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.
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?
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, policy memorandum. 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 Lieutenants-Colonel and Colonels. 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.
Effective January 2015, R.C.M. 405(a) was amended. The pretrial stage once was known as the Article 32(b) investigation. As of January 2015, this pretrial stage is known as the Article 32(b) hearing. This pretrial hearing is the military’s equivalent of a grand jury, but it differs from a civilian grand jury in many ways. First, there is not a group of people who are listening to and evaluating the prosecution’s evidence to make a probable cause determination; in the military, only one investigating officer is appointed to evaluate the case. As of 2015, if your case is a sexual assault allegation, the hearing officer will be a Judge Advocate and in some branches of service will also be an active duty military judge. Usually this person is a field grade officer; in some commands, they care so little about these hearings that they appoint substandard officers as a form of punishment. Second, unlike the civilian world where a case cannot go forward without a vote from the grand jury (called an indictment), even if the military’s hearing officer recommends dismissal of charges, the command does not have to listen to the recommendation and can still prosecute anyway. Another important change to the Article 32(b) hearing is that the complaining witness does not have to attend for a case to go forward. In fact, the complainant can attend the hearing, listen to the testimony of all other witnesses, and then elect not to testify.
Despite all of the amendments to the rules, the Article 32(b) hearing is a critical stage in your case. When the complainant attends, it is the first opportunity a defense attorney as to cross-examine the alleged victim(s) in your case. The kinds of questions that are posed and the way they are phrased could mean the difference in whether or not your case ever sees the inside of a courtroom. If your case does go forward, a detailed pretrial cross-examination of the alleged victim is often a paramount step in taking apart the government’s case. Even in cases where the complainant does not appear in person to testify, they often testify over the phone. In those cases where the alleged victim refuses to even testify over the phone, there are tactics to consider in calling other witnesses who will contradict the sworn statement of the complainant and then the alleged victim is not there to try to “explain” the contradictions.
You may be considering the approach to “wait and see” how things go at the Article 32(b) hearing before deciding to hire a civilian attorney. Because of how crucial the Article 32(b) hearing is, this approach could prove irreversible to your case.
Maybe, maybe not. Military defense attorneys are often new to the uniform and often new to the law. On most military installations, military defense counsel are far out-numbered by the number of military prosecutors. The military trial defense office can be under-staffed and are typically manned by one or more O-3s, most of whom have little to no prior trial experience. 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-4 or O-5 in a supervisory role over defense attorneys is a regional defense counsel who can be stretched thin over multiple installations. Each trial defense office or area 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 once boasted that the military justice system is far more fair than most civilian systems because of alleged greater protections; none of these protections matter if you are represented by an attorney who does not know how to take full advantage of the protections that remain.
Some accused of crimes under the UCMJ are willing to gamble with the experience level and the workload of the detailed (appointed) military attorney. Others realize that with so much at stake, including military retirement, personal liberty, and for some the risk of sex offender registration, they want to invest in an attorney with a depth of experience, who focuses her efforts on a select number of cases.
Prosecution is a Team-Sport. Local prosecutors, known as “trial counsel” have a number of enlisted paralegals, legalmen, or clerks that work for them. In addition to the “trial counsel”, in the Army there are also brigade judge advocates (now exclusively O-4s) who provide assistance in prosecution. In all branches, 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” or “military justice officer”, usually an O-4 who is the senior prosecutor for the command. Often “chiefs of justice” are steadily supervised by the “deputy staff judge advocate”, who is most often an O-5. The Army has 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. The Air Force created a number of “senior trial counsel” positions and serve as the Army-equivalent of Special Victim Prosecutors. Although the Navy, Marine Corps, and Coast Guard have not adopted the same program, they are increasing the training budgets and have created additional billets for senior prosecutors. The Marine Corps has even created a regional trial counsel position to provide additional expertise and supervision for prosecuting attorneys. 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.
It depends. Military courts are able to prosecute military members who are currently serving on active duty, students of the service academies, reserve component while on inactive training, members of the National Guard when in Title 10 status, those who are serving prison sentences in military prison from previous military convictions, those who have retired from service, and other less common categories. See Article 2, UCMJ.
If you are accused of sexual assault, there is a high likelihood that the military will prosecute you. Even when the local civilian district attorneys conclude they do not have sufficient evidence, the military’s renewed emphasis on sexual assault prosecution leads them to prosecute cases even without physical evidence or other corroboration.
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.