Military Law: Courts-Martial
Miami Military Lawyers
The Court-Martial Process
The Miami military criminal lawyers at DMT have defended clients charged with court-martial offenses across the United States. Our attorneys represent service members in all branches of military service. The partner in charge of the military law division at DMT is a former active duty U.S. Army JAG Corp captain who spent several years on active duty both prosecuting and defending service members charged with offenses such as burglary, grand theft, sexual battery, rape, aggravated battery, manslaughter and many other offenses chargeable under the Uniform Code of Military Justice. Any service member charged by the military and facing court-martial charges should contact an experienced military criminal defense lawyer to defend the charges. A court-martial is a serious and stressful situation that requires considerable attention. In most instances, the military is required to appoint a military defense lawyer to represent defendants, however, service members can retain private counsel to defend the charges.
Convening a Court-Martial
The military does not have a standing criminal justice system. Before a service member can be tried, the court-martial must be convened by commanders having the authority to do so under the Manual for Courts-Martial (MCM). The MCM is literature that controls the entire legal process in the military. The MCM and the Uniform Code of Military Justice (UCMJ) form the cornerstone for the court-martial process, as well as non-judicial punishment (Article 15's). Before a court-martial can take place the appropriate commander of a certain rank depending on the level of court-martial must sign a convening order and designate military members within his or her command to sit as panel members. Generally, officers with the rank of O-6 or above can convene a general or special court-martial. Lower level officers can convene summary courts-martial, as the punishments that attach in the event of a conviction are not as serious as in this court-martial setting.
Assembling the Court-Martial Panel
As part of the convening process, the commander will appoint members within his or her command to sit as panel members. Panel members are similar to jurors in the civilian criminal justice system. Panel members are chosen throughout the command and are ordered to appear at courts-martial during a designated time period. Both officers and senior non-commissioned officers are chosen by the convening authority to sit as panel members. Once the court-martial commences, panel members go through a voir dire or jury selection process to determine if they are suitable to sit in judgment on a particular criminal case.
Summary courts-martial are the least serious criminal trials that occur in the military. Summary courts-martial occur in all branches of military service. A summary court-martial is composed of one commissioned officer, usually an O-3 or an O-4. With the exception of the Air Force, a defendant involved in this type of proceeding is not entitled to representation by a military defense lawyer, but the service member has the right to hire a privately retained military defense lawyer as long as this does not unduly delay the proceeding. The service member has the right to refuse to be tried at a summary-court martial. In the event this occurs, the charging document is returned to the convening authority who will decide whether or not the service member will be tried at a special or general court-martial. The maximum amount of confinement is 30 days for lower enlisted personnel. Anyone above the rank of E-4 cannot be confined, but can have their pay grade reduced, be restricted to post and have their pay forfeited.
A special court-martial must be convened by a commander with special court-martial convening authority. There a two types of special courts-martial, a straight special and bad conduct discharge (BCD) court-martial. The difference is that a military judge does not have the authority to discharge a service member in the event of a conviction, while a military judge can order a discharge under the BCD court-martial. A service member is entitled to be represented by a military defense lawyer at trial, but he or she can also hire a private criminal defense lawyer to defend the charges. The prosecutor in this proceeding is an military officer assigned to the JAG Corps (JAG). The maximum punishment if convicted at a special court-martial is 12 months of confinement, forfeiture of pay, reduction in rank and a possible discharge from the military. The panel must consist of at least three members.
Prior to the commencement of a general court-martial, the military member is entitled to a pre-trial proceeding known as an Article 32 investigation. An investigating officer is assigned to conduct a hearing where witnesses testify to determine if there is probable cause or a basis to conduct the general-court-martial. A military judge will preside over the proceeding. A service member is entitled to be represented at by a military defense lawyer at trial, but he or she can also hire a private criminal defense lawyer to defend the charges. The prosecutor in this proceeding is an military officer assigned to the JAG Corps (JAG). The maximum punishment that can be handed down by the military judge are the maximum punishments set forth in the UCMJ including a dishonorable discharge. This being the case, the general court-martial is the most serious of the criminal trials that occur in the military. The panel must consist of at least five members.
If your chain of command is considering or has decided to court-martial a military service member, contact the Miami criminal lawyers at DMT. An experienced criminal attorney is available every day of the year, 24 hours a day to speak with you regarding your situation. Allow us the opportunity to help protect your rights and defend you case. You can call our office at (305) 396-3982 or reach us by completing the form on our contact page or by sending an e-mail.