Courts-Martial Defense – Military Defense Lawyers
The military defense lawyers at Brett O’Brien Law provide aggressive and highly experienced court-martial and UCMJ representation. Moreover, we defend Army, Air Force, Navy, Marine Corps, and Coast Guard cases worldwide, at any military facility in the world. Thus — regardless of your physical location or service branch– our military defense lawyers can handle your military criminal law case.
A criminal trial in the military is known as a court-martial. At Brett O’Brien Law, our military defense lawyers know the military justice system inside and out. This is extremely important if you are being accused of a crime in the military, due to its unique criminal justice system. While most people have a general understanding of the civilian criminal justice system, the military criminal justice system is unique and differs in many ways from a civilian criminal trial. Thus, it is very important that any attorney that represents a military member at a court-martial has specific military defense experience.
Our military defense lawyers have litigated numerous court-martial cases — as both prosecutors and defense counsel. This is a distinct advantage that allows us our military defense lawyers to objectively analyze both sides of a criminal case. In addition, our experienced military defense lawyers not only have extensive prior experience serving as Active Duty JAG officers — they are also currently serving as Reserve JAG officers.
Types of Cases We Handle
The military defense lawyers at Brett O’Brien Law handle all courts-martial charges including, but not limited to:
● Absence Without Leave (AWOL);
● Absence without leave;
● Resistance, flight, breach of arrest, and escape;
● Contempt toward officials;
● Disrespect or assault toward superior commissioned officer;
● Willfully disobeying superior commissioned officer;
● Insubordinate conduct;
● Failure to obey order or regulation;
● Fraudulent or unlawful enlistment, appointment, or separation;
● False or unauthorized pass offenses;
● Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button;
● False official statements; false swearing;
● Military property of United States—Loss, damage, destruction, or wrongful disposition;
● Leaving scene of vehicle accident;
● Mail matter: wrongful taking, opening, etc.;
● Drunkenness and other incapacitation offenses;
● Wrongful use, possession, etc., of controlled substances;
● Drunken or reckless operation of a vehicle, aircraft, or vessel;
● Communicating threats;
● Riot or breach of peace;
● Provoking speeches or gestures;
● Murder or manslaughter;
● Child endangerment;
● Death or injury of unborn child;
● Rape and sexual assault;
● Other sexual misconduct;
● Fraudulent use of credit cards, debit cards, and other access devices;
● False pretenses to obtain services;
● Receiving stolen property;
● Offenses concerning Government computers;
● Frauds against the United States;
● Obstruction of justice;
● Conduct unbecoming of officer;
● Dishonorably failing to pay debt;
● Disorderly conduct, drunkenness;
● Extramarital sexual conduct;
● Firearm discharging through negligence;
● Gambeling with subordinate;
● Indecent conduct;
● Indecent language; and
● Pandering and prostitution.
The Court-Martial Process
The court-martial process is governed by a variety of rules, including the Manual for Courts-Martial (MCM), which contains the the Rules of Courts-Martial (RCM) (located in Part II of the MCM) and the Military Rules of Evidence (MRE) (located in Part III of the MCM), as well as the Uniform Code of Military Justice and other service-specific regulations.
There are three types of courts-martial: (1) General Court-Martial (GCM); (2) Special Court-Martial (SPCM); and (3) Summary Court-Martial (SCM), each of which are explained in detail below.
● General Court-Martial. A General Court-Martial (GCM) is the most serious type of court-martial. It is reserved for the more serious crimes, similar to felonies in civilian jurisdictions. Maximum possible punishment is determined by the charged offense but may include: reduction to grade (E-1) (with the exception of officers); forfeiture of all pay and allowances; dishonorable discharge or dismissal; confinement for life; death; and unlimited fines. Unless trial by military judge is elected, the total number of court members (jury) is between five and eight officer members, with one-third enlisted members at the election of the servicemember. A Pretrial Hearing under Article 32 of the UCMJ must take place before a case may be referred to a GCM, unless the accused waives this right.
