1 What can I expect when facing a court martial? A court martial is something anyone subject to the Uniform Code of Military Justice (UCMJ) could potentially face. Any one of us could potentially face a false accusation or an unfortunate turn of events and face a court martial. Going through the process can be frustrating and imposing, but the help of an experienced military lawyer can help you through it. Why is nothing happening with my case? As much as the military prides itself on swift justice, many cases can drag on and on during the investigation. To be honest, the majority of cases the military sees these days are sexual assault cases. Once an allegation is made, the machinery of the military takes over. If you are accused either yourself or your accuser will likely receive PCS orders. There will be a long investigation as military investigators dig through your past and speak with everyone they can think of. If your case is at this stage, the best thing you can do is to say absolutely nothing. If you know a potential case is being made against you, it is in your best interests to not talk about what could potentially happen with ANYONE. Once the military has enough evidence to go to trial, everything will start moving incredibly fast and it will seem like everything is an emergency and the military has to get you to trial immediately, even after the long investigation. Do not talk about your case If you are suspected of an offense, do not be surprised if military investigators or your chain of command want to ask you about it. If they suspect you of an offense, they are required to read you your Article 31 rights. If ANYONE ever reads you your rights and asks if you would like to speak to an attorney, the only acceptable answer is to ask for an attorney! Generally military investigators will do what they call rapport building first as they try to gain your trust first. If you are called in to speak with military investigators, they are not your friend, and they are not trying to help or protect you, they are trying to convict you and send you to prison. Be polite and respectful, but under no circumstances should you speak to them when they read you your rights. One of the military s favorite tricks is a pretextual phone call. They will have a friend, colleague, or maybe your accuser call or text you to ask about the case. If you suddenly receive a phone call from someone who is asking you about something bad that happened or even implying you did something wrong, you can certainly bet there are military investigators listening in and recording everything you say. Do not say a word, simply and politely, but firmly end the conversation and call a lawyer immediately. To underscore the importance of not speaking to anyone, I want to share what I do when I prosecute someone. Recently, I was investigating a sexual assault case as a prosecutor for the Air Force. As I spoke to all of the witnesses and all of the close friends and colleagues of the person I was investigating, I routinely asked if that person had been talking about what happened. Sure enough, he had been talking to everyone. His own words are not considered hearsay, so all of the information I learned will be coming in to evidence. A lot of what he said was damaging including him telling a friend of his that he was not sure the victim was able to consent but he couldn t remember anything and he always knew her to be a truthful person. Obviously, that is damaging for him at trial. At a minimum though, even if I didn t want to use anything I learned, I would at least know exactly what his defense would be at trial. He would have zero strategic advantage if he chose to testify. The only reason I was able to get that
2 competitive advantage was because he opened his mouth and talked to his friends and co workers. Never talk about your case, the government will almost always find out and will use it against you. What kind of Court Martial could I be facing? There are three kinds of Court Martials, and what kind of Court you face has a huge impact on what kind of punishment you will receive. While we do not have felonies and misdemeanors in the Military, a good rule of thumb is that a Special Court Martial is the equivalent of a misdemeanor and a General Court Martial is the equivalent of a felony. You will have no control over which type of Court you will face as the military makes that decision. Summary Court Martial: This is the lowest type of court available and is intended for lesser offenses. If you are convicted, the maximum sentence is thirty (30) days of confinement, and a reduction to E 1, hard labor without confinement for 45 days, and forfeiture of two thirds pay for one month. You cannot be given a bad conduct discharge or a dishonorable discharge at a Summary Court Martial. A summary Court Martial is not conducted by a Judge and you will not see anything close to a jury. A Summary Court Officer will be appointed to hear the evidence in your case and determine your sentence. Special Court Martial: A Special Court Martial will seem more familiar because it will be conducted by a Judge and you have the right to a panel (similar to a jury). A Special Court Martial runs much more quickly than a General Court Martial, but there are also import limitations on the punishment you can receive. The maximum sentence you can receive is a bad conduct discharge, confinement for twelve (12) months, forfeitures of two thirds pay for six months, reduction to E 1, hard labor without confinement, and restrictions to base. You cannot be sentenced to a Dishonorable Discharge in a Special Court Martial. In order to be convicted, all the government needs is to convince