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Blogs from 2018

  • Until now, servicemembers could have expected their commanding officer to offer non-judicial punishment, or Article 15, if their commanding officer suspected them of UCMJ violations. However, starting in January 2019, the process will change. The 2017 National Defense Authorization Act created a new form of court-martial for commanders to ensure the good order of their ranks. The new tribunal cannot impose more than six months of confinement or award bad conduct discharge; cannot be refused by the servicemember; and does not permit a jury trial. These changes have been made in the hope of trying misdemeanor-type offenses more efficiently. Because of the reduced punishment and potential for reducing administrative demands of the commands, this procedure is now being called a “short-martial.”

    Previous Issue: Refusing NJP

    When a servicemember’s misconduct was not considered serious enough to warrant a court-martial in the opinion of his commanding officer, but did require harsher punishment than an administrative remark or reprimand, his superior could have offered him an Article 15 NJP. The member could then accept or refuse NJP. In the past, many servicemembers were likely to refuse despite having committed the offense because it would likely force their commander to pursue alternatives like counseling rather than go through the hassle and overkill of an official court-martial. If the commanding officer did decide to move forward with a court-martial, the servicemember could still attempt to negotiate a deal back to an Article 15. This effectively would draw out the process and waste resources.

    Current Solution: The Short-Martial

    The short-martial saves the Government prosecutors hours of work by avoiding a trial by members and reduces the amount of quirks that can occur with a jury trial. Senior SNCOs and Officers will no longer need to be pulled from their regular duties to be part of a court-martial, and trials will move along faster without breaks to argue what the jury should and shouldn’t hear. Also, having the trial decided by a military judge alone may provide more predictability and consistency of sentences for comparable offenses.

    With no possibility of receiving a bad-conduct discharge, and with limitations on brig time, over-punishment is much less likely in a short-martial. But servicemembers should know the resulting federal convictions are real and could have an impact on their future career in the military and beyond. In addition, the possibility of a short-martial may affect a servicemember’s decision to refuse or accept Article 15 NJP, especially given that he no longer is assured a trial by a jury of his peers if he refuses.

    Military law is ever-changing, and you need a court-martial defense attorney who thrives on that change. Military Justice Attorneys are here to defend your rights in a court-martial or short-martial case. Give us a call at (843) 773-5501 for a free consultation today.

    The post Military Law: The “Short Martial” appeared first on Military Justice Attorneys.

    Military Law: The “Short Martial”
  • If you have been charged or are suspected with violating the UCMJ, your good military character may be a defense. If used properly, the “Good Soldier Defense” can be effective tool for an experienced attorney to create reasonable doubt in the minds of the judge or jury about whether you committed the alleged crime.

    MJA has successfully used the “Good Solider Defense” for service members facing courts-martial, administrative separations, and adverse administrative actions. Contact our military defense lawyers today to learn more.

    What evidence does the “Good Soldier Defense” consider?

    Military Rule of Evidence 404(a) allows a service member to admit evidence of their good military character to disprove criminal allegations against them. Good military character evidence can be presented in the form of reputation and/or opinion of a third party who has ample interactions with them to form such a positive opinion. For example, a third party witness could testify to a service member’s exceptional military character while in combat, or comment on their military appearance or professionalism. Furthermore, that same witness could testify to a service member’s duty performance while in garrison or on post; adherence to courtesies and customs; and, the qualities of their personal character.

    When can the “Good Soldier Defense” be raised?

    The 2015 National Defense Authorization Act (NDAA) restricted the “Good Soldier Defense” to crimes in which a service member’s character is directly relevant to one of the charged offenses. For example, a service member facing allegations of financial crimes or drug offenses could admit evidence of their good military character to prove their innocence. The NDAA made the “Good Soldier Defense” not apply, however, to more serious crimes like sexual assault, rape, stalking, robbery, wrongful appropriation and larceny, making checks with insufficient funds, forgery, arson, sodomy, housebreaking, burglary, extortion, frauds against the U.S., and perjury.

    Is the “Good Soldier Defense” effective?

