Military Justice


Right to Counsel – Exercise all of your rights including your right to hire civilian counsel

You have the right to appointed military counsel, the right to individual military counsel, and the right to hire civilian counsel. Contrary to what your command legal officer will tell you, it is not detrimental to hire civilian counsel. The truth is that military Judges welcome competent civilian counsel in their courtrooms particularly counsel who previously served in the JAG Corps. Most active duty military trial defense attorneys are recent law school graduates who lack the experience of seasoned veterans of the court room. However, they are likely to be very bright, well trained, and familiar with the local base. When you hire civilian counsel, you do not lose your appointed military counsel. The appointed military attorney remains on the case and assists your civilian counsel with investigation, legal research, and most importantly knowledge of the feelings and opinions of the prosecutors, legal officers and Commanding Officer on the base. If the military attorney appointed to your case is not effective for your case, you have the right to request any military attorney that you believe might be more effective on your case. This is called an individual military counsel or IMC. If the attorney is reasonably available, then the command will appoint this attorney to your case, as well. Again, even with an IMC, you do not lose your original appointed attorney. A trial team of an aggressive seasoned civilian trial attorney and a strong military counsel is difficult to beat. This does not mean that it is safe to hire the city’s hot shot criminal defense attorney to defend you in military court. It is very important that your civilian attorney have extensive experience in the military and in military courts. Otherwise, the civilian attorney will make critical errors in the defense of the case due to the differences in the military justice system structure and differences in the personality of military personnel.

 

Charging Authority- The biggest difference between civilian and military prosecutions

One of the key differences in civilian and military prosecutions is the charging entity. In the civilian system, the District Attorney is the charging entity. The District Attorney will likely delegate that authority on a daily basis to Assistant District Attorneys employed by him to prosecute the cases. In the military, the service member’s Commanding Officer is the charging entity. The Commanding Officer will review and sign all criminal charges. The command legal officer will advise the Commanding Officer of the facts and relevant law on each case prior to the signing of the charge sheet. The command legal officer may be a Staff Judge Advocate in larger commands or someone who has chosen legal as a rate in smaller commands. On some bases, the Trial shop will assist in the drafting and researching of charges prior to the Commanding Officer’s signature. The legal officer will provide advice and recommendations to the Commanding Officer on the appropriate charge and the appropriate forum for prosecution of the charge. If a decision is made to pursue the charges in a Court-martial, then the Trial shop will prosecute the case.

The truth is that this is a very important factor in military cases. The fact that a Commanding Officer determines the charges and forums greatly affects the way military cases are defended. A non-lawyer Commanding Officer has different concerns and therefore different perspectives on a criminal case than a lawyer in a District Attorney’s office. The Commanding Officer’s primary concern is battle readiness. All other issues, including the feelings of a complaining witness, are secondary. The defense should definitely take this into consideration when preparing a case for forum negotiations or plea negotiations. For example, a Commanding Officer may be more interested in getting rid of a troublesome sailor through an administrative separation procedure quickly than in dealing with the drawn out process of trial which is likely necessary to get the sailor into the brig. By the same token, the servicemember’s interests have more layers of concern. The punishment available at some forums includes a bad conduct discharge or dishonorable discharge. So unlike a criminal conviction in the civilian world, a military conviction resulting in one of these discharges affects the service member’s benefits for the rest of the lives and will affect job opportunities. Those benefits include the benefits in the G.I. Bill, as well as retirement, medical care and Veteran’s benefits. It is important that your civilian attorney understand when it is appropriate to engage in negotiations with a Commanding Officer , what arguments will best sway a non-lawyer military commander, and what result is most beneficial to the service member in order to take advantage of every opportunity.

 

Forum- Do not delay in hiring counsel. Hire counsel in time to participate in forum selection.

The available forums for prosecution of offenses are also different in the military world than the civilian world. Unlike the civilian world, some forums do not create a civilian criminal record. The available forums include Article 15/Captain’s Mast, Summary Court-martial, Special Court-Martial, and General Court-Martial. Because of the limitation in procedural rights under Nonjudicial punishment/Article 15/Captain’s Mast and Summary Court-martial, convictions in these forums are not considered a conviction for purposes of life in the civilian world. Contrary to popular perception it is not always true that you will not get a fair hearing in front of the Commanding Officer or an officer he has designated to hear a Summary Court-Martial. I have won cases at Captain’s Mast and in Summary Court-Martial. In defending a military case, it is important to understand each of these forums and to understand when and how you can negotiate the level of forum as well as why you might want to. The truth is that negotiating the appropriate forum in your case may be the most important thing your attorney can do for you. The forum for your case is chosen almost immediately. Even choosing what forum is best from the defense perspective requires the keen insight of civilian counsel with years of experience combined with the knowledge held by the active duty appointed attorney about the particular Commanding Officer. It is important that you ensure that your representation right up front during this initial phase of the case is as strong as it can possibly be.

