your liberty, must never be influenced by unfair prosecutorial tactics.

By way of education, too, significantly, the Armed Forces offer parole, while the federal process does not. Similarly, court-martial are not retrained to follow sentencing guidelines, and thus, in the case of confinement, courts are empowered to adjudge no confinement in all cases, to include, “no punishment.” In contrast, the arguably draconian federal sentencing guidelines are advisory. Beckless v. United States, 580 U.S. 256 (2017) Nonetheless, they provide ample opportunity to discuss career offender scores, and other sentencing factors related to upward and downward departures on the sentences. The military court-martial is no longer unitary sentencing, this it now shares that with its sister courts, but the potential maximum punishments are commonly far below the sentencing guidelines.

Unfortunately, the risk of getting charged guilty is higher in military court since the organization seeks to maintain order and discipline at all times. This is because a court-martial is treated as a battle against the military itself, even if we maybe never quite see it that way. Moving onward, if the charges are proven beyond a reasonable doubt, an accused may face various punishments depending on the offense. These punishments can include reprimand or administrative warning, fine, restriction, loss of pay and allowances, demotion to the lowest position and pay grade, confinement in the military prison, and dishonorable discharge from the military. In rare cases, capital punishment, i.e., the death penalty, can also be sentenced.

court martial defense – Court-Martial Defense

What Is Court-Martial Defense Attorney?

If you’re facing a court martial or are at risk of facing one, you must know that the military justice system differs greatly from the civil justice system. Due to its uniqueness, you cannot hire a civil attorney to fight your case. Instead, you need someone who understands military law and criminal justice system and has experience with the same. In other words, you need a court martial defense attorney.

A court martial defense attorney is an attorney in military law. They are a civilian but experts at military law. Court martial trials, i.e., military court cases, are the only cases they take up and represent.

When & Why Do You Need a Civilian Court-Martial Defense Attorney?

All active-duty military person in the Army, Navy, Marine Corps, Air Force, Space Force, National Guard, or Coast Guard likely need a heavily experienced court-martial civilian defense attorney as soon as they realize a investigating is taking place. Regrettably, sometimes folks make the common mistake of waiting until the charges are served upon them, i.e., when the investigation is already over. Depending on the case, delaying a “counter strike” could deny an accused a head start in winning the battle.

Of course, the reason many of the court-martialed personnel wait is to later avail themselves of free services of a military lawyer. Court-martialed personnel have the right to be represented by a military attorney for free, but, critically, they are not “detailed” a military defense attorney until after the charges become official. Hence, if you are facing a court-martial, hiring a civil court martial defense attorney could be essential as it allows the court-martialed personnel to avail him or herself of seasoned legal counsel while the investigation is ongoing, which might, in some cases, cause the entire matter to be dropped.

The Process of Court-Martial

As a court-martialed personnel, being aware of the process will allow you to prepare yourself for what to expect. The first thing you must know is that the process of court martial differs from a civilian court trial. It can be divided into the following five steps:

1. Building of a Case

In the past, once there was a complaint made against a servicemember to his or her command, the brass could either brush it off or initiate charges. However, naturally most commands do not initiate charges immediately. Instead, they carry out an investigation to build a case.

As a military member, you may know when this generally happens. But you may not be able to learn the details. It is at this point that you may need to hire a military defense attorney to discuss what you can do, if, and when, various potential charges are initiated, or that investigator asks you for an interview.

While there is a always a possibility that your commanding officer will drop the idea of initiating charges against you after the investigation, you must prepare for the more likely scenario. If you don’t, you could be worse off in the long run.

2. Initiation of Charges

Once your commanding officer is sure that you can be charged for the offense, they will officially inform you that you are being charged for the offense. They will also tell you the offense for which you are being charged.

3. Interrogation

Perhaps the greatest advantage of a court-martial is the applicability of Article 31(b), UCMJ in cases of suppressed confessions. Its protections are triggered whenever anyone has a “suspicion an accused committed a criminal offense.” United States v. Rogers, 47 M.J. 135 (C.A.A.F. 1997) In such a case, “no person subject to this chapter [10 USCS §§ 801 et seq.] may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”

Article 31(b), UCMJ is broader than Miranda “because of the inherently coercive environment of the military command structure, more self-incrimination protections have been given accused servicemen than their civilian counterparts.” Mullins v. Sec’y, 2021 U.S. Dist. LEXIS 173474 In other words, Miranda is only triggered when the suspect is in custody, In contrast, Article 31(b) has no custody requirement. To illustrate, nobody subject to the UCMJ “may interrogate or request any statement from an accused suspected of an offense without informing him of the nature of the accusation ad advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.” The military is an odd world. In essence, the military essentially deputizes everyone in uniform to self-police everyone else, encouraging some inquisitive uniformed members to proactively inquire whether a crime occurred. In fact, military members have a commensurate duty to tattle tale. See, United States v. Heyward, 22 M.J. 35 (C.M.A. 1986)(appellant “failed to report to proper authorities the wrongful use of marihuana by persons known by him to be members of the U.S. Air Force, as it was his duty to do.).