    The “Good Soldier Defense” can be effective both at trial and on appeal. For example, in United States v. Bagstad, a Marine Staff Sergeant was convicted at special court-martial of wrongful use of marijuana in violation of Article 112a, UCMJ, and sentenced to a bad-conduct discharge. At trial, the Marine presented a classic good military character defense highlighting his 14 years of service, security clearance, military awards, and fitness reports. On appeal, the U.S. Navy-Marine Corps Court of Criminal Appeals found that the Marine’s good military character defense was undercut by a piece of inadmissible evidence, shaking their confidence in the fairness of the conviction. Because the case involved a “naked” urinalysis and the Marine had a strong military character defense, he was given the benefit of the doubt on appeal and the case was overturned.

    Is there any downside to raising the “Good Solider Defense”?

    Once a service member brings their military character in as evidence, the prosecution is allowed to attack that character evidence to nullify the defense. If not properly prepared, the process may cause more damage to your case.

    Contact MJA Today

    Military charges are extremely serious and require legal counsel that should be retained as soon as possible. Call us today at (843) 773-5501 for a free consultation.

    The post Understanding the “Good Soldier Defense” appeared first on Military Justice Attorneys.

    Understanding the “Good Soldier Defense”
  • The military’s Criminal Investigation Division has one, very important job: to investigate and determine whether or not a service member has committed a crime, or if their actions or involvement warrant court-martial. The CID is essentially the military’s version of a criminal investigator. Though many times CID agents will take a casual approach, make no mistake that it is their mission to investigate crime and very likely view you as a suspect.

    The Criminal Investigation Division serves as the U.S. Army’s primary investigatory agent, as well as the premier investigatory agent for the rest of the Department of Defense (DoD). In this article we will detail more about the CID and how they operate.

    What the CID Does

    The mission of the U.S. Army Criminal Investigation Division, as defined by the UCMJ, is to “conduct and control all Army investigations of serious crimes… and less serious crimes upon request or as needed to enforce Army law or regulations.” CID special agents frequently perform the following duties:

    • Investigate crime
    • Conduct investigations of serious and/or sensitive nature
    • Ascertain criminal intelligence
    • Forensics
    • Maintain DoD criminal records
    • Investigate criminal intelligence
    • Criminal investigations including war crimes
    • Protective service operations

    Agents of the Criminal Investigation Division are tasked with a large variety of crimes to investigate. From non-violent crimes like fraud or theft to the investigation of heavier circumstances, like death or terrorism, the CID’s criminal investigations know no bounds.

    Why Obtaining a Civilian Attorney is Crucial

    If you’re being questioned by a CID Agent, you NEED an attorney. Many times those under investigation will be tempted to cooperate in order to prove their innocence, but proceeding with an interrogation without legal representation can be a costly mistake. Agents of the Criminal Investigations Division have one job: to find an prosecute those that have committed a crime. The attorneys at Military Justice Attorneys also have one job—to aggressively defend you.

    If you believe you are the subject of investigation by the Criminal Investigation Division, contact us at (843) 773-5501 immediately. Let the Military Justice Attorneys defend your honor and protect your future. Contact us for a free, confidential consultation today.

    The post An Overview of the Criminal Investigation Division appeared first on Military Justice Attorneys.

    An Overview of the Criminal Investigation Division
  • NPR’s Sarah McCammon asks military law expert Gerry Healy about President Trump’s latest policy restricting military service by transgender troops.

    Click the link here to read more.

    The post Attorney Gerry Healy Appears on NPR to Discuss Transgender Troop Restrictions appeared first on Military Justice Attorneys.

    Attorney Gerry Healy Appears on NPR to Discuss Transgender Troop Restrictions
  • Just like the civilian court system, the military also has an appeals system set up for post-conviction relief. If you’ve been convicted under a general or special court martial, your case will automatically be reviewed by a judge advocate and by the convening authority. Upon review, the convening authority can, or may, grant some relief in limited cases. They will never increase your sentence post-conviction or during the appeals process.

    In cases where one would like to appeal a summary court martial, the least consequential form of court-martial, the steps can be initiated by the convicted servicemember on the following grounds:

    • New evidence
    • Suspicion of fraud
    • Sentence deemed inappropriate or too harsh given the circumstances, or Judicial error
    Appealing Special & General Court Martial Convictions

    Because Special and General courts-martial carry much harsher penalties, the appeals process is much more robust. Your first step to initiate your appeal is to petition for clemency. The convening authority has the power to defer or reduce your sentence at this stage.

