I spent more than a decade living near, and occasionally practicing military law at, Fort Carson, Colorado, a thriving U.S. Army facility. I undertook the defense of several military courts-martial matters under the (UCMJ), including one murder case that had a good result. Through handling these cases, I learned that the military deals with trials and punishments differently. The aim of the UCMJ is to balance the interests of justice and the accused’s rights with dignity and efficiency while also taking care of the soldier or officer charged. This article outlines some differences between military and civilian criminal defense.
Pre-Trial and Trial
- Military members may hire defense counsel, but the Judge Advocate General (JAG) defense team is there, charged with the duty to consult, help and advise civilian defense counsel.
- In civilian law, a defendant may hire experts to aid his case, but this is done at great expense. In military law, the service pays for experts for the charged soldier, even if he has hired civilian defense counsel.
- In civilian courts, you generally draw a jury pool from the population, which includes many people that defense lawyers would never keep on a jury. In military law, the charged soldier has a right to a panel, or jury, of enlisted members or officers.
- In military courts there is no requirement that juries have a unanimous verdict. This cuts both ways, but in a close case, all the accused needs to be found not quilty is a majority of “panel members,” which is military-justice speak for jurors.
- Unlike most civilian proceedings, in military law the panel members shape the punishment. The result is a punishment that truly fits the crime. I had one case where the jury found my client guilty of distributing drugs and ordered him confined for 30 days without reducing him from sergeant to a lower rank. They felt sorry for him, and their verdict reflected that pity.
- One of the punishments for a criminal conviction is discharge (honorably or dishonorably) as part of the solider’s punishment. The distinction between discharges follows an individual for life. For instance, when a military member is discharged “under other than honorable circumstances,” she loses her educational benefits under the GI Bill.
- In another punishment scenario, the military accused can have his rank reduced on conviction, which affects pay and career concerns.
- In the military, imprisonment can take place on base (yes, “the brig”) or in the case of longer sentences, the convicted soldier is sent to a federal facility such as Leavenworth, Kansas (which by the way, is a former military installation previously known as Fort Leavenworth).
Military life is all encompassing, and today, Memorial Day, we are proud of our military members, and I am especially proud of our military justice system.
Shaun Kaufman Law specializes in civil and criminal litigation.
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