If you are a military service member facing court-martial charges, read excerpts from Mr. Gapasin’s guidebook on Courts-Martial Defense. These excerpts authored by Ernesto C. Gapasin will answer your basic questions about the process and procedures of a military court-martial. These excerpts, however, will not answer all your questions, and nothing replaces actually consulting with a Military Defense Lawyer and inquiring about your rights and what to expect. If you are serious about hiring a lawyer, call or email Mr. Gapasin. Initial consultations are free.
Knowing the Court-Martial Process and Exercising Your Rights, Part I: Before Preferral
Civilian police were involved. Who may prosecute me? The State or the Military?
If the incident resulting in the current investigation occurred off-post, then the civilian police will initiate the investigation, and will likely perform much of the crime scene investigation, as well as the police interrogations. The civilian county prosecutor can keep jurisdiction of a case depending on whatever policies or politics are played surrounding the incident. If the incident you were involved in is one that is high-profile where numbers of county citizens have some kind of interest in the case, then the county prosecutor could very well maintain jurisdiction, in which case you would have to hire a lawyer who is licensed in the state that the county is located in. Most of the time, and I would actually say about 90% of the time, the county respects the desire for the military and that accused Soldier, to prosecute their own under military laws, and give up jurisdiction of the case to the military.
Military Investigators (CID, NCIS, OSI, CGIS, MPs) asked me to go to their office and give a statement. I would like to cooperate, but I have concerns. Should I be concerned?
Yes you should be — Military investigators out for one thing, a confession, and they don’t care how they go about to get the evidence to close the case. The purpose for military investigators is to get you into their office not to simply interview you, but to interrogate you. They are not out for information, they are out to prosecute you, and to help in conducting a prosecution. Investigators may say that they are out for the truth and just to get information together for the prosecutors, but that’s not true. They will investigate for as long as necessary to implicate whoever it is that is suspect number one. However, after having been a defense lawyer for as long as I have, I can also tell you that they will stop investigating when they get what they want. If military investigators have spotty DNA evidence against you, even if the DNA evidence does not fit the facts, they will stop investigating so this “magic evidence” can be used against you even if you are an innocent accused.
Law enforcement took my computer and searched my home. What are my rights during the investigation?
You have the right to reject the search and any seizure of your personal belongings. Law enforcement will always want your consent first. This way, they do not have to seek out a warrant through a military magistrate (or in the case of the civilians, from a county judge). Just because law enforcement shows up at your house and wants to force themselves inside your home does not mean you have to agree. You have rights — and one of those is to not agree to searches of your private place, or to the seizure of your things. Let law enforcement do the work — let them first get a warrant to conduct a search and to show probable cause to conduct that search before a military magistrate.
According to my chain of command, I’m still being investigated. What happens after the investigation is closed?
Once the investigation is closed, the investigation file is reviewed by the prosecutors with the Office of the Staff Judge Advocate. Disposition of the case, or what the command intends to do with you, depends on the legal advice it receives from the Staff Judge Advocate and the prosecutors who review your investigatory file. After the investigation is closed, expect some disposition of your case to take place, which can range from a nothing to a letter of reprimand or Article 15 up through a court-martial. Sometimes, units will move forward with the preferral of charges before an investigation is complete. This frequently happens when, for example, DNA evidence is collected but USACIL still has not obtained results from the DNA testing. Units may move forward with preferring charges if it feels it has enough to go on. Those DNA results may then be received a month or so or even longer after the preferral of charges.
Can I see the evidence against me? I would like to read the witness statements law enforcement claims to have.
With military investigators, the answer is usually no. When an investigation is pending, military investigators will not typically release any documents from the investigation file. If the county police is conducting the investigation, every now and then, those who are suspects or witnesses may be able to get a copy of the statement they write. These witnesses frequently provide copies of their statements to friends who are suspected of wrongdoing. The police will not directly provide witness statements to a suspect, however. Usually suspects do not get copies of any of these documents until they move from being suspects, to being the accused in a court-martial.
Knowing the Court-Martial Process and Exercising Your Rights, Part II: At Preferral
Charges were preferred against me. Now what can I expect?
