“From the moment you hire us,
we fight to put a wall around you.”
As military lawyers, we receive a lot of calls asking us about the court martial process. We believe that anyone facing a court martial needs to be fully aware of what’s happening, so we created this page to answer some of the most common questions. If you or someone you love is facing a court martial, please read the following sections and then call us for a free consultation to see if we can help.
Why You Need a Civilian Attorney at a Court Martial
As we note on our home page, at a court martial everyone assumes the defendant is guilty. You have probably heard that someone accused of a crime is innocent until proven guilty. That’s only true in a strictly legal sense. But in terms of how people really think, once you’re accused of committing a crime, you can forget about the presumption of innocence. At a court martial the judge, the jury, the prosecutors, the commanders, the members of the defendant’s unit – everyone thinks the defendant did it, or else he wouldn’t be sitting there. It takes an aggressive, experienced military court martial attorney to overcome all of that.
From the beginning of the case, the court martial defendant faces huge disadvantages. The government has unlimited resources at a court martial, but the appointed defense counsel’s office receives very little funding. The government will have at least two prosecutors at a court martial, while the defendant is typically entitled to have only one appointed attorney. The prosecution has an entire office of investigators, but the defense is entitled to none. The prosecution can afford to travel have any witness it wants to the court martial testify against the defendant, but the defense needs to get the government’s approval to fund any defense witness travel. The prosecution gets to use just about any expert witness it chooses, but the defense has to get the government’s approval to pay for any of the defense experts, and typically the government denies defense requests for specific experts. During the court martial, the defendant’s commander might pack the courtroom with members of the defendant’s unit, so that the command can send a message. If the defendant gets convicted, the appellate military courts will be very reluctant to undo the court martial results. In every sense, the odds are stacked against the court martial defendant.
The prosecution uses those long odds to intimidate the defendant into taking a deal that he shouldn’t take. The prosecutors get to choose what crimes to charge the defendant with at a court martial, and they’re usually creative about it. This usually means that they will take an “everything but the kitchen sink” approach and charge the defendant with more crimes than they can hope to prove if the defendant chooses to fight the court martial. Many times, the prosecution simply charges the defendant with the same conduct but under several different crimes. This makes his potential punishment at court martial much greater, and the goal is to make the court martial defendant afraid of getting destroyed if he fights – even though his chances are always better if he pleads not guilty and fights the case.
When you’re facing a court martial, you need a strong military attorney who isn’t intimidated by the long odds, the prosecutors, or the investigators. You need a military attorney who has done more trials by court martial than he can count, who knows how to talk to a jury, and who knows how to catch the government when it’s not playing fair. You need a military attorney who has been successful getting good experts appointed to help the defense. Most importantly, you need a military attorney who doesn’t owe the military anything and isn’t afraid that it will threaten his military career if he fights his hardest for the defendant.
What a Court Martial is
A court martial is a military criminal trial. The purpose of a court martial is to determine whether a military member accused of committing a military crime is guilty. In general, just about any criminal offense committed by a member of the military is under the jurisdiction of a military court martial.
If a defendant is convicted at a court martial, possible punishments include prison, loss of rank, forfeiture of pay, and a dishonorable discharge. In almost all cases, the prosecution will seek jail time and a discharge from the military.
A court martial is gravely serious and it’s not a time for amateurs to lead the defense team. If you’re facing a court-martial, you need to find an experienced, aggressive military attorney.
The Court Martial Structure
The basic structure of a court martial is similar to criminal trials you may have seen in civilian courts, on TV, or in movies. Just like civilian trials, a court martial will typically have a judge, jury, prosecutor, defense attorney, bailiff, and court reporter. It will usually take place in a courtroom.
In a court martial, the government tries to prove that a military member committed a crime under military laws. These laws are found in the Uniform Code of Military Justice, and while there are several crimes specific to the military environment, most of the crimes in the UCMJ are very much like the crimes prosecuted in civilian courts.
Examples of crimes specific to the military environment:
- Absent Without Leave (AWOL)
- Dereliction of Duty
- Failure to Obey an Order
* Technically, adultery is still a crime in some civilian jurisdictions but it is prosecuted most commonly in the military.
Examples of military crimes that you might see in a civilian criminal trial:
- Distribution of a Controlled Substance
- Sexual Assault
- Possession of Child Pornography
- The Court Martial Proceeding
Once the case gets into the courtroom, a court martial has two basic phases. First, there is the “findings” phase of the court martial, which simply means it’s the part of the trial where the judge or jury determines whether it is going to find the defendant guilty or not guilty. Second, there is the sentencing phase of the court martial, which only occurs if the defendant is found guilty.
During the findings phase of the court martial, the government gets to go first. The government prosecutors present witnesses and other evidence to try to prove the defendant is guilty. The defense attorneys cross-examine these witnesses and make other challenges to the evidence. Once the prosecutors have presented all their evidence, the defense attorneys can present evidence for the defendant. Lastly, the government gets a chance to go again, if it can rebut (disprove) the defendant’s evidence.