 

Article 32 Hearing – Again, do not delay, Hire counsel in time to participate in the Article 32

An article 32 hearing is similar to a civilian grand jury investigation, but with more rights. An Article 32 is a mechanism for investigating charges prior to their referral to a general court-martial. It serves a dual purpose. It operates as a discovery proceeding for the accused and stands as a bulwark against referral of baseless charges. You have the right to be present, the right to be represented by counsel, the right to cross-examine the witnesses and if you choose the right to present evidence on your behalf. In addition, to hearing and questioning the evidence, your attorney will have the right to make argument on your behalf. Whether or not you present evidence at an Article 32 and whether are not you make argument at this point are more of those absolutely critical decisions that require the assistance of seasoned trial counsel in conjunction with active duty military counsel familiar with the command. In many cases, you will not want to reveal your defense at this point in the process. However, in certain cases, such as if you believe that you might convince the Article 32 officer to recommend dismissal of charges, then you might want to present a defense.

At the hearing, the government presents evidence to a pretrial investigating officer, rather than a panel of citizens as is done in a civilian grand jury. The investigating officer is to conduct a thorough and impartial investigation to include inquiry as to the truth of the matter set forth in the charges, consideration of the forum for charges, and a recommendation of the disposition which should be made of the case in the interest of justice and discipline. The investigating officer must be an O-4 or above or an officer with legal training. The investigator will provide a report of his investigation along with the pertinent recommendations to the Commanding Officer for use in evaluating action in the case. Even with a general court-martial, it remains the Commanding Officer’s decision.

 

Nonjudicial punishment (NJP)/ Article 15/ Captain’s Mast – The Commanding Officer’s show regardless of the name you give it, but this is not necessarily bad.

These terms are used to refer to certain limited punishments that can be awarded for minor disciplinary offenses by a commanding officer or officer in charge to members of his or her command. The proceedings are usually formal. If you are headed to NJP, you can expect to find all of the superiors in your chain of command as well as the command legal officer and any fact witnesses in two lines facing each other at attention. In some commands, the entire command will be present in formation. The Commanding Officer will be standing at the end of the line with his Executive Officer. You will be required to march up the line, stand at attention and salute the Commanding Officer. You should speak only when requested and of course exercising the utmost levels of respect. The Commanding Officer will conduct the NJP in his own way, calling any witnesses forward and interrogating anyone he chooses. As part of the punishment, the Commanding Officer may aggressively chastise you for your behavior. Clearly, this procedure is designed to shame a soldier, sailor or airman into behaving properly. If counsel has been involved, you may well already know the punishment or just based on standard punishments for particular offenses in your command. Civilian and/or military counsel may meet with the Commanding Officer prior to NJP. NJP may actually be the end result of aggressive litigation of your case at Court-martial which resulted in a reduction of the forum to NJP through negotiations. I have done this on several occasions involving high ranking service members facing serious charges. When this occurred, the final decision was made in a meeting between counsel and the Commanding Officer. In one case, I was representing a Master Gunnery Sergeant with over twenty years of service in the United States Marine Corps for possession of child pornography on his government computer. This is a grave charge that in the civilian world routinely results in prison sentences ranging from ten to twenty years. The charges were referred to a General Court-Martial. The Master Gunnery Sergeant faced a dishonorable discharge and years in the brig. I defended him aggressively in the General Court-Martial pretrial proceedings with all guns drawn. With some motion rulings going in our favor and a thorough dissection of facts in the hearings, the case was ripe for a meeting with the Commanding Officer. I flew to Marine Headquarters and met with the Man. After a straightforward review of the facts, we agreed that the client would go to NJP and then be allowed to retire. This is one of the reasons that it is important that civilian counsel understand the military structure and personality. Civilian counsel also should not be afraid of senior military commanders. They are human just like the rest of us. They should be treated with the utmost respect, but the lawyer should not back down from presenting a case thoroughly to a military commander.

In another case, I represented an O-5 pilot accused of false official statement. On his medical, he had lied about the existence of an aneurism in his brain. He secured the assistance of his physician to accomplish this. The end result he flew for many years before another doctor caught the error. This is a very serious offense in the military, considering if he had died while in the air, he could kill many people needlessly. Again after aggressive litigation including thorough investigation of the facts and law, and an aggressive battle at the Article 32 hearing, I struck an agreement with the Commanding Officer to reduce the forum to NJP. I cannot remember if he was required to retire as well.

As long as you are not attached to a vessel, you have the right to refuse NJP and request court-martial as the forum for deciding your guilt or innocence. You have this right up until the commanding officer announces the punishment even if you have previously accepted NJP. In other words, you can change your mind in the middle of the proceedings if you get a bad feeling about its direction.

You have the right to confer with counsel prior to NJP. Counsel can assist you in making the decision regarding refusing NJP and in preparing your case should you accept NJP. There are many factors that go into the decision to refuse NJP, all founded in the specific facts of your case, the specific charges and the personality of the Commanding Officer.

It is a myth that you will never receive a fair hearing at NJP. It depends upon many factors which may include the charges lodged, the type of evidence against you, and the personality of the commanding officer. There are occasions when a commanding officer may have a hearing on allegations because he feels that he must do so in order to appease a person claiming to have been victimized.

