A court-martial is a serious situation, no matter what the charges are. Most people, even military personnel, are not intimately familiar with the military court process, and it can be frightening. The first thing you want to do is remain calm and don’t adopt a defensive posture. It is possible to make a bad situation worse when you react before thinking.
Whatever the charges are against you, they are related to an incident in the past that cannot be undone now. What you do from here forward can affect the outcome of the court-martial and how your life and military career proceed. Understanding what to expect during the court-martial process and taking every opportunity to act in your own best interest will improve your chances for a favorable outcome.
In addition to acting in your own best interest, you need to find others who will act on your behalf. The legal system is adversarial by nature. There are two sides to a court-martial, yours and the government. No one is acting in the best interest of both sides. Be aware that most people you speak with will be on the government’s side, if only because they are employed by the government and bound by loyalty.
If charges have been brought against you at a court-martial, or you are under investigation by one of the military’s investigative services, your best allies may be outside of the military. Do not forget to look to civilians for the support you need. A civilian attorney could be your best chance of getting through this difficult situation.
What is a Court-Martial?
A court-martial is the military equivalent of a civilian trial. It is usually reserved for offenses that are of a severe nature, and could not be handled administratively (such as through a reprimand, non-judicial punishment, or involuntary separation).
Several groups of people are subject to military law, which is codified in the Uniform Code of Military Justice, and therefore could be subject to a court-martial. The most common of these include:
¥ Military personnel regardless of branch of service
¥ Reservists while on active duty or inactive duty training
¥ Retired military members collecting pay
¥ National guard serving on Title 10 orders (each State has its own version for those who are not on Title 10 orders)
There are three different types of courts-martial depending on the severity of the offense:
General Court-Martial — Used for the most severe crimes, a general court-martial can be decided by a military judge or a five-member panel and a military judge. This is often considered a “felony” level court-martial because the accused can receive in excess of one year confinement if convicted. Before progressing to a general court-martial, a hearing under Article 32, UMCJ, is convened to determine if there is enough evidence to support the charges. In an Article 32 hearing, the accused may offer evidence, present arguments, and cross-examine witnesses. The accused may also waive the right to an Article 32 hearing and go straight to the general court-martial.
Special Court-Martial — These proceedings are usually reserved for “misdemeanor” level offenses, because the maximum sentence is one year of confinement. Because the potential punishment is less severe than a general court-martial, there is no requirement to first convene an Article 32 hearing. Aside from these two main differences, a special court-martial is essentially the same as a general court-martial, and the defense’s approach should be no different.
Summary Court-Martial — A summary courts-martial is vastly different from a special or general court-martial, and, aside from the possible sentence of 30 days in confinement, a summary court-martial is more similar to non-judicial punishment. The proceeding is run by a commissioned officer, not necessarily an attorney. The accused may refuse a summary court-martial for a special court-martial or general court-martial instead, which affords more due process rights and protections (such as trial by members).
During a Court-Martial, Who Represents the Accused?
A military attorney is appointed to represent the accused in a special or general court-martial. Depending on the branch of service, and the particular installation, the military attorney will usually not be appointed until charges are preferred (which means charges are actually brought against you). This means the military attorney will not be able to represent you while you are under investigation, and he or she will likely be unfamiliar with your case when first assigned.
During a Court-Martial, Who Represents the Government?
When the government brings a case against you in a court-martial, they have a team of lawyers to represent them. Some of those attorneys may have been researching evidence in your case before you were informed of the charges.
The Court-Martial Process
Court-marital procedures are similar to those in civilian court. Some steps need to be taken in a particular order to move forward. The timeline is dictated by procedure.
The first step in a court-martial is “preferring” charges. You will be read the charges against you by the investigating officer and asked to acknowledge them with your signature. When the charges are preferred, then they will be referred to a summary, special or general court-martial. An Article 32, UCMJ, hearing must be held prior to any charges being referred to a general court-martial.
If you go to an Article 32 hearing, that will be scheduled next. At that hearing, both the prosecution and defense present evidence and argument to a preliminary hearing officer. The preliminary hearing officer then determines if there is sufficient probable cause to support the charges, and if so, what is the most appropriate disposition. This could range from a recommendation to have the charge(s) withdrawn, to referral to a general court-martial.
The next step is arraignment. Once charges have been referred to either a special or general court-martial, you will then appear in court before a military judge. The military judge will formally read the charges against you, and you will enter your election of pleas (either guilty or not guilty) and forum (tried by military judge alone or a panel of members). The military judge will then set a scheduling order which will list the dates for any motions hearings and trial.
If convicted, you may seek clemency through the Convening Authority. Clemency is a request to the convening authority (the commanding officer who referred the charges to a court-martial) to either reduce the punishment, or set aside a conviction. In recent years, the ability of a convening authority to grant clemency has been reduced by Congress. However, if you believe there are any errors that affected your court-martial, and conviction, it is important to put these in the clemency request to ensure it becomes a part of he record of trial for any appeal.
