Court-Martial Military Defense Lawyer
CANNON & ASSOCIATES is dedicated to Fierce Advocacy for service members in Court-Martial proceedings. Court-Martial is comparable to a federal criminal trial; however, the distinct process and elements require experience beyond state or federal criminal court to understand and navigate. Not only your career, but your freedom and reputation depend on the outcome of the process. It is crucial you contact an experienced military criminal defense attorney upon notification of the potential for Court-Martial proceedings in your case. Contact CANNON & ASSOCIATES, PLLC now to receive a free consultation on your case.
COURT MARTIAL BASICS
There are three types of Court-Martial: Summary Court-Martial (“SCM”); Special Court-Martial (“SPCM”); and General Court-Martial (“GCM”), which are employed by all service branches to address alleged military criminal activity. Additionally, all Court-Martial proceedings are governed by military specific law, including: Uniform Code of Military Justice (“UCMJ”); the Military Rules of Evidence (“MRE”); the Rules for Court-Martial (“RCM”); and other administrative rules of both substance and procedure. Although, ever Court-Martial has similar attributes, the three levels of Court-Martial are distinct and warrant discussion:
Summary Court-Martial (“SCM”)
The SCM is the lowest level Court-Martial, which is designed to deal with minor offenses or infractions that warrant more punishment than nonjudicial punishment (“NJP”). One officer acts as judge, prosecutor, and defense attorney and is required to impartially consider all the evidence and material available to reach a just result with respect to the service member and the command or government. Detailed military defense counsel, trial defense services, are generally not detailed in SCM proceedings; however a service member at their own expense may retain private counsel to assist them in the process and defend their case. A service member has the right to deny trial by SCM, just as in an Article 15; however, the result may be referral to a SPCM or GCM, which has harsher punishment potentials.
The service member may present evidence/witnesses, testify under oath or remain silent and address motions to the officer over the SCM. If convicted, in the sentencing phase the service member may testify or remain silent and present matters in extenuation and/or mitigation. The maximum punishment at a SCM is as follows:
E-5 and above:
- Reduction of one pay grade
- Forfeiture of two-thirds pay for one month
- Restriction for sixty days
For E-4 and below:
- Reduction to E-1
- Forfeiture of two-thirds pay for one month
- Confinement for thirty days, hard labor without confinement for forty-five days, or restriction for sixty days
Special Court-Martial (“SPCM”)
The SPCM is the middle level Court-Martial, which is designed to handle serious military specific infractions and minor criminal conduct, which is too serious to be handled by a SCM. The SPCM is heard by a panel of three members consisting of three commissioned officer, unless the service member is enlisted and elects for an enlisted member on the panel. Additionally, the service member may elect for trial by judge alone. The financial implications in a SPCM are greater; bad conduct discharge is a potential, with career and personal implications; and confinement is an option for the commander. It is essential to consult with experienced military criminal defense counsel prior to entering SPCM proceedings. A service member facing a SPCM is potentially subject to the following punishment:
- Reduction to E-1
- Confinement (incarceration) for twelve months
- Bad Conduct Discharge (“BCD”)
- Forfeiture of two-thirds pay for twelve months
The GCM is the most serious Court-Martial, which is reserved for the equivalent of felony offenses in civilian criminal court or the most serious military specific offenses. A GCM is heard by a panel of five commissioned officer members, unless the service member is enlisted and elects for an enlisted member on the panel, in which case at least one-third of the members must be enlisted. Additionally, as in the SPCM, the service member may elect to be tried by military judge alone. A service member’s potential punishment in a GCM is dictated by the Charges and Specifications of the Court-Martial and may range from a short period of confinement to life in prison without the possibility of parole or even death in capital cases. Every offense in a GCM carries specific punishments, which necessitate the assistance of military defense counsel. A service member facing a GCM is potentially subject to the following punishment:
- Reduction to E-1 (enlisted only)
- Confinement for life without the possibility of parole
- Death, in capital cases
- Dishonorable Discharge
- Unlimited fine amount
PRIOR TO COURT-MARTIAL
A law enforcement investigation by the service specific investigative agency, such as CID, is completed and presented to the chain of command for the service member. The command will consult with the military justice JAG team, i.e. trial counsel, prosecutor, government counsel, and decide on the proper course of action, including: NJP, Adverse Administrate Action, Administrative Discharge, or Court-Martial.