● Special Court-Martial. A Special Court-Martial (SPCM) is the intermediate level of court-martial. A conviction at a special court martial is similar to a misdemeanor conviction in the civilian court. Maximum possible punishment for a SPCM could include: reduction to grade (E-1); forfeiture of 2/3 pay per month for 12 months; bad conduct discharge; confinement for 12 months; and fines. Unless trial by military judge is elected, the total number of court members (jury) is three to four officer members, with one-third enlisted members at the election of the servicemember. An officer cannot be tried at a SPCM.
● Summary Court-Martial. Summary Court-Martial (SCM) is the lowest level of court-martial and involves a simplified resolution of charges involving minor incidents of misconduct. A SCM is not considered a “criminal prosecution.” The SCM is composed of a single commissioned officer. Moreover, the government will not be represented by a prosecutor. Officers cannot be tried at a SCM. Maximum punishments for an E-4 and below include: reduction to E-1; forfeiture of 2/3 pay for one month; and either 60 days of restriction, 45 days of hard labor, or 30 days confinement. Maximum punishments for E-5 and above include: reduction of one grade; forfeiture of 2/3 pay for one month; and 60 days of restriction.
As can be seen, individuals facing a General Court-Martial or Special Court-Martial can decide who will hear his or her case – whether a military judge alone or before court members (similar to a jury). If the accused chooses to go to trial before court members, the rank of the members is dependent on the rank of the accused. For example, an enlisted accused may choose between a panel of all officer court members or a panel that includes enlisted court members. If enlisted court members are chosen, at least one-third of the court members must be enlisted and they must all outrank the accused. Moreover, if an officer accused chooses a court-martial before court members, the court members must all be officers and they also must all outrank the accused.
Deciding whether a military judge or panel should hear any given case is not a one-size fits all determination. Instead, it is a matter of trial strategy, similarly to deciding matters such as jury selection, which witnesses should be called to testify, and whether the accused himself or herself should testify. Only a military defense lawyer with substantial trial practice is qualified to make such decisions of utmost importance.
Article 32 Hearing Process for General-Court Martial
As discussed above, if a commander determines that the case should proceed to GCM, a preliminary investigation under Article 32 of the UCMJ must take place. This investigation is similar to an indictment before a Grand Jury in the civilian world and is designed to protect service members from having to face baseless charges.
Article 32 hearings are conducted before an impartial Preliminary Hearing Officer (PHO) who must determine:
1. Whether there are reasonable grounds to find that an offense occurred and that the accused committed it;
2. Whether the charges are in the proper form (general, special, or summary); and
3. The appropriate level of disposition for the case.
The accused has important rights during the Article 32 investigation process, including: (1) the right to be informed of the charges against them; (2) the right to know the identity of their accuser; (3) the right to be present (with certain exceptions) throughout the taking of evidence; (4) to be represented by an attorney; (5) to be informed of the witnesses and evidence against them (6) to remain silent; (7) to cross examine witnesses; (8) to produce witnesses; (9) to produce evidence; and (10) to make a statement.
When the PHO concludes the Article 32 investigation, they will make recommendations to the convening authority, who is free to adopt them in whole or in part, after which the convening authority can refer the case to trial by GCM. Although a convening authority at this point can dismiss the matter altogether, or recommend a lower level disposition (such as SCM or SPCM), the majority of matters that go through an Article 32 hearing are referred to GCM.
Your Rights as the Accused
When a case proceeds to court-martial, the accused has a variety of rights, including:
● The right to be represented by a military defense lawyer (at no cost) and by a civilian defense lawyer (at the accused’s expense);
● The right to raise motions regarding legal issues in dispute;
● The right to decide whether your case will be heard by a military judge alone or a panel of court members;
● The right to invoke the Military Rules of Evidence regarding evidentiary issues;
● The right to rely on the Government’s burden to establish the charged offenses beyond a reasonable doubt;
● The right to remain silent;
● The right to testify;
● The right to produce witnesses and evidence;
● The right to discovery; and
● If convicted, to present matters in extenuation and mitigation.
