What Makes A Good Court Martial Defense Attorney?

Know Before You Hire A Court Martial Defense Attorney.

A court-martial is a military trial court. Since it is a federal court, a finding of guilt will result in a federal conviction and a federal criminal record. A court martial sentence may include reduction in rank, forfeitures of pay, a punitive discharge (dishonorable or bad conduct discharge), loss of pension, and even imprisonment. For this reason, it is essential to have the best possible representation when facing court martial charges. After having won many courts martial, we decided to compile the following list of the top qualities that we believe make a good court martial defense attorney:

1. Fearlessness: Most military defense counsel are intimidated by the the unlimited resources and power of the Government.  Some are even afraid of how their military careers will be affected if they strongly oppose the Government. This kind of fear is extremely detrimental to a good defense. The best defense counsel are fearless to stand against the Government, and are not afraid of trial.

For example, the Government rarely offers a plea deal worth taking, and often offer a “deal” that includes a sentence that you would get if you went to trial and lost anyway. A good defense attorney will be able to recognize a bad plea deal and will not be afraid to turn it down and to go to trial. If they have a solid track record of winning, even better – they will have more confidence. At trial, military judges are often hostile toward the defense and will push defense counsel to concede issues against the best interest of their clients. They will also give every benefit of the doubt to prosecutors, and even occasionally help them out. Most attorneys are afraid of judges, but the best defense attorneys understand that judges are most worried about their own careers and “protecting the record.” Therefore, they do not expect any favors to be given the defense. Instead, they will protect their client’s rights, raise the right issues for the record, and present a zealous defense without hesitation – even if it means standing up to or challenging the judge.

Defense strategies must often be bold in order to be successful at court martial. A coward is useless inside or outside the courtroom. Also, trial can be chaotic, and it requires a defense counsel to make many difficult on-the-spot decisions and adjustments. Just like a good leader in combat, good defense counsel will not be afraid to take charge and make the right decision every time – especially difficult situations.

This kind of fearlessness is a rare quality and very difficult to find in an attorney – especially if they don’t have combat leadership experience. This highlights just a few reasons why being fearless is one of the most important qualities of a good court martial defense attorney and leads as the number one quality in this article.

2. Investigative Skills: The military literally has unlimited resources to investigate and prosecute. However, investigators do not use these resources to conduct a fair and unbiased investigation to discover the truth. They use these resources to find any evidence to be used against you. Therefore, they investigate to confirm their bias based on allegations and overlook exculpatory witnesses and evidence that make all the difference.

 Good defense counsel will conduct a thorough investigation of their own and discover what really happened. This requires examining the evidence more closely than the Government, and the ability to recognize missed leads and identifying leads that may not have been known to military investigators. The best defense attorneys conduct a personal investigation which may include the use of privately employed investigators depending on the expertise needed.

The results of a defense investigation should never be shared with military investigators, as they will already be invested in their own results. They will not be convinced otherwise. The good defense attorney knows how to use the results in negotiating with the Government attorneys, in motions for appropriate relief, or in defense at trial.

3. Winning Experience: One of the most important qualities of a good court martial defense lawyer is experience. However, the type of experience is critical. There are many misleading claims of experience out there.

For example, retired military judges often go into private practice to supplement their retirement income and claim experience as a positive quality.  However, military judges are career bureaucrats and have spent their entire careers (20 years or more) assisting the Government. They are not career defense attorneys. While experience as a judge does have some merit, it lacks what is most important: facing the Government against all odds and winning. Retired military judges are talented bureaucrats. They do not have the talent that would have drawn them into private practice as defense attorneys prior to retirement.

Some firms inflate claims of “combined 100 years of experience” etc. However, combining the years of experience of each individual attorney at a firm does not necessarily mean anything. Furthermore, they do not disclose that all these years of “experience” includes prosecution time, and bureaucrat time, which is not the kind of experience that matters.

The best defense attorneys chose their careers as defense attorneys based on their positive results and desire to defend the rights of others. This translates to multiple case dismissals, favorable plea deals negotiated, and acquittals at trial. Many “experienced” attorneys will claim years of experience but will not have achieved many acquittals at trial (if any). A good court martial defense attorney will have a solid track record of many positive results as a defense attorney.

4. Negotiation Skills: A court martial, like all trials in the United States, is an adversarial process. This means that whoever has greater leverage will use it. The Government always starts out with greater leverage because of their power. Just being charged with a crime puts you at a disadvantage. However, a good court martial defense attorney will not only understand how to gain leverage, but how to use it. Most Government counsel have such hubris that they think the defense is always at their mercy. However, retaining an attorney with a track record of winning creates an advantage. Once at the table, negotiation skills are critical. This is not a skill meaningfully taught in military schools and most don’t possess it. Attorneys either have this skill inherently or develop it with experience. Superior negotiation skills can result in favorable plea deals or case dismissals.

5. Advocacy: When selecting a court martial defense attorney, you are choosing an advocate. Someone who can communicate effectively with trial counsel (military prosecutors), the judge, and a panel (military jury) on your behalf. This means being able to adapt to various forms of advocacy depending on the phase of trial and the audience: negotiating with trial counsel, raising issues and arguing points of law to the judge, cross examining witnesses, and storytelling with the military jury.

Superior advocacy includes the ability of counsel to handle pressure and use it to your advantage. In a court martial, defense counsel must select a favorable panel during voir dire, make an effective opening statement, and make a convincing closing argument. They also must cross examine witnesses, raise objections, respond to objections, and make arguments to the judge on points of law when they arise. Many of these situations can be planned for, but many also cannot. Therefore, many situations arise under pressure and all of these situations are opportunities to persuade the judge or jury. A good advocate must be persuasive in all phases of trial – especially the unexpected situations.

The popular military phrase “no plan survives first contact with the enemy” also applies to trial. A good advocate can think on their feet and adapt their strategies to changing circumstances, much like calling an “audible” in a football formation. Most military counsel are unable to do this effectively, as it requires fearlessness, skill, and winning experience. This is why selecting a good advocate is of the utmost importance.

6. Knowledge of Military Law: Military law is a unique area of law that requires specialized knowledge and expertise. A good court martial defense lawyer will have a comprehensive understanding of military law and the Uniform Code of Military Justice (UCMJ). Of equal importance, they will know the inner workings of the military justice bureaucracy. They will be able to apply this knowledge to develop effective legal arguments and strategies, engage trial counsel with effective negotiations, file pre-trial motions, and raise important issues during trial. While this is important, most military counsel will receive training on developments of military law. However, they will not possess the other qualities mentioned in this article and therefore this rounds out the bottom of the list.