    If you are dissatisfied with the results of your review by the convening authority and request for clemency, you can escalate your appeal request to the individual court of appeals for your service branch, as shown below:

    • Army Court of Criminal Appeals
    • Coast Guard Court of Criminal Appeals
    • Air Force Court of Criminal Appeals
    • Court of Appeals for the Armed Forces
    • Navy-Marine Corps Court of Criminal Appeals

    You are always allowed a conviction review by your branch’s court of appeals if you’ve been sentenced to confinement, dishonorable discharge, dismissal from service, bad conduct, or have been sentenced to death. For lighter sentences, the court of appeals may decide whether or not they will hear your case.

    What if my Branch’s Appeals Court Won’t Hear My Case?

    In the event that the appeals court denies your appeal request, you still have the option of appealing to the Court of Appeals for the Armed Forces. It is important to note however that the facts and evidence presented in your case will not be reviewed by the U.S. Court of Appeals. Their job is only to review the case for mistakes of law as it pertains to your case. In other words, they will only overturn your conviction if they find that a legal error was made by the superior officer during the court-martial or in sentencing.

    Why You Need a Civilian Attorney

    While some parts of the appeals process may seem like you could just get a DIY form online or is self-explanatory, it is always, always in your best interest to hire a civilian courts-martial appeals lawyer well-versed in military law to guide you through the process. After all, your appeal is your last resort to getting life-changing convictions turned over in your favor. The appeals process is also more difficult as you are tasked with convincing military authorities that the original decision was wrong. Do not go at this alone.

    The attorneys at MJA have a long history of representing service members through the military appeals process across all branches. We can analyze your case from the moment you were court martialed to the present in order to find errors and grounds for having your sentence reduced or overturned. Don’t risk discharge or confinement. Call us today for a free, confidential consultation. We’re here to protect you.

    The post Understanding the Courts-Martial Appeals Process appeared first on Military Justice Attorneys.

    Understanding the Courts-Martial Appeals Process
  • The military is unique. It provides members and their families with housing, jobs, grocery stores, and gas stations. It only makes sense that the military would keep within its community its own judicial system. While there are several similarities to the civilian court system, military courts have unique procedures with consequences specifically geared towards its defendants—our service members.

    MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including manslaughter. Contact one of our military defense lawyers today to learn more.

    Differences Between Military and Courts

    Like military and civilian life, military and civilian courts contain vast differences. Some of the main differences which include: (1) the fact that the military has a different set of law under the Uniform Code of Military Justice; (2) the court-martial system is unique and offer commanders and range of disciplinary options; (3) the military’s appeal process is different than its civilian counterpart; and (4) the military’s jury pool is made up entirely of service members and does not require a unanimous verdict for a conviction.  

    (1) Uniform Code of Military Justice (UCMJ)

    The UCMJ is the set of rules and regulations that the U.S. military justice system follows. The UCMJ also serves as the authority for determining the consequences for those who break rules outlined in the code. This is the military equivalent to the civilian judicial system, criminal penal code, or laws. It should be noted that military members are still expected to abide by civilian laws, and could, in some scenarios, be subjected to trial and punishment under both the military AND the civilian court systems.

    (2) The Court-Martial System

    In the military court system, a court-martial is the equivalent of being charged with and being made to answer for an accusation of unlawful behavior in civilian court. There are several types of courts-martial, each with a different level of severity. These courts-martial are as follows:

    • Summary court-martial – used for minor offenses. A summary court martial has only one commissioned officer hearing the case and issuing judgement. Possible penalties include: 30-days jail time, hard labor, reduction in pay grade, or forfeiting up to 66% of service member’s monthly pay.
    • Special court-martial – reserved for the military equivalent of misdemeanor offenses. Punishments may include up to one year of confinement, a loss of up to 66% of monthly pay for a year or less, up to 3 months of hard labor, and a reduced pay grade. Punishment may also include being discharged from service.
    • General court-martial – used for the most severe offenses, and accordingly, carries the harshest penalties. A military judge and/or a panel of service members make up the general court martial trier of fact. The defendant may choose to have the judge, alone, decide guilt or innocence. Punishments range anywhere from confinement, to loss of pay, to the death penalty.

