If you are a military member and you get into trouble, you are generally entitled to be represented by an active duty JAG as your defense attorney. You are also allowed to hire a civilian defense counsel. If you hire a civilian defense counsel, you generally have the option of either keeping your active duty defense counsel on your defense team or dismissing them.
An active duty defense counsel gets assigned to help you through a court-martial, Article 15 (non-judicial punishment), or involuntary separation action. An active duty defense counsel may also represent you on smaller adverse actions, including a poor performance report, a letter of reprimand, a promotion delay action, and an administrative demotion action, to name just a few.
So why might a military member want to hire a civilian defense counsel? As a JAG, active duty defense attorneys are likely smart and hardworking (but there are exceptions). More importantly, however, like all attorneys they may be very experienced, very inexperienced, or anywhere in-between. If you do your research and hire a civilian with a track record, then you know you have experience working for you. And that helps maximize your chances. Further, just like with a public defender, your active duty defense attorney works with the same prosecutors and the same command chain at your base all the time. This means that they sometimes have to pick and choose when and for which clients they can be super aggressive for - because they do need to maintain a good relationship with commanders and prosecutors. A civilian defense attorney has no such issues.
Remember, by adding a civilian defense counsel in a UCMJ or other adverse action, then you still have the choice of keeping your active duty JAG as well. This creates a defense team who can work together. This can have loads of benefits – and not just double the resources, double the manpower, and double brainpower. You get diverse attorneys who can edit each other’s work and ideas, which often leads to a better product. Think O.J. Plus, your active duty JAG may have deeper insights into some specific local tendencies and personalities, while your civilian defense counsel has more litigation and courtroom experience.
If you are ever in a situation where your military career or even your life or liberty are at stake, you may want to speak to a civilian defense counsel before going it alone with your military defense counsel. The consult is generally free and it should lay out your options so at least you make an informed decision.
Imagine this – you are suspected of a crime in the military and things are headed for an Article 15 or even a court-martial. It happens to people all the time. A urinalysis test come back hot. A person reports being the victim of a sexual assault. Money goes missing from the office snack fund. For certain cases, like a DUI, the investigation might start and stop with you right there. But for most cases, things start rolling well before the subject is even aware anything is going on.
How does a criminal investigation start? Usually a complaint is made to the local CID / NCIS / OSI. Perhaps that is an assault or theft victim voicing a complaint, perhaps it is the drug lab reporting a positive urine test. Once a case is opened, however, guess what – the accused is not immediately brought in for his or her side of the story. The investigators were not born yesterday. They know to get their ducks in a row before the big interrogation. They know they have a much better shot at a confession if they have the upper hand on knowing all the facts – and they already have the upper hand in knowing powerful interrogation techniques.
Do not underestimate this: no matter how they come across or what they say, the investigator is looking for a confession. That is how they get their performance bullets and high-fives. An interrogation ending in a denial or the subject “lawyering up” is a failure. A confession is a win. At least in general. And a confession or any kind of statement made at this stage of the game can be devastating for your defense case – a total admission can seal a conviction right there. Even small statements can seriously hurt your case. And this is whether you are truly guilty or truly innocent.
How do you protect yourself? If you ever find yourself in a situation where someone reads you your rights, always consider these points:
1. Silence. It’s golden. At least in most cases. While making an immediate statement might be the right call, that’s a rarity. You have the absolute right to keep your mouth shut – and every criminal defense attorney will tell you this is the best default advice. Come back to the cops later to make a statement after you talk to a lawyer if that makes sense.
2. Ask for a lawyer. By clearly and unequivocally stating “I want a lawyer” the investigators have to stop questioning you. It’s the key phrase to take off the pressure. Say those words and don’t second guess it, if you want a chance to think and get expert advice before locking yourself in.
3. Investigators manipulate their subjects. They start off by being buddy-buddy with you. They talk about the game. Or the news. Or whatever other small chit chat for a while before then slipping in “these rights advisements are just a technicality but we need to read them, you have the right to remain silent . . .” and then they get back to small talk. They want their subjects to get used to talking and feel comfortable. They want to pretend they are your friend. You don’t notice it’s an interrogation most times. They eventually work in how much evidence exists against you and how they are ready to go to bat for you with the command if you cooperate, and if you don’t cooperate you are toast. Well, nothing could be further from the truth in most situations – confessions and admissions are what toasts most suspects.
