It depends. Did your alleged conduct occur before 27 December 2014? If your alleged misconduct occurred prior to 27 December 2014 and you waive your Article 32(b), you could be waiving a potential constitutional issue. Effective 27 December 2014, some of the most recent amendments to the UCMJ state that anyone who has an Article 32(b) hearing after 27 December 2014 will have an Article 32(b) hearing with very limited rights. However, because Congress is impacting military accused that have allegations that arose before the effective date of the amendment, there is a possibility that the amendment may be found unconstitutional. If you waive your Article 32(b) and your attorney does not raise the issue, you will waive the issue on appeal (in the event that you are found guilty of any offense).
Before deciding to waive your Article 32(b), get a second opinion from an experienced court-martial defense lawyer.
Waiting to hire a civilian attorney until after the Article 32(b) hearing is potentially a dangerous way to cut costs. The Article 32(b) hearing is a crucial step in strategy for trial. The foundation of the cross-examinations to be made at trial comes from the questions asked during the Article 32(b) hearing. Ms. Stewart has agreed to be hired on cases after the Article 32(b) hearing, but inevitably she is disappointed in questions that were not asked, witnesses who were not called to testify, and by evidence not made available as part of the Article 32(b) hearing. The Article 32(b) sets the stage for the trial, and treating that hearing as unimportant has the potential to damage your case at trial. Additionally, although rare, there are instances when charges can be dismissed after the Article 32(b) hearing. Making poor tactical decisions can actually result in the addition of charges after the Article 32(b) hearing. Hiring an experienced civilian attorney who specializes in military court-martial defense earlier, rather than later, can make an enormous impact on the result of your case.
A Special Victim Prosecutor is a military lawyer who has been assigned to prosecute all “special victim” cases in their area of responsibility. A “special victim” case is one that involves an allegation of sexual assault on an adult or a child, an allegation of domestic violence or physical abuse of a child, or allegations surrounding child exploitation or pornography. The Army created the SVP program in the summer of 2009 with 15 positions designated worldwide. That first summer, only seven positions were filled. In the summer of 2010, with the addition of eight more attorneys, all 15 positions were occupied. By the summer of 2012, The Judge Advocate General of the Army designated an additional eight slots, bringing the number of SVPs to 23. Since that time, the Air Force has created its own system but calls their specially trained attorneys “Senior Trial Counsel” and dispatches its STCs regionally to prosecute cases on the various Air Force bases.
In order to serve as an Army SVP, each is required to go through the Career Prosecutor’s Course, the Military Institute on the Prosecution of Sexual Violence / Effective Strategies for Sexual Assault Prosecution, and a civilian internship with a Special Victim Unit. Army SVPs are selected based on courtroom experience and supervisory recommendations.
Yes. In fact, effective 28 June 2012 the UCMJ amended its sexual assault statute yet again and created even more types of offenses to charge military members and make them registered sex offenders. One of the major expansions of Article 120 is that now if the complaining witness alleges that she or he was touched in a sexual or degrading manner ON ANY PART OF THEIR BODY, and you are convicted, you will have to register as a sexual offender. Formerly, the law stated that only if certain body parts were touched, such as the breast, buttocks, inner thigh, etc., but under these most recent changes, even the arm, back, or ear could technically qualify.
The facts and circumstances of every case are unique. Unfortunately sometimes the opinion one lawyer gives you is based on their own internal biases and insecurities; if a lawyer is inexperienced in trial work, he or she may be afraid to go to court and contest the charges. A less experienced lawyer may be more likely to steer you toward pleading guilty. Like any medical diagnosis, it is always best to get a second opinion. Our firm offers a free initial consultation to help you evaluate the case against you. Before you commit to a course of action that you are unsure about, take advantage and solicit an experienced free opinion.
Free military defense attorneys are often new to the uniform and new to the law. On most military installations, military defense counsel are far out-numbered by the number of military prosecutors. The military defense office, on the other hand, is under-staffed with O-3s, most who have no prior trial experience whatsoever. Even though they are O-3s, many of them have only been in uniform, much less attorneys, for only a few years. The senior attorney who supervises each office often has never been a defense attorney before. The only O-5 in a supervisory role over defense attorneys is a regional defense counsel who is stretched thin over multiple installations. Each military defense office is reliant on the government for its day-to-day budget, office supplies, and even training funds.
With the resources and personnel so skewed against the military trial defense office, it becomes even more important that the service members’ lawyer be more experienced and knowledgeable about the military justice system. Many commentators boast that the military justice system is far more fair than most civilian systems because of alleged greater protections; none of these protections matters if you are represented by an attorney who does not know how to take full advantage of these protections.
You should be up-front and confront the issue head on: ask the military lawyer a series of questions to find out exactly how much experience they have.
