Life Post-Martial Tribunal: Insights from a Career Military Lawyer

Deciding the fate of a member in the military is the

Court Martial. The process can unveil a world both similar and distinct from that of civilian courts. This article explores the multifaceted effects of a Court Martial on a military member's life, drawing insights from the experiences of a career military lawyer.

Understanding Court Martial Levels and Their Impact

The nature of the Courts Martial can vary widely based on the level and the severity of the offense. A

Summary Court Martial is essentially an enhanced Article 15, serving as a form of non-judicial punishment. In contrast, a

Special Court Martial addresses charges involving serious offenses such as 'Absent Without Leave' (AWOL), disobeying orders, and even minor theft. On the gravest scale, a

General Court Martial is reserved for offenses including rape, desertion, and murder - these are equivalent to felony convictions in the civilian court system.

A Territorial Advantage for Defendants in Court Martial

For the accused, the experience of a Court Martial comes with several unique advantages. Unlike the civilian system, there is no

bail bond system. Pretrial confinement is not the norm; instead, there are various levels of 'restraint against liberty,' such as restricting an individual to the post or base. These measures are not automatic and are only imposed if there is a provable likelihood of a 'flight risk.'

The Invaluable Advantage of a Military Attorney

One of the significant advantages in a Court Martial is the right to a military attorney

at no charge, regardless of the accused's income. Military defense attorneys are all licensed lawyers admitted to state bars and have an independent chain of command. Their performance is rated by other defense attorneys and are bound by the same ethical obligations of zealously representing their clients, similar to civilian attorneys.

Procedural Differences That Benefit the Accused

In a Court Martial, there are strict procedural differences that benefit the accused. Bench conferences during the trial are explicitly conducted in the presence of the accused, ensuring transparency and fairness. The accused must demonstrate their guilt to the military judge before pleading guilty and this plea can still be negotiated through plea bargaining. If satisfied, the judge or jury will accept the plea, but they may still offer a lesser sentence than the proposed plea bargain, allowing the accused to keep their agreement.

Special Protections and Privileges in Court Martial

The accused in a Court Martial can have an enlisted person serve on the jury, and the good reputation of the Soldier as a member of the military is admissible as evidence towards their innocence. This would never be admissible in a civilian court. Conversely, the prosecutor cannot ask if the accused is a 'bad' soldier to prove guilt unless the defense raises the 'good soldier defense' first.

The courtroom atmosphere is often positive towards the accused, which starts with higher levels of respect from the judge and the jury than in a civilian court. Another significant advantage is the instruction given to the jury that they must acquit if they have any reasonable doubt, a concept that is taken very seriously in military trials.

Consequences and Long-term Effects

While the sentence at a Court Martial can be significant, especially when considering the near-certain first-time offender status, it also comes with the benefit of the military legal system. Military prisons, for long-term sentences, are run more fairly and safely with better rehabilitation programs than their civilian counterparts. The worst punishment for misconduct in a military confinement facility is a transfer to a civilian federal prison.

Overall, the experience of a Court Martial can be nuanced and significantly different from a civilian trial. As a professional military lawyer and a former military defense attorney, the system has several appealing and unique features for those accused.