4. Investigators can even lie to you. They can tell you they have your DNA, or a video of you doing it, or 100 witnesses against you, even though every single line is a bald-faced lie. Their trick is to make their subject feel so helpless that the only rational choice for the subject in his or her mind is to plead for mercy with the investigator and confess all their sins. These techniques are so powerful that they have been proven to coerce false confessions from totally innocent people. One of the more famous examples was the Central Park Five.
5. Stand up for yourself. In these situations, a subject is at an extreme informational disadvantage. It’s unfair. Stand up for yourself and ask for a lawyer so that you can get on an even playing field. Maybe making a statement is the best option. Maybe you have nothing to hide. You don’t lose anything by asking for a lawyer, which will result in you getting all the facts about what is going on. Then, if it makes sense, provide your statement under fair conditions to the investigators. Or not, and invoke your right to remain silent if a statement would hurt you.
First Amendment to the Constitution --
"No person shall be . . . compelled in any criminal case to be a witness against himself."
Article 31, U.C.M.J. --
"(a) No person subject to this chapter may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.
(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence in not material to the issue and may tend to degrade him.
(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial."
“The case against Clevinger was open and shut. The only thing missing was something to charge him with.” Catch-22 by Joseph Heller.
While satirical, with this quote Heller brought attention to the concern that the military did not always dole out justice in righteous ways. And there was plenty of real life, legitimate outrage after World War II on this subject, which helped herald the creation of the Uniform Code of Military Justice.
But even today with the UCMJ, the tension between military necessity versus a fair trial creates debate. Military courts are not a separate body in the way an Article III court or state court is. While they have a tremendous amount of independence and power, a military court is still an entity inside the military. The commander who convenes the court, as well as military judges, military prosecutors, military defense counsel and military juries still all work for the same person (albeit far up the command chain).
Experienced military counsel will tell you that this generally works, although recently some of the safety measures originally placed in the UCMJ have been removed for political reasons. And that is bad. But, the system is tested sometimes to the breaking point when dealing with tough cases. The Bowe Bergdahl case is a great current example. And good for his defense attorneys for pressing the issue.
General Robert Abrams was the commander who decided to send Bergdahl to a court-martial, despite the fact that Bergdahl spent five years as a POW to the Taliban under incredibly severe conditions and despite the fact that his Article 32 hearing officer recommended a lesser form of punishment. That decision was for General Abrams to make – or was it? Before General Abrams made the decision to send the case to a court, Senator John McCain very publicly stated that he would hold congressional hearings if the case did not go to a court-martial. So, General Abrams was faced with at least the appearance of a political problem – if he chose not to send the case to a court then he would personally face a hearing before Congress where he would be cross-examined on a national stage, complete with congressional grandstanding. Oh, and not to mention McCain sits on the Senate Armed Services Committee and has as much control as any regarding which generals get confirmed by the Senate for promotions and job assignments. If General Abrams failed to send this case to a court – even if he truly in his heart knew that it was an unfair decision – what would happen to his career?
Perhaps, as he testified, General Abrams would have made the same decision without McCain’s threats. Or perhaps not. It sure seems like a politician made the decision for General Abrams. That perception alone points to a major flaw in the system, and is a reason to commend defense counsel who are brave enough to stand up to the powers that be.
This is a really thought-provoking piece about military justice. It explains the longstanding issue of relaxing military entry standards as a war drags on and the need for bodies to fill boots increases. As standards decrease, people less fit (or unfit) are nevertheless accepted into the military. There should be no surprise that crime and misconduct then rise. As season 2 of Serial pointed out, Bowe Bergdahl may be such an example - he washed out of Coast Guard basic training for a mental health breakdown only to be later let into the Army when they were desperate for soldiers in Afghanistan. Not much of a surprise that he goes off and does something crazy. And the military justice system then has to sort things out.
During the time of the draft, the results could be wildly unfair. The government relaxed its standards and forced unfit people into the military, then proceeded to court-martial them when they fail. With our post-draft era, the fairness factor has eased a bit because at least now unfit folks are agreeing to the arrangement.
But how should a court-martial panel, or the military in general, or even the United States population in general, treat a person who commits a crime under the UCMJ - perhaps even a heinous crime - when you factor in not only circumstances such as combat fatigue and post traumatic stress disorder, but also a pre-existing mental health issue that should have barred the person's entry into service? Especially if the military knew when they accepted this person into their ranks that he or she had a mental health condition and that the condition increased the risk that this person would not be able to handle combat stresses?