4. Entering a Plea

The accused is given a chance to enter a plea if guilty. If the accused denies entering the plea, the case is scheduled for trial. Of course, you must deny the plea and fight for your freedom.

5. The Trial

Under the UCMJ, the accused also has a right to compulsory process of foreign witnesses. Indeed, in Germany courts-martial our Status of Forces Agreement (SOFA) with Germany (and Italy) dictates that compulsory process may be readily undertaken, with the expressed consent of the national sovereign. Otherwise, defense counsel should be weary that “it is well settled that a defendant’s inability to subpoena foreign witnesses is not a bar to criminal prosecution.” United States v. Sensi, 879 F.2d 899 (D.C. Cir. 1989) In response, the criminal defense lawyer should consider requesting a deposition of the co-conspirator pursuant to the manual for court-martial.

The court-martial process also provides several other unique opportunities to fight the government, including the potential right to Government Information utilizing M.R.E. 506 to review classified “government information which is noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing.” The production of foreign witnesses is common in European courts-martial. Which is fabulous as “the United States courts lack power to subpoena witnesses (other than American citizens) from foreign countries.” United States v. Williams, 722 F. Supp. 2d 1313, 2010 U.S. Dist. LEXIS 78781 Adding to aid the defense, Article 47, UCMJ permits the criminal prosecution in U.S. district court, of civilians, not subject to the UCMJ, who fail to comply with military subpoenas. Civilians like the hypothetical Lockheed director could thus assert Article 47, UCMJ to compel witnesses to travel for his court-martial. If the witness refuses process on a disposition the accused may seek abatement of the proceeding to secure the testimony of a co-accused, by respectfully requesting the immunity be provided this individual. More succinctly, if a convening authority fails to grant immunity, the defense lawyer should seek abatement of the court-martial pursuant to Rules for Court-martial (R.C.M.) 704(e)

The Different Types of Court-Martial

Since not all offense charges are equal, there are three different types of court martial. These include:

· Summary Court Martial

The Summary Court Martial (SCM) is the lowest-level part of the military justice system that deals with minor offenses. It is not considered a criminal prosecution, nor does it require a military judge or attorney. Instead, it involves an arguably perfunctory procedures involving a commissioned officer (Summary Court-Officer) reviewing the facts and making a decision. No military branch, except Air Force, provides the service of a free military attorney for personnel charged with summary court-martial.

If found guilty, the SCM punishment may result in reduced pay for a month, demotion to a lower rank, confinement in military prison for up to 30 days, hard labor for 45 days, or restriction of movement for up to 60 days. Notably, officers cannot be subjected to a SCM, and enlisted members at the rank of E-5 and above cannot go to jail.

· Special Court-Martial

The Special Court-Martial (SPCM) is more akin to a misdemeanor level court, as it stands at the intermediate level of the military justice system. A Special Court- martial is similar to a criminal trial in a civil court. It requires a military judge and a six-member jury (panel)/ Article 52(a)(3), UCMJ requires only three-fourths of the six member panel to convict. In other words, the defense lawyer must convince 3 out of the 6 panel members that his client is “not guilty” to secure an acquittal.

The punishment by Special court martial may include hard labor for 3 months, loss of 6 months of pay, confinement in military jail for 12-months, and a bad conduct discharge. Special Court-martial allow the accused to request the judge to rule on the verdict, and if found guilty, the sentence. Officers can be subjected to a Special-Court martial but they can only be punished by a reprimand, no other punishments are authorized.

· General Court-Martial

The General Court Martial (GCM) is the highest (felony) level of military justice system and deals with the most serious offenses. It requires a military judge and a 8 member panel. Although this will be changing soon, currently, like a SPCM, the accused can elect the panel decide the verdict, and the judge, will then decide the sentence. If found guilty, the accused can receive the maximum sentence allowed by UCMJ. This can include a dishonorable discharge, life imprisonment, and even death.

Client Wins

Areas of Coverage Provided by Court Martial Defense Attorney

A court-martial defense attorney handles all forms of charges under the UCMJ. These include, but are not limited to:

Contempt, disrespect, and assault toward commission officer or other military personnel
Disobedience toward a superior commissioned officer
Disrespectful conduct toward superior commissioned officers or military principles
Wearing unauthorized decoration, badge, device, etc.
Unlawful appointment or enlistment
Unauthorized and false pass
Forgery
False swearing or official statement
Bribery, robbery, or burglary
Arson
Gambling
Failing to pay the debt
Fraternization
Committing fraud the Government
Obstruction of justice
Espionage
Indecent conduct and language
Threatening and provocative behavior
Wrongful taking of items not belonging to one
Damage and destruction to military property
Unauthorized and wrongful possession of controlled substances
Reckless or drunken driving
Inappropriate drunken behavior
Prostitution and pandering
Sexual misconduct or extramarital sexual misconduct
Stalking
Negligent firearm discharge
Murder
Injuring a child or an unborn child
Absence without leave
Desertion
Resistance to arrest or escape from confinement.