The final step is an appeal. If convicted, and depending on the severity of your case, your case may have rate automatic appeal by the court of criminal appeals for your respective branch of service. If you do not receive relief at the court of criminal appeals, you can petition the Court of Appeals for the Armed Forces, and then the US Supreme Court, to hear your case. It is up to those courts whether they will hear the appeal.
The timeline for a court-martial depends on the severity of the charges. Typically, a summary court-martial can be resolved in a few weeks or months. A special court-martial may take 3-6 months to be settled by a military judge, but if you opt for the panel, it will be longer. General court-martials average about a year to complete. The timeline for your case can be significantly affected by the number and location of witnesses, number of other cases on the docket, and other scheduling conflicts.
Court-Martial Punishments
When the court-martial verdict is read, sentencing begins right away. The defense can present any evidence it has that might convince the panel or the judge to hand down a light sentence. There are few restrictions on what information can be presented.
The range of possible punishments for a guilty verdict are associated with which type of court-martial you face. Punishments in a summary court-martial can be no more than 30 days confinement, forfeiture of 2/3 pay for one month and pay grade reduction (which is rank dependent). If you are found guilty in a special court-martial, you could be sentenced to up to one year confinement or up to three months of hard labor. The special court-martial maximum punishment is a bad conduct discharge. Punishments for general court-martial are not limited and can include death. Certain convictions, such as for Article 120, UCMJ (Sexual Assault), have mandatory minimum punishments, such as an automatic punitive discharge. If your sentence includes confinement, you will be remanded as soon as the trial is over. Even if you appeal your conviction, a stay is not automatically granted.
A court-martial conviction will also affect your civilian life. If you are convicted by a court-martial, it is the same as having a felony or federal conviction on your record (regardless if you went to a special or general court-martial), and you may encounter significant difficulties with employment, and denial of veteran benefits
Court-Martial Defense
When you are brought to a court-martial, the odds are not in your favor. It is important to take every advantage you can to avoid conviction, since a conviction will follow you for the rest of your life. Here are some things to keep in mind when you are notified of a court-martial:
¥ Remain silent. It is your basic right under the law to not answer questions or make a statement. When you are accused of something, it is natural to want to explain yourself. Your commanding officer may try to give you that opportunity, but be aware that the command can, and will often try, to use, anything you say against you. Do not talk about the charges, the incident or anything related to your conduct until you speak with a lawyer. You will have a chance to clear your name, through your attorney, at the appropriate time when it will do you the most good. Until then, remain silent. This included friends, family, superiors, and peers.
¥ Exercise your right to refuse. You may be asked to consent to a search of your person or property. By consenting to this request, you are helping the government build a case against you. They may be entitled to search you, but they will need a warrant to do so. When you give your consent, it speeds up the process and makes their job easier. Calmly and politely refuse a search. When they have a warrant, they will execute the search anyway, but by then you should have legal representation.
¥ Secure your own evidence. The longer the investigation takes, the more information will disappear. If you have any emails, text messages, or other materials that provide evidence about what took place, be sure to secure them. You may need to print text messages and email and keep copies of them for your defense. Even snapshots or social media posts could be helpful and might be destroyed over time. Save them, print them or in some way capture them for later reference.
¥ Do not take legal advice from anyone but your attorney. When you are in legal trouble, everyone wants to help you. Most people learn about legal procedure from movies or television shows. Even people who have been through the system are not experts. Each case is different, and a court-martial requires a well-thought-out legal strategy. Lawyers who do not practice military law will not be able to guide you through this process. You should only take legal advice from an attorney experienced in military law who is representing you.
¥ Make notes. While the incident is fresh in your mind, make some notes about what exactly happened. Write down everything you can remember, from what was said, to who was there and where everyone was positioned. Jot down a timeline of events, so you don’t forget. This information will be helpful for your defense.
¥ Ask for legal representation. Even a career military officer is not equipped to handle his own defense in a court-martial. No matter what your rank is and how much experience you have with legal issues, you need an attorney. You should have an attorney with you anytime you are questioned. Ask for an attorney, and do not speak until one is provided for you. When an attorney arrives, be sure to clarify that he is representing you before following his instructions.
¥ Consider a civilian attorney. You have the right to hire your own attorney, and it may be the best option for you. Do not be fooled into thinking that military attorneys know the law best. Many civilian attorneys have extensive experience in military law and can provide you an excellent defense in your court-martial. One advantage a civilian attorney has is that he or she is not employed by the government. When working on your defense, a civilian lawyer is not arguing against the organization that pays their salary. A civilian attorney may be able to more objectively represent you than the attorney the military appoints to your case.
There is a lot that can be done to mitigate the impact of a court-martial. It starts with your calm and reasoned approach to the situation, and the involvement of a military defense lawyer in Camp Pendleton as early as possible.
Thanks to The Federal Practice Group for their insight into court martials.