Once all the evidence has been presented, the judge educates the jury about the law, and then the jury meets privately to determine whether the government has proven the defendant’s guilt. If the defendant is found guilty, the sentencing phase begins, usually immediately following the announcement of the verdict. This is one way military trials differ from civilian trials: military trials occur in a very compressed time frame, with everyone working long days until the case is over, whereas in a civilian trial things happen piecemeal and can drag on for years. In the sentencing phase of the court martial, the government again gets to go first. Typically, the prosecutors will present evidence about the impact the crime had on the victim, including the impact on the military mission. The defendant then tries to persuade the jury to be fair, and to give the defendant far less punishment than what the prosecutors are asking for.
In addition to these basic phases you see in the courtroom, a court martial has significant pretrial and post-trial components. A good military attorney will try to find things to attack at every stage of the proceedings, from the investigation all the way through end of the appellate process.
Who Determines Guilt at a Court Martial
The defendant has the option of choosing to have his case heard by a judge or by a jury. The defendant can also spilt it up, having the judge determine the findings phase of the case and the jury determine the punishment if the defendant is found guilty. Military judges are JAG attorneys, and the jurors are military officers and enlisted members. We almost always advise our clients to have the case heard by a jury, and we typically request that the jury contain some enlisted members. We have found that a combination of officers and enlisted jury members gives the defendant the fairest shot in a court martial.
Who Determines Punishment at a Court Martial
The defendant can choose to have a judge or a jury determine his punishment. As with the findings phase, we almost always advise our clients to have a jury determine the punishment, and that the jury be a mix of officers and enlisted members.
Court Martial: Punishment
The punishment you can get in a court martial depends on the seriousness of crime and the type of court martial. Punishments may include loss of rank and pay, jail time, and a discharge from military service. Most people facing a court martial are concerned with the threat of jail time more than any other punishment.
- At a Summary court martial, you could be sentenced to a maximum of 30 days in jail.
- At a Special court martial, you could be sentenced to a maximum of one year in jail.
- At a General court martial, the only limit on how much jail time you could face is the limit provided in the UCMJ for that particular crime. For example, a murder conviction carries the possibility of life in jail, while a conviction for wrongful possession of marijuana has a maximum of two year in jail.
Those are maximum punishments. If you get convicted, you may be able to get far less punishment than the maximum. Your ability to do that will depend somewhat on the impact the crime had on the victim and the mission, somewhat on your service record and potential to become a solid citizen again, and a lot on your attorney.
Court Martial Appeals: What You Can Do
Similar to civilian criminal courts, the military justice systems allows appeals. A military member who receives a serious sentence may appeal a court martial conviction. This means that a court martial conviction is not necessarily the end of the case. In most court martial convictions, there are numerous reasons to request an appeal. If you need to find a civilian military attorney to appeal a court martial conviction, make sure the attorney has extensive experience doing trial work, not just appellate cases. Good trial attorneys are able to read the record of a trial and spot errors that others would miss. If an attorney doesn’t know how to do a trial correctly, it will be very hard for that attorney to spot what went wrong.
Selecting a Court Martial Attorney
To defend a court martial, you need a serious trial attorney. Military trial work is not for amateurs. The military lawyer needs to know the military laws, regulations, and court martial procedures thoroughly. Even though a court martial may look a lot like a civilian trial, there are countless critical details that only a lawyer well-trained in military trials would see. Also, your attorney needs to understand the military mission and how military members think. Throughout the trial, your attorney will have to communicate with commanders, military witnesses, military investigators, and military jurors.
Just as important, your court martial attorney has to be dedicated to trial practice. Your attorney needs to have significant experience in the courtroom. He must have taken top-flight training courses and he must continue to train and do research to ensure that his skills stay sharp and his knowledge of the law isn’t outdated. Make sure that he has spent his career doing contested trials by court martial.
Your military lawyer needs to have the know-how and toughness to protect you from the government and to keep you from saying or doing something that will hurt your case. He has to be willing to tell you what you need to hear, not just what you want to hear.
Perhaps most importantly, your court martial attorney needs to have no fear of military investigators, and no fear of taking difficult cases into a court room and fighting hard for people accused of terrible crimes. Too many military attorneys fear the courtroom, are used to taking plea bargains, and are terrified of having to try a case in front of a jury. Sadly, a lot of military attorneys have too much faith in military investigators, and too much faith in military commanders. But the kind of military attorney you need loves tough cases and isn’t afraid to rock the boat if that’s what he has to do. Even when the defendant’s guilt is clear, you still need a fighter to make sure he gets a fair sentence. Very often, the most important fight is in the sentencing phase.
All of the attorneys at GS&A are experienced, dedicated trial attorneys. We have an excellent record, and we have won many cases the defendant thought was hopeless. We believe strongly that it’s a privilege to be criminal trial attorneys and we are happy to discuss any case, no matter how complicated or ugly the allegations may be. But whichever military attorney you choose for the court martial, make sure you’re getting one that is dedicated to fighting cases like yours. Call us today at (773) 774-6741 for a free consultation.