Know Your Rights as a Convict

Court martial is not and should not be the end of your service, your freedom, or your life. However, once charged with an offense, you need to stay conscious of your words and actions. Know your rights so you can effectively maintain and prove your innocence:

The right to remain silent
The right to testify
The right to produce evidence and witnesses
The right to discover the opposing party’s case through legal means
The right to bar the admission of evidence by the opposing party
The right to a military defense attorney
The right to hire a civil court martial defense attorney
The right to maintain innocence until proven guilty
The right to request the judge to rule the verdict
The right to raise a motion, i.e., request the court to make a decision regarding a certain issue before the trial begins
The right to appeal if found guilty

A court-martial is not just any trial; it is a trial that can dramatically change your life. A free military lawyer will be useful, but, in some sense, losing your case won’t impact their career, their pay, or their reputation. You should be defended by someone who deeply understands the nuances of what you can lose by losing at court-martial. You must be represented by an attorney who also has their reputation at stake alongside you. Don’t hold back on investing any money for your reputation, freedom, and life…

More Practice Areas

U.S. Air Force

Our aggressive defense of Air Force members has always been dedicated “to the warriors who go forth [into the skies] to find and defeat our nation’s enemies.” American Fighter Pilots I have been defending these men and women in blue since watching a “friendly” game of crud one night in Ramstein, Germany. It is always an enormous pleasure to immerse oneself into the technical complexities that Air Force careers demand. Over the years we have defended pilots, security forces and, of course, folks on the flight line.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: U.S. Air Force courts-martial are unique in their application of Rules for Courts-Martial 801(b)(2)(c) and Military Rules of Evidence 614 in having its judges proactively inviting panel (“jury”) members to ask for additional evidence, after trial and defense counsel rest, but before starting deliberations on the verdict.

U.S. Army

As a former U.S. Army JAG, I fondly recall the hard work, deployments and duties. Above them all, General David Petraeus is an American hero, and he, like many former U.S. Army Generals, have left an indelible legacy on what it means to serve. There is plenty to do. The U.S. Army leads the way, every year, in the number of courts-martial. Its legal experts are brilliant, and as such, have been tasked with training the other military branches, at the University of Virginia, on the rules, procedures and regulations applicable to military justice.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: U.S. Army military judges will not provide the “unsworn statement instruction” during presentencing should the accused wish to waive it; which is typically a good tactical decision. The other services will commonly provide it, however, even if the accused says no. Additionally, this service does a fine job of tailoring fines to offset confinement as detailed in Rules for Courts-Martial 1003.

U.S. Coast Guard

The Coast Guard is a fabulous service. These cases can take one to some far-off places around the United States, as Coast Guard bases are relatively small, and can also be rather isolated. Ultimately, despite some issues, its members have an uncanny knack for finding justice, such as in three notable cases our firm defended U.S. v. Daly, U.S. v. Cooley, and U.S. v. Riesbeck.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: This is the only service that allows the command to initiate involuntary separation even after someone is fully acquitted at court-martial. Over the past five years the U.S. Coast Guard has finally began detailing U.S. Coast Guard members to U.S. Coast Guard courts-martial, prior to that, the only non-Coast Guard members in the entire courtroom was the defense lawyer Navy JAG and yours truly. Put simply, it is nice to now see an even mix of uniforms.

U.S. Navy

It may be all that time underway, but I truly believe Sailors have the best sense of humor of the lot. It is always a distinct honor to represent officers, senior and junior enlisted Sailors. Even more, this service is likely the most practical in handling military justice cases. In other words, while the other services may occasionally seek to over emphasize certain aspects of a court-martial, U.S. Navy JAGs are fabulous at cutting to the root of the matter. It is also an added advantage that U.S. Navy Defense Service Office (DSO) JAGs have their own private investigator working in their office, no other branch of service has such a great resource on staff.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: Naval Prosecutors are particularly adept at negotiating pretrial agreements. They rely heavily on the concept of “probation” as Rules for Court-martial 1109 describes. On the other hand, Captain Masts can be a difficult hurdle when a Sailor is attached to a vessel, as trial by court-martial cannot be demanded.

U.S. Marine Corps

I served several months as a U.S. Marine Corps JAG, most memorably at Camp Pendleton. These are men and women that are not only mentally fit, they are equally physically and spiritually superb. It is always a distinct honor to be in these courts. Additionally, as an aside, I consider the U.S. Marines and U.S. Army to be related, like distant cousins, because their courts-martial panels (“juries”) have the same tendency to render relatively lenient sentences. Put simply, these two services, more than the others, seem to share a common bond of what it truly means to be in harm’s way, and accused who have been to combat undoubtedly benefit from this notion.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: Marines stationed overseas seemingly remain, among all the services, to be the most vulnerable to overseas law enforcement sting-operations.