two thirds of your member panel that you are guilty, we do not need unanimous decisions. General Court Martial: There is no maximum sentence in a General Court Martial except for the maximum punishment for the specific offense you are charged with. What this means is you do not get a break just for facing a lesser court that will be easier for the government. On the other hand, there are more procedural protections in a general court martial. For example, you are entitled to an Article 32 hearing where a neutral military attorney will determine if there is probable cause in your case. In order to be convicted, all the government needs is to convince two thirds of your member panel that you are guilty, we do not need unanimous decisions. However, if a panel sentences you to more than ten (10) years of confinement, three fourths of the panel must agree. Pre Trial Procedure To formally begin the court martial process, you will have charges preferred on you. What typically happens is that you will be called into your Commanders office in service dress. You will be required to formally report in, and will be standing at attention in front of your Commander while the office is full of people. Likely, your First Sergeant will be there along with your supervisor, and representatives from the legal office will be in attendance. Your Commander will be reading from a script as he or she formally accuses you of UCMJ offenses. It will be a one way conversation, and you should not speak. Your job at the preferral of charges is to maintain your military bearing. The next step in the process depends on what kind of court you are facing. If you are facing a General Court Martial, you will go into an Article 32 Hearing. If you are facing a Special Court Martial, you will
3 proceed to referral. I have seen cases that were preferred as a General Court Martial and I focused my efforts on convincing the government to go with a lesser forum and saw the case be referred to a Special Court Martial. Generally at an Article 32 hearing, you need to have a specific strategy and objective. For example, the most common strategy is to be in receive mode and learn as much as you can in advance of trial to earn as much of a competitive advantage there. Maybe you want to focus your efforts on forum to convince the government to reduce to a special court martial. What you need to know about an Article 32 hearing though is that it is a low standard for the government to meet, there are generally very few rules of evidence, and it is often seen as a rubber stamp. I have seen clients spend massive amounts of money hiring private attorneys for an Article 32 and then had no more money for the trial itself. Understand coming into an Article 32 that it is important to have a comprehensive strategy for both trial and the 32, but if you need to put all your eggs in one basket, don t choose the Article 32. The standard the government has to meet is probable cause which means it is more likely than not a crime was committed and you are the one who committed it. Even if the Article 32 officer recommends not going forward, don t be surprised if the military still proceeds towards trial. The next step in the process is referral. If you are facing a Special Court Martial, preferral and referral are sometimes accomplished the same day. If you are facing a General Court Martial, referral cannot happen until after the Article 32 report is completed and presented to the convening authority. Referral is essentially the convening authority agreeing that a court martial should take place. For a Special Court Martial, the convening authority is typically the installation Commander, so whoever is in Command of your base is likely the one who makes the decision. For a General Court Martial, we typically go one rung up the chain of Command, so your installation Commander s boss is likely the one who makes the decision. Your Convening Authority is the person who actually convenes the court at referral. He or she will sign an order to make the Court Martial happen, and he or she will also choose who will serve on the member panel. After Referral, the case needs to be docketed. There will be a telephone conference where your court is scheduled. We look at the schedules of the government, defense attorneys, experts, and Judges. At the end of that phone call, you will have a trial date and a Judge. What can you control? There are four very important decisions that are yours and yours alone. It is important to think about what you want to do and discuss the pros and cons with your attorney. Here are your decisions: 1) You have the right to an attorney. The military will provide you with a free attorney. You can either be represented by this person, or hire an attorney at your own expense. You can also hire an attorney and still keep your military attorney. Now I know a lot of private attorneys like to trash the free defense counsel because they want you to hire them, but the truth is many free military attorneys are excellent. I used to be one, and almost every private attorney who handles Court Martials used to be one. If they have not had any military experience, you might want to choose someone more experienced. There are some great military attorneys, just as there are some great private attorneys. There are also some terrible military attorneys without the experience to succeed. There are also terrible private attorneys. When you make the decision of who to represent you, make sure you are comfortable and do not necessarily go with the first person you meet. This is your life, and finding an attorney who will represent you well is one of the most important decisions you can make.