Where does blame really fall here? Isn't there a lot of it to go around? How harshly do we treat this type of criminal? That's a really tough call. And while this problem has been around forever, it is an important issue to consider - and consider very carefully - with all the proposed changes to the UCMJ in the works. Taking sentencing power away from a military jury and vesting it solely in the hands of a military judge, for instance, could be devastating in these types of cases because juries in general will be more likely to look at the entire picture and give a fair result than a hardened, government-appointed judge. Even worse, sentencing guidelines and mandatory minimum sentences imposed by law that give neither judge nor jury the ability to use discretion in a case could result in massively unfair results. Especially now that Congress has already cut out the convening authority's ability to grant clemency (reduce a sentence) after most courts-martial.
Bright lines and generalizations make for good politics but oftentimes bad results. Considering the amounts of rights and liberties waived by a service member when they choose to go into the military and subject themselves to the UCMJ, our country should at least give those empowered with doling out justice in a court-martial the ability to use their discretion in determining a fair sentence. No one other than those in the court-martial will see, hear or fully understand all the circumstances in any one individual case.
Good for the ABA to advise Congress to tone down the rhetoric and put down the pitchforks before finalizing changes to the UCMJ.
The imposition of mandatory minimum sentences is dangerous to the rights of our service members. So is withholding a service member's right to request a military panel (jury) to decide a sentence rather than a military judge.
The dangers of statutory mandatory minimum sentences have been well-documented, especially in recent years. Every case is different, and to legislate otherwise to take away judgment calls in an individual court is not justice. At any given court, the judge and the jury are far, far more able to fairly judge what the outcome of the case should be - for Congress to brazenly institute mandatory minimums serves only to tip the scales.
Regarding the issue of a service member's choice to have the judge or jury impose a sentence - this right is as old as the UCMJ itself. And it exists for a reason. Sure, in civilian court the judge almost always imposes the sentence. It is also correct that the judge may have a better grasp of the "going rate" for typical offenses. But, giving the military accused the choice allows for more fairness - for instance, if you were facing a court-martial and drew the "killing judge" known for imposing unusually harsh sentences compared to other judges, wouldn't you want to be able to opt out?
Moreover, the entire UCMJ is arranged in a different fashion than a civilian justice system. Part of its purpose is to move cases through to the end with speed - the military has a great interest in finishing cases quickly both because of resources, because military justice works better when imposed swiftly, and because frankly they have bigger things to focus on than carry a case along forever. To achieve this speed, juries can be small and jury verdicts need not be unanimous. Even for the most serious crimes, a panel may consist of only five members. And no matter the size of the panel, a guilty verdict is achieved if 2/3 of the members vote guilty - in civilian court the prosecution usually needs a unanimous verdict or else it is a hung jury and the trial starts over with a new jury. No such unanimous protection exists for the military accused - the UCMJ wants a final verdict the first time, so 1/3 of the panel may vote not guilty but the result is still a guilty verdict. Allowing the accused to choose between a judge or a jury to decide the sentence is a smart way to offset this issue, and brings more fairness and equity to the process.
If Congress wants to re-work the UCMJ, they need to re-work it all. If they take the protections of the accused away, they should add in the protections that exist in the civilian system as well.
A fundamental ideal of American criminal justice is that you are innocent until proven guilty. With that, a defendant may not be punished until after he has his day in court.
Of course, defendants are routinely placed in jail before their court date. This is done generally to ensure their presence at trial. In most civilian jurisdictions, a bail/bond system exists so that the defendant (or their family...or a bail bondsman) will pay the court a sum of money which the court keeps as a bond until the defendant's trial date. If the defendant shows for trial, the money is returned to the defendant. If the defendant skips trial, the money is kept by the court. It is a system that generally works.
Assuming you can pay your bail, this gets you out of jail prior to your trial. This allows you to continue using your self-evident, fundamental right of liberty prior to your trial - to include preparing your defense.
But, under the UCMJ and its related rules, no bail/bond system exists. Instead, a military defendant may remain in pretrial confinement under the discretion of the chain of command or a military judge. Several laws and rules were enacted to try to protect against abuses of this scheme, including Article 10 of the UCMJ. That statute is an enhanced speedy trial right, which basically states that the prosecution must move diligently in taking a case to court-martial if the accused is in pretrial confinement.
Up until 1984, it was a statute that was used routinely by military courts to dismiss charges where the prosecution failed to give an accused a speedy trial. However, that year a new Rule for Court-Martial was created that codified certain speedy trial rules, which were more friendly to the prosecution, and with that the courts slowly stopped granting relief under Article 10.