After your company commander has read you the charges, you likely were advised to seek immediate assistance with your military branch’s defense office. After discussing what happened with the military defense lawyer, you may be left with a lot of questions. What you can expect next is the Article 32 hearing, which is akin to a grand jury indictment. The Convening Authority will appoint an investigating officer who is usually an (O-4) or higher. His or her job is to listen to witnesses and consider documentary evidence provided by the prosecutors. The IO then provides the Convening Authority with a recommendation as to whether or not reasonable evidence exists to refer or not refer the charges and specifications to a general court-martial. Prior to the Article 32, your lawyer should be conducting detailed pre-trial investigation and discovery to prepare for the Article 32 hearing.
What are the different types of courts-martial? Should it matter to me?
It should matter to you so you know what to expect, and knowing what the potential punishment could be will seriously affect how you approach your court-martial. The first level court-martial is a summary court-martial. Summary courts-martial are a form of administrative punishment and unlike special and general courts-martial, will not result in a federal conviction if you are found guilty of all charges. This leads us to the second level of court-martial, the special court-martial. The special court-martial is a level of court-martial that is reserved for less major offenses (e.g., suspected BAH fraud, disobeying an order). Many times, special court-martials are also reserved for military specific offenses that you cannot find in the civilian world, such as going AWOL. These type of charges are what most would consider to be misdemeanors. The third level of court-martial is the general court-martial, which can result in the maximum possible punishment for an offense.
Is it possible for my unit to place me in pre-trial confinement or to restrict me in any other way?
Yes it is, which is why you need to show you are not a flight risk or a danger to the community. These are the most common reasons a commander would order you into pre-trial confinement. Most of my clients are not placed in pre-trial confinement but for these reasons. Even then, your commander has to have probable cause that you are either a flight risk or danger to the community. Pre-trial confinement is a huge restriction on your freedom, especially since unlike the civilian world, you are not afforded bail. If you continue to violate no contact orders, your unit can order you to pre-trial confinement or even restrict you to the battalion footprint or even your barracks with escorts. Other means of restrictions include restrictions to post, or checking in with your command every 2-3 hours. Either way, the best course of action for the accused is simply to avoid trouble and stay off the radar.
What is the Article 32 hearing? What do you hope to accomplish at the Article 32?
The Article 32 hearing is much akin to a grand jury indictment in the civilian world. In an Article 32 hearing, an investigative officer listens to witness testimony and reviews documents to determine whether or not sufficient evidence exists to refer the case to a general court-martial. After the hearing, the investigative officer then compiles a recommendation as to his opinion for the Convening Authority, who can then refer charges to a general court-martial. For the defense, the Article 32 hearing is an opportunity to conduct discovery of facts, and to size up witnesses when they testify.
Knowing the Court-Martial Process and Exercising Your Rights, Part III: Referral
Charges were already preferred against me, but now charges are being referred — what does that mean?
Referral is basically an order by a convening authority that the charges against you will be tried by a specified court-martial, i.e., summary, special, or general. A convening authority is typically a Major General or Brigadier General, for instance, who has authority to convene a court-martial. So essentially, referral of your case is an order to go to trial. Before referring your case, which takes place after the Article 32 hearing in a general court-martial, there must be reasonable grounds to believe that a triable offense occurred and that the accused committed it. When charges in your case are referred, you will sign a notice form stating that you have received the referred charges.
Is it possible that my case could be disposed of before trial?
Yes it is, and that is exactly what I try to do. Your case could be disposed of at the Article 32 hearing, should the Investigating Officer recommend full dismissal of your case. This happens and can happen in your case if your lawyer is aggressive at the Article 32 hearing and sufficiently cross-examines the government witnesses. Sometimes, cases are negotiated before or after the Article 32 hearing. I would, however, suggest that you not waive your Article 32 hearing because it is such a valuable opportunity to conduct discovery and test and observe witnesses in preparation for what really matters, the actual trial. Also, negotiating your case is only up to the client and should not be forced upon the client by his or her lawyer.
Additional Questions You May Have
Who are you and tell me about your background.
I’m a lawyer who is passionate about what I do – I’m passionate about representing you and taking care of your case. I’m passionate about keeping the system honest and ensuring that you get a full and fair day in court. I want to see you win, and I want to see you be successful in the outcome of your case. I’ve been practicing law since 1999. I’ve seen a lot in the practice of law, and I’ve worked hundreds and hundreds of cases. I’m licensed in Nevada and Missouri, landing my first associate’s job at a top law firm in Las Vegas, Nevada in 1999. I started at Rawlings, Olson, Cannon, Gormley & Desruisseaux, one of the oldest law firms in the State of Nevada. I worked civil litigation representing some of the largest companies in the nation, as well as criminal defense law right out of law school at Mizzou, the University of Missouri. As an associate with legendary Criminal Defense Lawyer, Tom Pitaro, I was involved in two of the highest-profile criminal cases in Las Vegas: the Binion Murder Trial and Nevada v. Margaret Rudin, aka, the “Black Widow.” Interestingly, in my time with the civil law firm of Rawlings, Olson, Cannon, Gormley, and Desruisseaux, I had the great opportunity to immerse myself in civil rights law as an associate defending the Las Vegas Metropolitan Police Department. The level of experience I gained from working with some of the best lawyers in the city of Las Vegas has been invaluable. I apply the lessons learned and my unique level of experience to litigating military courts-martial in courtrooms around the world.