4 2) You have the right to plead guilty or not guilty. Your attorney will have an opinion based upon the evidence, but this is your decision alone. In fact, pleading guilty is very hard in the military. You cannot just say you are guilty, you have to be sworn in and testify in order to convince a Judge that you are in fact guilty. You will be instructed that if you believe you are not guilty you have a moral obligation to plead not guilty. The American system of Justice is built on guilty pleas, but the military is not. It is a rare case where you are better off pleading guilty. If any attorney tries to tell you that you will be better off pleading guilty, really think that decision through. If you plead guilty, you give up your Constitutional Rights to a trial and to be proven guilty beyond a reasonable doubt. In exchange, your member panel will be given a jury instruction that says many times the path to rehabilitation begins with a guilty plea. I have never believed that hearing that sentence is enough to give up your Constitutional Rights, especially since if you plead not guilty, the jury will be none the wiser. I believe guilty pleas should only happen if you have a strategic reason, meaning there is evidence you can prevent the panel from hearing, or some other major advantage. I am a strong advocate of the litigate to mitigate strategy, which means even in a hopeless case, there are good points to be drawn out during trial to earn you sympathy. Also, I know plenty of defense attorneys who are convinced that juries do not like voting against a defendant twice, so if they already voted against you to find you guilty, it is hard for them to pile on at sentencing. Of course every case is different, but there is strong work to be done even in the most hopeless of cases. 3) You have the right to remain silent. I encourage everyone to remain silent before trial, and I cannot reinforce that enough, do not talk about your case to anyone. At trial, you have the choice to say nothing and force the government to prove your case against you beyond a reasonable doubt. You also have the right to testify, but if that is your choice, you should tell your attorney as soon as possible so he or she can make sure you are prepared. If you get to sentencing, you can choose to remain silent, to testify, or to make an unsworn statement. I love the unsworn statement because it allows you to say anything you want in your own defense without the government having an opportunity to get up and cross examine you. Used properly, it can make a real impact on a panel. 4) Finally, you have the right to decide how your court should be composed. For example, you can decide that you want a member panel composed of only officers, or if you are enlisted you can decide that you want one third of your panel to be enlisted. You can also decide to go with a Judge alone to decide your fate, but I would caution you to be careful. I often say that going Judge alone is an extended guilty plea. If you have very technical defense that a panel might view as quibbling, then a Judge might be appropriate, but you should have a justification behind whatever decision you make. The prevailing view is that a panel of officers will take it easier on you at sentencing because officers see more misconduct and are more likely to have a better perspective and take it easy on you. The prevailing view is often that enlisted members have seen too much bullshit and are more skeptical during findings, but will be tougher at sentencing because they have gone their entire career without getting in trouble, so why couldn t you? For me, I like to learn as much about my panel members as I can early on and base the decision on the individuals rather than stereotypes. Court Martial Procedure The first thing to happen when the court begins is everyone will be reading from a script. For example, the Judge will go over your rights to make sure you understand them. The prosecutor will detail how everyone involved in the court was appointed and ensure the record is clear that the court was properly
5 convened. The script runs everything until we get to arraignment. At that point, you are asked whether you plead guilty or not guilty. Your lawyer will speak for you, and before you can plead guilty or not guilty, the court will take up any motions your lawyer has filed. Pre trial motions are important because it shapes the way the evidence comes into trial. This is our first chance to draw the battle lines and have a much better idea how the evidence will come out. You have a chance to limit the prosecution s case, or to prevent damaging evidence from coming out. Make sure to talk with your attorney about what motions might be appropriate for your case. Next comes Jury Selection. Now we do not have juries in the military, instead they are called panel members, but this is very similar to the civilian jury selection. The stated purpose is to question potential panel members to ensure they do not have a bias against you. For example, we need to ensure that none of them think you are guilty before we even start. Remember, these people were specifically selected by the Convening Authority, so we have a lot of work to do. However, a good attorney has several secondary objectives. For example, we need to introduce our theme and theory, we need to start telling our story and defense as soon as possible, so to the extent we