Why Hire a Civilian Military Lawyer?
If you are facing a GCM or SPCM, you will be appointed a free military defense lawyer within your branch of service. This is similar to how public defenders are appointed in civilian courts. You also, however, have the right to be represented by a civilian lawyer. Oftentimes, it is in your best interest to hire a civilian military lawyer.
You are probably wondering why you should consider hiring a civilian lawyer if the government provides you with an attorney free of charge. Military courts-martial are federal criminal trials. In court-martial trials, you face considerable jeopardy, including a federal criminal conviction, confinement, punitive discharge, and a variety of other consequences to your career and family including losing your job, retirement, housing benefits, medical benefits, your enlistment bonus, and/or the cost of you military academy education. Thus, courts-martial are serious matters with serious consequences. Relying on a free JAG lawyer to represent may turn out to be more costly in the long run.
The question of whether you should hire private counsel in this context is similar to asking whether a civilian being charged with a crime should rely on the representation of a public defender as opposed to a private defense attorney. Oftentimes, military-appointed lawyers (similarly to civilian public defenders) are overworked and/or have little to no actual trial experience. Placing your freedom and career in the hands of anyone but the most qualified lawyer in these circumstances should be avoided at all costs.
Put simply: you will not be getting the best possible representation with a government appointed lawyer. If you are represented as a military defense lawyer at Brett O’Brien Law, however, you can rest assured that you will be obtaining the best lawyer to represent you.
Moreover, if you choose to hire a civilian defense attorney, you can usually keep your detailed military counsel (the one provided by the government) at no charge. This means that you effectively will be represented by two attorneys for the price of one.
In addition to the above considerations, below are some additional reasons why you should hire your own lawyer to represent you:
● While the U.S. government has unlimited resources at a court-martial hearing, the appointed defense counsel’s office receives very little funding;
● While the government will have at least two prosecutors at a court-martial, the defendant is only appointed one attorney;
● While the prosecution has an entire office of investigators at its disposal, the defense is not entitled to any;
● While the prosecutors assigned to your case will likely have significant trial and courtroom experience, it is highly unlikely that your appointed defense counsel will have anywhere near as much courtroom experience;
● While the prosecution can travel any witnesses it wants to court-martial to testify against the defense, the defendant needs to obtain government approval to fund defense witness travel;
● While the prosecution can use any expert witness it chooses, the defense must obtain the government’s approval to pay for defense experts (and often, the government denies requests for specific experts); and
● While the military appointed defense attorney is employed by the military – the very organization that is charging you – and must answer to senior officers who are responsible for their promotion, the military defense lawyers at Brett O’Brien Law don’t have to worry that their representation of you will affect their military careers.
Another consideration is the fact that government defense attorneys may not be available to you until you have been charged with a crime or are under serious investigation. Civilian lawyers, however, are available at any time. You should never wait until you are interrogated or formally charged with an offense before consulting with your lawyer. Instead, at the first sign of trouble you should hire an attorney so that you will be defended every step of the way.
As you can see, the odds are stacked against the accused from the start. Thus, if you are facing a court-martial, you need an aggressive military defense lawyer that isn’t threatened by the system. You also need a military defense lawyer that has litigated more trials than he can count and one that knows how to catch the prosecution when it’s not playing fair.
Worldwide Representation – Our Experienced Military Defense Lawyers Will Come to You!
When you are facing a court-martial, you need a strong military defense lawyer that is not intimidated by the government, who has done more trials by court-martial than he can count, and who knows how to talk to a jury. The attorneys at Brett O’Brien Law are experienced, dedicated military defense lawyers.
Moreover, as discussed above, we defend Army, Air Force, Navy, Marine Corps, and Coast Guard cases worldwide,worldwide. Thus — regardless of your physical location or service branch– our military defense lawyers can handle your court-martial case.
If you are facing disciplinary action within the military, your future will depend on how effectively your lawyer can represent you. Contact our experienced military defense lawyers today for a free consultation. Call us today to schedule a free consultation at (202) 600-4996.