Some suggested questions are:
1. How long have you been a licensed attorney?
2. How long have you been a JAG?
3. How long have you practiced criminal law?
4. How long have you practiced criminal law in the military?
5. How many courts-martial have you tried?
6. How many of those courts-martial were contested (where the accused person pleaded not guilty)?
7. How many of your courts-martial were just guilty pleas?
8. How many of your courts-martial were you the lead counsel?
9. How many of your courts-martial were you the second chair?
10. Of the cases that you took to trial, how many did you win?
Military lawyers often boast about their level of experience without any real proof. The Army has created a tracking system to categorize their lawyers by classification. This classification scheme is known as ASI or Additional Skills Identifier for military justice. An attorney’s ASI is a direct reflection of the number of years they have spent in court-martial practice, the number of total cases tried including a distinction between those they tried as the lead counsel versus those they sat second-chair, and how many cases were contested versus guilty pleas in addition to how many trainings they have undergone. There are four possible classifications, ASI1, ASI2, ASI3, and ASI4. For more details about the ASI system, please click here. Ms. Stewart was awarded ASI3 as a captain in December 2009. Please note that Ms. Stewart was not able to achieve ASI4 prior to leaving active duty because there is a requirement to serve in one or more positions, which are all relegated to those who are O-5 and O-6. Proof of Ms. Stewart’s ASI is here. ASI certification is also located on the attorney’s ORB. Don’t be afraid to ask your military attorney for proof of their ASI. Be wary of a military attorney who tells you that they “haven’t bothered to apply.” Military practitioners who are serious about practicing criminal law will have applied, assuming they meet the minimum requirements for at least ASI1.
The Navy has developed a criminal justice tract for its judge advocates, which requires a certain level of experience and acceptance into the continued practice of military justice. Ask your appointed Navy or Marine Corps attorney if they have been accepted to the military justice tract or if they are making plans to apply.
A better question might be: can you afford not to hire a civilian attorney? The prosecutor’s office is sparing no expense to put you behind bars. Every branch of service is pouring funding into training its prosecutors to achieve a better conviction rate. Prosecution is also a team-sport: in addition to the local base prosecutor, known as “trial counsel”,nearly every jurisdiction also has a “senior trial counsel” who assists the “trial counsel” in prosecuting. Beyond the “senior trial counsel” is the “chief of military justice”, usually an O-4 (although in some cases they are a senior O-3 or even an O-5 who is the senior prosecutor for the command. Often “chiefs of justice” are steadily supervised by the “deputy staff judge advocate”, that is most often an O-5. The Army and the Air Force have created a new position known as the Special Victim Prosecutor (SVP) as a response to negative attention sexual assault has had from Congress and the media. Early indications are that the other services will be required to create their own version of the SVP to address Congressional concerns. The budget for sexual assault prosecution is seemingly limitless; the military is going to great lengths to appease the concerns of Congress that the military takes seriously the “epidemic” of sexual assault.
Our firm does not require that the entirety of the legal fees be paid up front. For more information on fees, click here.
Your best chance to beat the SVP is to hire the ONLY former Army SVP to defend you, Ms. Stewart.
In order to confront the government’s resources, including their specially trained prosecutors, it is vital to hire an attorney who has the same or more experience and training. Often a trial is won or lost long before the first panel member is selected; motions practice before trial establishes the evidence that is admissible and the arguments to be made. In allegations of sexual assault, motions about the prior sexual history of the complaining witness will win or lose the case. Keeping up on military case law to ensure that defense attorneys are leveraging the latest rulings can prove pivotal. Ms. Stewart keeps her practice to a limited number of cases so that she can be up-to-date to be as effective as possible for her clients.
Contact Ms. Stewart, a former SVP, who knows how to defend cases against SVPs.
No. The Chief of the Army Trial Defense Service declined to have a parallel program to defend “special victim” cases. All TDS lawyers receive training in defending sexual assault allegations, but no TDS lawyers are designated to only defend sexual assault allegations.
Contact Ms. Stewart to speak with an attorney with a special focus.
A summary court-martial is presided over by one commissioned officer to “promptly adjudicate minor offenses under a simple procedure”. See RCM 1301. Typically, a person who is subject to a summary court-martial is not represented by an attorney during the proceedings but is entitled to speak to an attorney for guidance and advice prior to the proceedings. Generally, a conviction at a court-martial is not a reportable conviction. Punishment maximums vary by the rank of the accused person but no person can be confined for longer than thirty days. Similar to non-judicial punishment, the accused person does not have to “accept” trial by summary court-martial and may demand trial by court-martial instead. If the accused person elects trial by court-martial, they do not get to choose which type of greater jurisdiction their case will be.
A special court-martial authorized to give a bad conduct discharge (BCD) is composed of a military judge with or without at least three jury members (known as panel members). No matter what the charges, at a special court-martial the maximum punishment allowed is reduction to E-1, forfeiture of 2/3 pay, confinement for 1 year, and a BCD. A conviction at a special court-martial will translate to an actual federal conviction; it will depend on the state as to whether or not it is considered a felony conviction because in some states the criteria for a felony is if the person was facing more than one year. In other states, the line between felony and misdemeanor is drawn as a misdemeanor when the person was facing less than one year in confinement.
A general court-martial (GCM) is the highest level of court-martial under the UCMJ. A GCM is composed of a military judge and at least five jury members (known as panel members). The maximum punishment possible at a GCM will depend on the individual charges and will be the total punishment when adding each charge’s individual maximum punishment. Every case that will be a GCM will have a pretrial Article 32(b) hearings.
Being a former service member herself and working exclusively on military cases, Ms. Stewart has amassed experience to help in the following areas of the UCMJ:
When faced with the decision of hiring a UCMJ specialist, Ms. Stewart’s former clients explain all that is necessary about her commitment to their case and her expertise in handling the toughest legal battles. Learn more about her unique abilities in the words of her clients, peers, and military judges.