You have the right to have witnesses speak on your behalf at NJP, including a lawyer. If a lawyer speaks for you, they are treated procedurally as a witness. The lawyer cannot represent you in the traditional lawyer fashion of cross-examining witnesses and presenting witnesses on your behalf in question answer form. However, the lawyer can ensure that your witnesses are present and are given a right to speak. The lawyer can prepare those witnesses prior to the NJP; a prepared witness is better able to effectively present your defense or mitigation. This is very important since the lawyer will not be able to assist the witness’s memory in the NJP by asking a question. The lawyer can also suggest questions that the commanding officer should pose to government witnesses. And the lawyer can present argument on your behalf. Yet again, deciding whether to do this and the particular technique to use requires the assistance of seasoned counsel. I have successfully represented servicemembers at NJP. When I was on active duty, serving as the base defense attorney, I chose very carefully when I did this and how I did it. As a result, when I appeared, Commanding Officers generally gave great deference to my comments. I am not necessarily recommending that you bring civilian counsel to an NJP. In fact, it will be a very rare occasion when this would be appropriate. However, you need the assistance of counsel in making decisions regarding your rights including the decision whether to refuse NJP, and the decision to proceed with witnesses at NJP. Counsel can also assist you in preparing your case, preparing any documentary evidence, and preparing any written statement that you may decide to present. Of considerable value, civilian counsel may meet with the Commanding Officer prior to the NJP to discuss the case and your position. In the child pornography case that I described earlier in which the forum was reduced to NJP, I did not attend the NJP. I sent the military attorney and of course I had already negotiated the result of the proceeding. In the false official statement case, I attended the NJP, because I was on active duty.

As you will see with each forum, with the assistance of counsel, know your case, know the law, and know the risks and personalities of the chosen forum.

 

Summary Court-Martial-  This court-martial is nothing in the civilian world which means your civilian record is clear!!

A Summary Court-Martial is the least formal of the court-martial proceedings and the least protective of individual rights. It has no civilian counterpart. It is strictly a creature of military procedure. As a result of this fact, it is not considered a criminal conviction for purposes of the civilian world. If you are found guilty at a Summary Court-Martial, you can safely answer no when asked if you have a criminal record on a job application. Your future career is a very important consideration in the resolution of any case. This is the truth about Summary Court-Martial.

The Supreme Court has decided that because it is a creature of the military, the procedural safe guards in the other federal court proceedings will not apply. The end result of this argument is that you are not entitled to appointed military counsel. However, you are entitled to retain civilian counsel and in practice I believe most commands give you appointed military counsel as well.

The Summary Court-Martial is a quick trial in front of a commissioned officer of preferably O-3 or above. The officer need not be JAG, but should be selected by reason of age, education, experience and judicial temperament. Commanding Officer’s are taught that the performance of a summary court-martial officer may very well affect morale and discipline of the command, so the choice should be well-reasoned. As a result, again, do not assume that you cannot receive a fair trial in this forum. In choosing a strong officer with a judicial temperament, the Commanding Officer may very well choose the best possible juror for your case.

I tried a Summary Court-Martial in an Air Force case. I was civilian counsel, but I was permitted the assistance of excellent appointed military counsel. The client was accused of assaulting an officer. He had in fact punched a doctor in order to get her to release his baby to him. We put on a defense of necessity. The Summary Court-Martial officer permitted us to put on our entire case without any limitations and he spent a significant amount of time deliberating with himself. Then, he rendered a verdict of not guilty.


Special Court- Martial – military equivalent to a misdemeanor court

A Special Court -Martial has limited punishment range, making it akin to a misdemeanor in the civilian world.

Once you arrive at this forum, the rights and procedures are somewhat similar to a civilian trial with a few critical differences. The first thing is that there is a formal script in the nature of a ritual that is followed until you get to the motions phase of the trial.

Second, a jury in the military is selected in a very different manner than the civilian world. In the civilian world, we summons a room full of juror around 60 in your average civilian courtroom. We ask them a bunch of questions, then get to move to strike anyone that we feel can’t be fair. Then, get to strike a number of people just because we choose to do so. We do not need any reason. In the military, the Commanding Officer selects the members. He generally chooses a couple of extra members. Then, at trial, you have the right to question these members to see if any of them have biases that will prevent them from being fair. You can then move to strike members for cause who you do not believe will be fair. You do not get to strike members just because you don’t like them. All of the members will be officers unless you request enlisted members. This is not necessary a bad thing. Officers are usually young, over educated and under trained. They generally really believe in the requirement of proof beyond reasonable doubt, and they are all leaders so they are not afraid to vote their conscience.

At this point, preparing for the trial is similar to preparing for trial in the civilian world.


General Court -Martial – military equivalent to a felony court

A case cannot be referred to General Court- Martial without first being heard by an Article 32 officer. Other than that, it’s the same procedure as the Special Court Martial with a few more jurors and felony offenses. The punishment range is not limited in a General Court-Martial. Other than that my comments in regard to Special Court-Martial apply to General Court-Martial.

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