So How Serious is it?
Often service members are confronted with charges, and are told that it is a “simple” urinalysis, a small value larceny or short period of unauthorized absence. At a special court-martial, each of these offenses could result in confinement for a year and a bad conduct discharge. For any service member who has invested more than a few years in the service, a conviction as such a forum means the termination of a career and potentially the end of any possibility to reenlist.
As the nature and seriousness of the charges increase, and the level of the court-martial rises to a general court, then the potential downside can include years of confinement, loss of all pay and allowances, and a dishonorable discharge. This is the equivalent of a serious felony, and includes negative impact on basic rights such as the right to reside where you want to, prohibitions on the ownership of firearms, lasting impact on the ability to obtain meaningful employment and financing from credit institutions.
The consequences are potentially long term and severe. There is no such thing as a “simple” case.
Isn’t it Hopeless?
One of the most erroneous beliefs about the military justice system is that it is rigged against the accused, and that the outcome is predetermined before it ever goes to court. This is not the case. The military justice system has significant procedural and evidentiary safeguards that, in the hands of a skilled attorney, can be used to dramatically alter the outcome of your case.
Often cases that appear headed to certain confinement and discharge can be derailed because of the merits of yours case, the merits of your prior service, and the availability of evidence and witnesses. Commanding Officers have been wide discretion under the UCMJ to negotiate and to dispose of cases at levels short of a court-martial. A skilled attorney can work early to uncover the facts, meet with the convening authority, and potential derail the case before it arrives at a court.
Even at court, the result is not predetermined. The potential range of outcomes in the hands of a skilled attorney include complete acquittal on the charges; findings of lesser offenses with dramatically less serious punishments; or a the presentation of a sentencing case focused on your life that dramatically offsets the negative effects of the offenses.
The only time that a case becomes hopeless is when you surrender to hopelessness. Now is the time to act, not give in.
Shouldn’t I just wait and see what is happening?
Your options begin to narrow with each step of the investigating and trial process. At the onset, the government is going to seek to talk to you—and before they do so, are required by law to tell you that you have the right to remain silent and to talk to an attorney before questioning. That is the moment where talking is perhaps the most important. DO NOT WAIT!
As the investigation proceeds toward charging, the government is expending time and resources gathering evidence against you. As time progresses and more expenditures are made, their motivation to negotiate and deal with you decreases. Often, moving immediately into discussions with them may shorten the process and avoid a more serious outcome. Without the assistance of a skilled attorney, you have no voice in this process.
As the case moves toward charging and trial, evidence in your case grows increasingly colder and more difficult to access. Witness memories fade, people deploy or get out of the service, the environment where the allegations occurred is altered and precious opportunities to prepare are lost. The sooner your attorney begins to work the case, the better will be your attorney’s ability to represent you and obtain the best result.
One important stage where a skilled attorney can be of great assistance is at the Article 32 investigation. At this point, the government is required to “show its hand” to an impartial officer, and required to produce evidence and witnesses under government control for examination and inspection. The defense also can present evidence, and can engage in extensive depositions of government witnesses in a hearing that is recorded and made part of the record.
A skilled civilian attorney can come onto the case at any stage. The earlier, the better for the preservation of your rights and the presentation of your case.
But I have a military lawyer already. Do I need a civilian lawyer?
Most military defense counsels are young, dedicated and intelligent men and women who have dedicated themselves to the service of their country and the practice of law. They are hard working and conscientious, and seek your best interests. They are, however, subject to some significant limitations that may impact on your case:
First, they are young and inexperienced. Frequently they are in their first tour of service in the military after law school, and are in their first year of providing defense services. Like other service members, they are subject to deployment in operational billets and will likely rotate through several different jobs during their first three years. They have access to more experienced senior defense counsel or regional defense counsel, but often their access is limited by these senior officer’s personal case loads and administrative burdens.
Second, they are carrying large case loads. Especially in locations with a high volume of cases, these young attorneys are representing a large number of clients with a wide variety of problems and potential outcomes. Like many public defenders, they are required to “triage” to determine the most serious, the closest in time, and the best likely to benefit from extra time. This has a large impact on the amount of time that they can spend both preparing the case and working directly with you in answering your questions.
Third, they are limited by specific rules that control when they are permitted to form an attorney client relationship with you and begin to act as your attorney in the case. In the case of nonjudicial punishment and administrative separation counseling, they initially can only explain your rights. If you are subject to an interrogation, they can advise of your right to remain silent and encourage you not to speak, but cannot represent you further. They are not permitted to begin representation before you are put in pretrial confinement or charges are preferred against you. A civilian attorney has not such limitations.
Finally, even if you retain a civilian attorney, you also keep your military lawyer. As a member of the defense team, these young, eager, and intelligent attorneys become an important asset working with a skilled civilian practitioner to prepare and present your case.
You will never be at this point with these options again. Now is the time to act.
Contact me. Now.
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