    Under Article 15 of the UCMJ, commanding officers also have the option of imposing non-judicial punishments as they see appropriate.

    (3) The Appeals Process

    The appeals process is another area of the judicial process that differs greatly between the military and civilian systems. In civilian courts, appeals are heard through the circuit courts and can be taken as far as the United States Supreme Court.

    In contrast, each branch of the military handles their own appeals process in the military justice system. Established under Article 66, UCMJ, 10. U.S.C. § 866, by the Judge Advocate Generals (JAG) of each branch, are military’s CCAs:

    • United States Air Force Court of Criminal Appeals (AFCCA)
    • United States Army Court of Criminal Appeals (ACCA)
    • United States Coast Guard Court of Criminal Appeals (CGCCA)
    • United States Navy-Marine Corps Court of Criminal Appeals (NMCCA)

    The CCAs are empowered to review and act on court-martial records by affirming, reversing, or modifying the findings and sentence in cases in which the sentence, as approved, includes:

    • death;
    • dismissal of a commissioned officer, cadet or midshipman;
    • dishonorable or bad-conduct discharge; or
    • confinement for 2 years or more.

    In other words, if you were prosecuted at a General or Special Court-Martial and received a punitive discharge (dismissal, DD, or BCD) OR at least two years of confinement, a CCA will automatically review your case.

    Military appeals are automatic if the convicted service member receives a severe punishment (i.e. punitive discharge); however, there are no automatic appeals in the civilian criminal court systems.

    (4) Jury Composition and Unanimity

    Military juries—referred to as “member” panels—work differently than civilian juries. Members of a military jury are normally commissioned military officers, however, the defendant has the option of requesting enlisted personnel to occupy some of the “jury” seats. A military jury need not consist of 12 members, as they range from three to a dozen, depending on the type of court-martial mentioned above.  

    Unlike in the civilian world where potential jury members are randomly selected from the community, potential jury members in the military are hand selected to serve on the case by the convening authority (the commanding general or other senior officer who convened the court-martial.) Under Rule for Courts-Martial (R.C.M.) 502, members detailed to a court-martial should be persons who, in the opinion of the convening authority, “are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament. Each member shall be on active duty with the armed forces.” The intent, therefore, is to have only the most experienced and trustworthy members on a panel.

    R.C.M. 104 prohibits convening authorities from unlawfully influencing the court-martial process. This prohibition against “unlawful command influence” states that no convening authority is permitted to censure, reprimand, or admonish any court-martial member, military judge, or attorney with respect to any findings or sentence adjudged by the court-martial. In other words, members are free to make whatever decision they believe is fair and right based on the facts and evidence presented at trial, without fear of retaliation or reprisal.

    Most importantly, a unanimous verdict is not required in the military. Under the Constitution, United States citizens have the legal right to be judged by a jury of their peers, which usually consists of 12 members. To be convicted of a crime in civilian court, all 12 members must unanimously agree on the issue of guilt.

    Unlike a civilian court where a unanimous decision is required for conviction, in a military court the Government needs at least three-fourths of the military panel to secure a conviction in most cases. A sentence of death is an exception and requires a unanimous finding of guilt and a unanimous determination by the members that death is the appropriate sentence.

    Protect Your Freedom and Your Military Future

    The biggest concern that service members should have is the experience and knowledge of their defense attorney. Military defense attorneys are not able to represent the accused service member until the investigation is done. The results of that investigation determine what level of court-martial the accused will face. This can include life-changing consequences that will have long-lasting impacts on the accused soldier’s life, military career, and family. 

    An experienced, civilian attorney—whose only job it is to defend your rights—is mission critical. The team at Military Justice Attorneys combine the experiences of a civilian attorney and the military expertise of a JAG officer. If you’ve been court-martialed, or have concerns that you soon will be, don’t wait until the investigation is complete. Contact us today by email or call us at (843) 773-5501 for a confidential, no-cost consultation.

    The post 4 Ways Military Court Differs From Civilian Court appeared first on Military Justice Attorneys.

    4 Ways Military Court Differs From Civilian Court