Until last week with United States v. Cooley. The Court of Appeals for the Armed Forces dismissed several charges for an Article 10 violation by the Coast Guard. The discussion and the dismissal of charges most certainly indicates that Article 10 still has meaning. And with that, military defendants should know they still have a remedy if kept in pretrial confinement if the prosecution fails to bring him to trial in reasonably speedy fashion.
Last year, there was a terrible tragedy in Afghanistan when US forces mistakenly hit a Doctors without Borders facility. But in war, as in other places, tragedies occur. And when there are a million factors leading up to the end result, with small bits of negligence or carelessness by lots of people involved, it's sometimes hard to lay the blame on someone. But for some reason, society just loves to find a scapegoat.
The NY Times ran an op-ed yesterday, that honestly has so much wrong with it we could discuss the faults for days. In the fine print at the end we see the author is also counsel for Doctors without Borders. With a dog in the fight, it appears the content is far from unbiased.
One of the more striking comments was "Given the loss of life and damage to a hospital which, by definition, is a protected site under the law of armed conflict, it is hardly surprising that many view these [administrative actions, not criminal] actions are inadequate." Wow...that is pretty Old Testament. But to an author who so flippantly accuses the military of not using western standards of justice, shouldn't we ideally require a showing of criminal conduct that caused the loss of life (and property damage) before anyone thinks about picking up the pitchforks and torches to go after an individual personally in a criminal court?
Fighting a war is an inherently dangerous task. Practicing medicine, even in US hospitals, can be as well. Would the medical community really prefer a strict liability standard when it comes to their profession? If there is a loss of life in the hospital or clinic, should we go ahead and gin up a grand jury to investigate to make sure the dozen people involved in the matter are handled adequately, from a criminal perspective? And if that process isn't open to the public and press to comment review and comment on, then someone must be hiding something?
To say "the Pentagon is compounding the tragedy by treating the case as less grave than it is" is quite absurd. As if the military does not routinely court-martial servicemembers for substantiated cases of negligent derelictions of duty up to and including homicide courts. To suggest the Army must court-martial one or more soldiers just to deliver a sufficient public scapegoat is quite the opposite from a western ideal.
Well, the Navy case of Lieutenant Commander Edward Lin is obviously shaping up to be super interesting in a number of ways. Espionage charges tend to be. With Lin's family setting up a webpage to have their say in the public arena, it may be tough to pick out their legitimate points from their bogus ones.
For instance, they state "[t]he government immediately imprisoned Eddy for more than two months before even preferring court-martial charges." They then state he has stayed in confinement for months after charges were preferred. Implied in the original statement is that two months is a long time to wait for preferral after an accused military member is placed into pretrial confinement. Reality, unfortunately, is that two months is lightning quick in the glacially paced military justice system, especially in a high visibility and likely complex case such as this one.
The Navy Times just wrote about this family website, and offered a response to the issue of pretrial confinement. Citing the Marine's official website as the source, they state "a military member can be confined pretrial so long as the member is considered a flight risk or is likely to commit a serious offense if he or she is released." That is quite an inaccurate assertion (I did not see the source material to see if this was just a bad translation by the Navy Times or whether the Marines actually posted such a statement). Either way...pretty rough. There are a number of other pieces to the pretrial confinement process, including the fact that if any lesser degree of restraint (such as house arrest) is adequate to contain the flight risk and/or the likelihood of additional serious misconduct, then pretrial confinement is illegal.
More importantly to Lin's family website implication that he has been confined too long, the Navy cannot just hold him indefinitely in confinement. Under Article 10 of the UCMJ the Navy must act to move the case forward to trial with reasonably diligence (especially if Lin has demanded a speedy trial). And of course the Sixth Amendment's right to a speedy trial exists as well. At some point, if the Navy cannot show they are working hard at getting this case prosecuted while the accused sits in jail waiting for his day in court, Lin could be ordered out of confinement or the case could even get dismissed.
Here is a fascinating article showing the continued extreme politicization of sexual assault in the military. Congress and DoD are looking into whether the military provided skewed information about sexual assault statistics to Congress, and one senator threatening "if the military was sloppy or misleading in the way they presented information, I'll go after them with my claws bared."
Maybe folks in the military would choose to spin some facts in an overly zealous attempt to dissuade Congress from passing what the Pentagon otherwise believes to be a bad law? Maybe the theatrics and headlines provide a boost to the politicians and to special interest groups involved? That's part of the appearance of these public fights, and that hurts the military justice system and all those involved.
That is especially true for the servicemember facing charges. It can be hard to hear all the details of the facts of a case when the volume of the political din is turned up so high.