If the commander decides Court-Martial is the appropriate course of action, he or she will “prefer” charges against the member, which is the formal notification by the command to the service member that the command believes the charges are accurate and notifies the service member of the initiation of the Court-Martial procedure. The procedure after preferral is determined by the type of Court-Martial.
SPC Procedure is the fastest process. Court-Martial is conveyed when the designated officer, Convening Authority, appoints members and refers the charges to trial by Court-Martial. The accused can be tried after a three-day waiting period. The expedited nature of the process necessitates immediate action in contacting military defense counsel for assistance.
GCM’s carry greater penalties and therefore provide service members greater rights prior to the imposition of punishment. Prior to conducting a GCM an Article 32 hearing must be held by an impartial Investigating Officer, appointed by the Convening Authority. The Investigating Officer must determine, similar to a magistrate judge in a criminal case, whether reasonable grounds exist to believe an offense has occurred and the accused committed it; whether the charges are in the proper form; and the appropriate level of disposition in the case. In an Article 32 hearing the accused has a variety of rights, comparable to state and federal court criminal proceedings, including:
- Informed of charges
- Informed of complainant/accuser
- Presence during evidence presentment, except limited circumstances
- Informed of witness and evidence presented
- Right from self-incrimination
- Cross examination of all testifying witnesses
- Production of witnesses
- Production of evidence within military control
- Present defenses, extenuation evidence, and mitigation evidence
Upon conclusion of the Article 32 hearing, the Investigating Officer makes recommendations to the Convening Authority, which are not binding on the Convening Authority. The accused may be tried by GCM, if the Convening Authority refers the case to GCM; however, the Convening Authority may also dismiss any charge, specification, or the case as a whole. Upon notice of referral to GCM, the trial may commence as soon as five days later. The expedited nature of the process and multitude of procedural elements necessitates immediate action in contacting military defense counsel for assistance.
Trial in a GCM is very similar to federal criminal trial; however, there are multiple nuances, which must be understood and followed. Before the presentation of evidence, the military judge and counsel will confer and reach a resolution on motions and matters of law, which can significantly impact the outcome of the case. Then the accused enters his or her plea prior to the case commencing before the judge or panel. Upon a guilty plea, the judge will ensure the plea(s) is knowingly and voluntarily entered and the accused is providence to the specifications and stipulations of fact. Upon a not guilty plea, the “findings” or guilt v. innocence phase of the Court-Martial begins. The findings phase in a military Court-Martial is similar to state or federal criminal trial; however, the accused can be convicted by two-thirds vote of the members on any offense, unlike civilian criminal trial, which requires a unanimous verdict in order to find the accused guilty. Sentencing and punishment immediately follow a sentence of guilty on any specification or charge. The list of rights of an accused service member mirrors the rights in an Article 32 hearing with the addition of the following: dispute points of law, Discovery process to learn of prosecution’s evidence, and others.
John Cannon, owner of CANNON & ASSOCIATES, PLLC, is a JAG attorney and has experience defending and prosecuting a multitude of military criminal cases. John has been honored by being identified as a Top 40 under 40 in Criminal Defense by the National Trial Lawyers Association. John has the experience and will bring it to bear in your case. Additionally, he has an outstanding record of reaching the best possible outcome for hundreds of clients accused of the wide variety of military charges, evidenced by receiving the highest possible AVVO rating – 10 (superb). Contact CANNON & ASSOCIATES to protect your freedom, your future, and your story. You may send an email inquiry, complete the contact form on the website, or call at 405-657-2323.