can, we need to be implanting these ideas from the beginning. I know some attorneys who believe jury selection is a waste of time, but I have absolutely won and lost trials during jury selection before. Next comes opening statements. Opening statements are critical, but for some reason overlooked by a lot of attorneys. You are not allowed to argue during an opening statement, but that does not mean you cannot be persuasive. You should generally expect a very boring opening statement from the government that will list out the witnesses who will testify and the evidence they shall present. The job of an attorney in Opening Statement is to capture the attention of the panel and tell a compelling story. If you tell a compelling story in your opening, you have the panel s undivided attention. Storytelling is a powerful device, and if you need any proof of that think about how much money is made in Hollywood. A good attorney can use effective storytelling methods to win over a member panel at the very beginning of trial. You can absolutely win a trial during opening by shaping how the panel views the case. Following opening statements, you will have the presentation of evidence. We get evidence through witnesses. So for example, a victim or police officer will testify about what they saw and observed, and what they say will be evidence against you. You have the right to cross examine them, and an experienced attorney will know how to effectively cross examine witnesses to draw out the points needed for your defense. A good cross examination is limited to the points you need to make rather than reinforcing what the government witness just said. After the government is over, you have the right to present your own witnesses and evidence, and potentially testify yourself. After you are done, the government is given the opportunity to rebut anything the defense just presented. What you should expect is a frankly boring lineup of witnesses. I say boring because it is very rare any new information is presented. Television always scripts dramatic moments of witnesses breaking down on the stand and coming clean, but this never happens in real life. It is ingrained in attorneys to never ask a question you do not already know the answer to, so do not expect too many surprises. Finally, you get to closing arguments. This is finally the moment when your attorney is allowed to argue the case. A novice attorney will have an extremely long closing argument because he or she believes the panel members are hanging on their every word. In reality, after decades of our culture watching television, we have attention spans of roughly six to seven minutes at a time before our minds begin to
6 wander, and as a rule of thumb members start to mentally check out after twenty five minutes. This means your attorney needs to stay focused and on point to effectively argue your case. The prosecution will always go first because they have the burden of proof. The defense is allowed to make their closing argument, and then the prosecution gets the last say to rebut any argument the defense just made. Following closing arguments, the Judge will instruct the members on the law in your case, and they will go to deliberate. Waiting on a jury is one of the hardest things to do. The rule of thumb is that the longer the jury deliberates, the better the odds are for the defendant because clearly at least one person is having problems with the government s case, so hope for a long wait. Sentencing In the military, once the panel gives their verdict we hopefully go home because the verdict is not guilty, but if it is guilty, we go right into sentencing. The government presents their evidence first, and the rules of evidence apply. Next, the defense gets to present almost any information it wants. So for example, you can get character letters from everyone you know talking about how you can bounce back from this. You can present the award you got in high school for saving a friend s life, or an Eagle Scout award, or whatever else you have in your past that speaks to you deserving a chance. The rules are relaxed for the defense so you can present all of this mitigating evidence. Then the government has a chance to rebut anything you just presented, but the rules will be relaxed for the government too at that point, so your attorney should be careful not to give the government any openings. The member panel is again instructed on the law, and go back to deliberate. If you are ordered into confinement, you should expect to be taken into custody as soon as the trial is over. Also, you should expect to be tested for drugs when you are taken into custody, so make sure you do not have anything in your system. Never give up hope The Court Martial process is long and grueling. What I would encourage you to do is not lose hope. Find an attorney that you trust and place your faith in them. I have represented people who were facing the most horrific criminal charges you can imagine, but I have never met anyone I was ready to give up on. Regardless of what happens in the courtroom, all of us still have a path forward in life and something to offer the people around us. No matter what, keep your professional bearing, and stay focused on the future and your way forward. At the end of this grueling process, there is no greater feeling than hearing the two best words in the English language, not guilty. Good luck!