Are you qualified to represent me?
I’m absolutely qualified to represent you – I graduated from the University of Notre Dame in 1996, and the University of Missouri, Columbia School of Law in 1999. I am licensed and in good standing in the bars of Nevada and Missouri. I am also admitted into the United States Supreme Court, the Western District of Missouri, the Eastern District of Missouri, and the Fifth Circuit Court of Appeals. I’m also an active member of the National Association of Criminal Defense Lawyers. My resume and background are further proof that I’m a lawyer who can work with you and get results. What makes me qualified to represent you, however, is not what state I’m licensed in, or whether I am admitted in this court or that court. What makes me qualified to represent you is my experience, my results, and my desire to win.
Why should I hire you?
You should hire me because of my experience, and because of my professionalism. My goal is to win. My goal is to get you a full acquittal and nothing less. No prosecutor, no judge, no panel would ever deny that that should be the goal of any defense lawyer. I fight to get that result for you. As you know, not every case results in a full acquittal, but I work to obtain that result so my clients can return to their normal lives. Professionalism and ethics go hand in hand. Both aid me in obtaining the great result that my clients want. Professionalism and ethics help help me gain credibility with judges and with panel members. When I have credibility, so do you. I want people to believe my case and my position on the legal issues. I never downplay the importance of credibility before judges and panels and neither should you.
Have you had experience with cases like mine?
Most likely. Since becoming licensed in 1999, I have litigated murder, sexual assault, theft, and most offenses listed in the Uniform Code of Military Justice. I have handled hundreds of cases in military law and courts-martial defense during my time in the JAG Corps. I have tried cases in Korea, Japan, Okinawa, and the Continental United States. I have also conducted depositions in the Philippines for a high-profile military sexual assault case. I have waited hours and hours on numerous panels deliberating over the fate on many clients – some facing no more than a few months, and others facing the prospect of life in confinement. I’ve received numerous verdicts after hours and hours of intense trial preparation from everything ranging from petty larceny to rape and homicide. Whatever you are accused of, I know that I’ve handled similar matters at some point in my career since I was sworn to the bar in 1999.
Why should I hire a civilian lawyer?
Under the Uniform Code of Military Justice, you have the right to hire a lawyer with a level of experience and skill you feel comfortable with. The most experienced JAG lawyers are usually Special Victim Prosecutors, who are JAGs that have had the opportunity to try cases longer than 18 months. Most military defense lawyers simply do not have the trial experience, and JAGs who are defense lawyers for over 18 months are typically frowned upon. Prosecutors are getting more skilled and experienced in handling their caseloads because the JAG Corps is focusing on improving the level of military justice. The Special Victim Prosecutors are government lawyers who are considered the most skilled in the JAG Corps in handling sexual assault cases. The SVPs, as they are called, are receiving more resources than ever. The number of SVPs is also increasing throughout the JAG Corps in order to get more convictions and to compensate for the lack of experience of the non-SVP trial counsel. More than ever, you need to hire a lawyer with experience and competence. Ask your military defense lawyer about his last 10 cases. You will learn that if he or she has even handled 10 cases, that most of them will likely have been guilty pleas and that your lawyer has little experience handling contested cases, which are cases that go to trial on the merits. If you don’t feel comfortable with your detailed military lawyer, then remember, its your right to hire an attorney with the resume and the experience.
The free military defense lawyer spoke with me about my case. Why should I pay so much for you to represent me?
Because you have so much at stake. Step back, and think about how damaging a bad conduct discharge can be when you seek employment after the Army. Think about the consequences of a reduction in rank on your pay check. Consider how your life will unalterably change if you have to register as a sex offender. The impact on your life is immeasurable with changes from everything with your finances, career, integrity, and family. Sex offender registration is a life sentence, don’t you think hiring the most experienced, competent lawyer is a small price to pay for protecting your way of life? No fee should be too much considering how much your life could change after your court-martial.
