Winning Your Court Martial is Easier Than You Might Think
The chances of getting an acquittal at a court-martial are higher than almost any other American courtroom today. There are many reasons for this, but most cases are lost because of poor investigations, poor prosecution, and command abuse. Of course, the best way to capitalize on these inadequacies is to have the best defense possible.
I have worked on hundreds of courts-martial, and almost every case had significant gaps in the investigation. Army’s CID, Navy’s NCIS, and Air Force’s OSI have regulations limiting their investigative jurisdiction to limited types of crimes. This is for good reason. These agencies are overwhelmed with their scope of responsibility in the war of terror. Their main mission is counter-terrorism. Criminal Investigations is generally the job for the second string, those on probation, and those just returning from deployment. Each detachment usually has an experienced agent, but most investigations are run by agents only a few years out of their agent tech school. Those young agents have investigated only a handful of cases. Many of the case agents don’t have college degrees or previous training in criminal justice. Unlike the FBI, these agents don’t work for the prosecutors, they work for other investigators. They call their own shots, and that’s a major advantage to the Accused.
Even in cases in which the investigators get a partial confession from the Accused or lock in on key evidence, the inexperience and incompleteness of investigation may lead to an acquittal. One of the most effective defense strategies is to focus on what the investigators missed. You see, experienced detectives in even the smallest towns know how to fill in the gaps, cross their t’s and dot their i’s. But, in the military, more often than not, an experienced defense attorney will be able to easily find the witnesses the investigators didn’t talk to, the evidence that wasn’t dusted for prints or DNA run on, and the errors in paperwork. In truth, often the simple fact that the investigators missed these important steps is enough ammunition for the cross-examination and often leads to a finding of not guilty.
There are talented lawyers in the military that are capable of some of the finest legal work. Fortunately for an accused, these attorneys are the exception and are generally not involved in the early stages of a case. The quality of prosecutor matters because they are responsible for deciding what witnesses and evidence are important to the proof of their case. The most common error by prosecutors is failing to present enough witnesses. Although there may have been three witnesses to a fight, an inexperienced prosecutor will only bring one witness. A good defense attorney will then be able to capitalize on lack of perspectives to cast reasonable doubt on the whole case. Usually, these prosecutors won’t realize the issue before it’s too late. You may think a defense attorney is paid to talk… but sometimes the best attorneys know the value in keeping quiet.
Even if you are convicted, the Government generally does a very poor job in justifying is often ludicrous sentence requests. Many prosecutors and defense attorneys overlook the sentencing phase of trial. In fact, even most of the highest paid civilian defense counsels ignore sentencing, leaving that up to the appointed defense counsel. In my experience, I have learned that there are effective and some very ineffective ways to convince a jury that even though you did wrong, a long jail sentence or discharge from the military is not justified. I think the number-one strategy is to demonstrate previous outstanding military performance. How you present this evidence and other strategies is something I specialize in and will be glad to discuss with you one-on-one. Ask your appointed military defense counsel their plan for your sentencing case, then call me – I guarantee it won’t be the same!
Command abuse comes in all shapes and styles. For anyone facing court-martial, I am sure you know how the upper channels of the military shift their focus and make your every living-breathing-moment a nightmare because they have already decided you are guilty. How command treats you leading up to court-martial is something a good defense attorney can help with, and something that I write about. However, the command abuse I am discussing today deals with how high level JAGs convince commanders to make irrational and ineffective decisions regarding military justice.
Most recently, the military has become totally carried away with its prosecution of sexual assault cases without regard for the facts. As a former sexual assault prosecutor, I know how important it is to protect women from violence and punish those that offend; however, it is even more important to protect the innocent from false allegations. The cases of false allegations or cases with clearly inadequate facts are taken to trial anyways. That’s because no JAG and no commander want to be accused of “killing” a case in which the alleged victim later complains about. Civilian prosecutors decide not to prosecute these cases all the time, but the highest ranks in the military have created an atmosphere of fear. In fact, often the military prosecutes cases the local civilians declined to prosecute.
Prosecuting to prove a point, or to CYA applies to almost every case, not just sexual assault cases. In the Air Force the highest JAG general has sought to increase litigation to give young JAGs more experience in the courtroom. One-time drug cases are brought to court-martial for no logical reason. Cases can take over a year to get to trial without justification. The list can go on and on for conduct that totally disregards the best interests of justice.
What can your defense counsel do about it? An experienced defense counsel can take two approaches. The judge, and jury. The military judge is obligated to follow the law made by the highest military appellate court. This court has traditionally not permitted abuses toward a military accused. A good military defense attorney won’t be shy to file motions regarding unlawful command influence, abusive prosecution, or maltreatment before trial. Even if command was within the four-corners and the judge doesn’t grant relief, juries often don’t tolerate the abuses of command. I have defended cases where the evidence was overwhelming that the Accused was guilty, but because of command abuses the jury found the Accused not guilty anyways. Remember, your appointed military defense counsel will still have to work at your base and interact with your commanders after your trial — do you really feel confident they will be as adversarial as you need them to prove the injustices against you?
I have just started to scratch the surface on how to win your court-martial. When you call me, we can talk about how I can capitalize on the specific facts of your case to ensure the best chance at victory. Your court-martial is like getting cancer, you get only one chance to beat it, and you want the best to cure it.