The Value in Retaining Counsel Early in the Case
Choice of counsel is one of the most important decisions you will ever make.
Every service member has a 6th Amendment, Constitutional right to his or her choice of counsel. Skilled attorneys can often preserve valuable evidence early in the case before witnesses forget, become reluctant to talk, or evidence is destroyed. We can also communicate with the command to try and dispose of charges before they are brought. It is even more valuable when counsel can become involved before even law enforcement. Additionally, many military defense lawyers do not independently investigate their own cases.
It is important to look for an attorney that is:
-Can communicate (communication is a two-way street - you should not feel reluctant to contact your attorney);
-Reasonable in fees;
-Available to properly prepare the case.
The pre-trial phase ordinarily begins with the member learning that he or she is under investigation. You always have a right to counsel. By speaking to a lawyer in the pre-trial stage, your chances of a favorable outcome improve dramatically. If you have recently learned that you are under investigation, contact this firm for a free consultation.
The importance of getting a lawyer involved as earlier as possible cannot be overstated. Early in the process, the government has access to all of the witnesses and purported evidence. By getting this firm involved at the pre-trial stage, we can conduct tape-recorded interviews of key witnesses, produce transcripts of those interviews, sometimes visit important sites when necessary, save social media posts from the alleged victim before they are deleted, and conduct our own independent investigation of the allegations.
Article 32 Investigation
Following an investigation stage, the government will prefer charges against an accused service member. If you are facing a general court-martial, you will receive notice that the government intends to hold an Article 32 Investigation into your charges. You should never waive your right to an Article 32 Investigation without consulting with an experienced attorney. It is important for you to have experienced counsel at the Article 32 Investigation, because many witnesses will testify under oath. You need experienced counsel to help you cross-examine key witnesses to use their testimony at trial.
A general court-martial is the most serious level of military courts. It consists of a military judge, trial counsel, defense counsel, and at least five court members. An enlisted accused may request a court composed of at least one-third enlisted personnel. In a general court-martial, the maximum punishments are established by the UCMJ and may include death (for certain offenses), confinement, a dishonorable or bad-conduct discharge for enlisted personnel, a dismissal for officers, or a number of other lesser forms of punishment. A pretrial investigation under Article 32, UCMJ, must be conducted before a case may be referred to a general court-martial, unless waived by the accused.
A special court-martial consists of a military judge, trial counsel (prosecutor), defense counsel, and at least a three-member panel (jury). An enlisted member can request a panel including at least one-third enlisted members. A member can also request trial by military judge alone. There are jurisdictional limits placed on the amount of punishment that can be received at a special court-martial. The maximum confinement is limited to no more than 12-months (or less if the maximum punishment for the charged offense is less than 12-months). The maximum forfeiture of pay is two-thirds basic pay per month for twelve months. The most severe discharge available is a bad conduct discharge. There are also a myriad of lesser punishments available, such as a reprimand. An officer can be tried at a special court-martial.
The Trial Stage
A military trial closely resembles trial in civilian courts. You have certain Constitutionally protected rights, such as the right to defense counsel. There are ordinarily pre-trial hearings with the military judge in which the attorneys settle legal issues. In the military, pre-trial hearings are ordinarily called Article 39(a) sessions. Hearings conducted in the military judge’s chambers are referred to as RCM 802 conferences. Experienced counsel can help you identify the appropriate motions that need to be made in your defense.
During the first Article 39(a) sessions, you will be arraigned. This is simply a process where the accused service member is informed of the charges and is given an opportunity to plead guilty or not guilty.
Like civilian courts, there is a process where your attorneys will select the court member panel, question (voir dire) potential court-martial members, and challenge biased members. You also have a “peremptory” challenge that you can use to remove any member from the panel for any reason.
Following the selection of panel members, there is a trial on the merits where the prosecutors present the government’s case. It is critical to have an experienced lawyer in this stage as you cross-examine witnesses. Your attorneys will also have an opportunity to present witnesses and evidence in your defense. Following the trial on the merits, both sides present closing arguments and the panel members deliberate on their findings.
Clemency and the Appeal
If you are unfortunately found guilty of any offenses, there will be a clemency and appeals process. This firm can help you navigate the clemency process and various means of appeal. Depending on the circumstances of your case, you may have an appeal through the Courts of Criminal Appeals or through the Judge Advocate General of your service. In any case, you need an attorney experienced in military law and the appeals process. Members of this firm are admitted to practice before the Court of Appeals for the Armed Forces. This firm is experienced in appellate matters.
Your Right to an Attorney
How to Obtain Experts
Right to a Speedy Trial
Jury Selection in the Military
Types of Affirmative Defenses
The Military Rules of Evidence
Military Motions Practice
Sex Offender Registration
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All communications are confidential; however, free initial consultations with a military lawyer do not constitute the creation of an attorney-client relationship.