What makes you different from the free military defense lawyer?
Experience. Again, there are few truly experienced lawyers. JAG lawyers also jump from job to job because it’s the JAG Corps’ philosophy that each military lawyer can handle all areas of military law, not just courts-martial. The problem with this in your case is that free military defense lawyers become “jacks of all trades, master of none.” The JAG Corps does not want their lawyers spending too much time handling defense work – anything longer than 18 months is typically frowned upon. Within 18 months, JAGs cannot handle much trial work within that time frame unless they litigate a lot of guilty pleas. Do yourself a favor and ask the free military defense lawyer about his experience level, as well as the number of cases he contested rather than plead out. In the practice of law, experience is key.
Will you have difficulty investigating my case?
I consider pre-trial investigation to be the key to victory in any case. So regardless of where you are stationed, I will make every opportunity to interview witnesses, examine crime scenes, conduct site investigations, and obtain local law enforcement files. Newsom & Gapasin is an international law firm, with the means of doing everything necessary to investigate and prepare your case wherever I am. Even when I was a defense counsel and senior defense counsel working in my office on post, I typically phone interviewed witnesses and investigated scenes before the Article 32 hearing. When I was a defense counsel stationed on Okinawa, but trying cases in Korea, conducting thorough, exhaustive pre-trial investigation was never a problem.
What Are My Rights As A Suspect?
When you discuss your case with one of our attorneys, you establish an attorney-client relationship that gives you a privilege and incentive to discuss everything you know about your case and the charges against you. Failure to disclose all the information in your case to us may make it difficult for us to represent you to the fullest. Tell us what you know — it is all privileged and therefore confidential. Knowing all the facts will only help your attorney in defending you against the charges. Remember, all information you discuss with Newsom & Gapasin is confidential and absolutely will not be revealed to others without your express or implied consent.
Also know that you should not discuss any aspect of your case with anyone without the approval of your lawyer and without your lawyer present. The only person you should ever discuss your case with is your lawyer — not your friends, roommates, doctors, parents, or chain of command. Consider your lawyer the only person you can count on to be on your side.
With advice by your attorneys at Newsom & Gapasin, you will have the choice of one of three ways or forums in which your case may be heard.
First, you are entitled to have the Military Judge Alone decide the merits of your case. Under the law, you have the right to request a trial by military judge alone. If approved, there will be no court members sitting on a panel over your case, and the judge alone will decide whether you are guilty or not guilty. If you are found guilty, the judge alone will determine your sentence. Newsom & Gapasin attorneys will know when and what types of cases are best for choosing to have a Military Judge Alone decide your case, and we will advise you accordingly. Should you request trial by Military Judge Alone, you will know the name of the military judge assigned to your case at the time you make such a request.
Second, you are also entitled to have your case heard by a panel of members. There are two types, an officer panel and an enlisted panel. You have a right to be tried by a court consisting of at least (three in special courts-martial) (five in general courts-martial) officer members. This is a panel composed of commissioned and/or warrant officers.
Third, you are also permitted to request what is called an enlisted panel. When you choose an enlisted panel, you are tried by a court consisting of at least 1/3 enlisted members. None of these enlisted members can come from your company, battery, troop, or detachment. You are also advised that no member of the court would be junior in rank to you.
When you are tried by court members, the members vote by secret, written ballot. Your lawyer has an opportunity to ask the members questions in a process at the beginning of the trial called voir dire. The purpose is to ask questions to determine if they are impartial. If they indicate that they are not, then your lawyer may challenge any member from hearing the case if there is a good reason. Your lawyer may also challenge and exclude a member for whatever reason he or she wants.
Rights To A Civilian Counsel.
You have the right to be represented by a lawyer qualified to practice before military courts. You will be detailed free military counsel. You have the right to request, however, a civilian lawyer. A civilian lawyer would have to be provided by you at no expense to the government. If attorneys from Newsom & Gapasin represent you, you can still keep your military lawyer on the case to assist us, or you can excuse your military lawyer and be represented only by one of your attorneys.
Newsom & Gapasin, Attorneys at Law take the approach that if you hire us, we go to trial each and every time. Every case is different, however, and should circumstances arise that you believe a plea is in your best interest, then we will advise you accordingly and you can choose to accept a plea.
Keep in mind what your rights are as well as other considerations regarding the appropriate plea in your case. You are legally entitled to plead guilty or not guilty to the specifications and charges. You may plead not guilty to any offense(s) even though you are in fact guilty. This is your right under our United States Constitution.
A plea of not guilty to any offense shifts the burden to the prosecution to prove guilt of that offense beyond a reasonable doubt. You have the right to assert any defense or objection.
A plea of guilty to an offense admits every act or omission charged and every element of the offense. A plea of guilty is equivalent to a conviction and is the strongest form of proof known to the law. On your plea alone, and without receiving any evidence, the Court can find you guilty of the offenses to which you have pled guilty. A plea of guilty will not be accepted by the Court unless you realize that by your plea you admit every act or omission, and element of the offenses to which you have pled guilty, and that you are pleading guilty because you actually are, in fact, guilty. If you do not believe that you are guilty, then you should not for any reason plead guilty.
If you plead guilty, you give up three important rights (but you give up these rights solely with respect to the offenses to which you have pled guilty). First, you give up the right against self-incrimination, that is, the right to say nothing at all. Second, you give up the right to a trial of the facts by a Court, that is, your right to have a court-martial decide whether or not you are guilty based upon evidence the prosecution would present, and on any evidence you may introduce. Third, by pleading guilty you give up the right to be confronted by and to cross-examine any witness called against you. By pleading guilty you no longer have these rights.
If you opt to plead guilty, you will be placed under oath and the military judge will question you to determine whether you are, in fact, guilty. Anything you say may be used against you in the sentencing portion of the trial. This dialogue between you and the military judge is called providency. If you tell the military judge anything that is untrue during providency, your statements may be used against you later for charges of perjury or making false statements. Your detailed lawyer will work with you to prepare you on what types of questions the military judge will likely ask during providency. In a nutshell, providency is a discussion between you and the military judge concerning the elements of the offenses to which you have pled guilty. “Elements” are those facts which the prosecution would have to prove beyond a reasonable doubt before you could be found guilty if you had pled not guilty.
Your lawyer may submit to the convening authority an “offer to plead guilty.” This is commonly referred to as a pretrial agreement. A pretrial agreement means you agree to plead guilty to some or all of the charges and in return, the convening authority agrees to take some favorable action in your case, usually in the form of limiting the sentence that he will approve. Prior to rendering a sentence, the military judge will not know the exact limitation on your sentence which you agreed to with the convening authority. The military judge will only learn of the exact limitation after he renders your sentence.
You get the benefit of whichever is less, each element of the sentence of the Court or that contained in your pretrial agreement. If the sentence adjudged by the court is greater than the one provided in the pretrial agreement, the convening authority must reduce the sentence to one no more severe than the one in your pretrial agreement. On the other hand, if the sentence of the court is less than the one in your agreement, the convening authority cannot increase the sentence adjudged.
If you elect to enter into a pretrial agreement, one of the conditions requires you to enter into a stipulation of fact. A stipulation of fact is an agreement among the prosecutor, your defense counsel, and you that the contents of the stipulation are true, and if entered into evidence, are uncontradicted facts in the case. The stipulation of fact is a document the government will use to “tell the story” of what happened in your case. Without a stipulation of fact, the prosecutor would have to call witnesses to get “the story” into the courtroom. From the government’s perspective, it looks at the situation as a give and take – you are getting a limitation on your sentence from the pretrial agreement and in exchange you must agree to a story that tells what you did which can be presented to the military judge and be entered into evidence. No one can be forced to enter into a stipulation, so you should enter into it only if you truly want to do so. The stipulation of fact is used in two ways: first, the military judge will use it to determine if you are, in fact, guilty of the offenses to which you have pled guilty; and second, the military judge will use it to determine an appropriate sentence for you. In a guilty plea with a pretrial agreement, you are required to agree under oath that the matters contained in the stipulation are true and correct to the best of your knowledge and belief.
Right To Testify Or Remain Silent.
You make the final decision regarding whether you should take the stand to testify. The attorneys at Newsom & Gapasin will advise you accordingly depending on the circumstances and facts of your case. If you choose to take the stand, you will be sworn to tell the truth under oath. You will have the rights and privileges of any other witness and may be cross-examined if you do testify.
Alternatively, you may remain silent and are not required to testify at the trial. If you do remain silent, it will not count against you or be considered as an admission of your guilt. Prosecutors are prohibited from commenting on your silence or suggesting that any inference of silence is related to your guilt.