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A 2024 GAO Report to the Committee on the Armed Services, House of Representatives tells you all you need to know to justify hiring an experienced military defense law firm to represent you at court-martial.

Senior officials from each service also raised concerns about the newly established Office of Special Trial Counsel (OSTC) and the likelihood that it will exacerbate issues of inexperience within certain litigation positions. Generally, judge advocates are expected to become eligible for assignment to the OSTC after 2 to 4 years of litigation experience. OSTC experience standards, coupled with the limited number of litigators who meet these requirements, will likely force the services to rely on inexperienced litigators to serve as defense counsel or other positions that lack similar requirements. Further, these officials stated that the focus on OSTC experience standards could lead to a potentially significant imbalance in the experience levels of defense and prosecution assigned to litigate the same case.

Those of us who appear in cases as civilian military defense counsel have been saying this for years.

U.S. Navy Regulation 1137 focuses on the obligation of service members to report offenses. It states: “Persons in the naval service shall report as soon as possible to superior authority all offenses under the Uniform Code of Military Justice (UCMJ) which come under their observation, except when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation.”

This regulation applies to Marines as well, as per Headquarters Marine Corps guidance. However, there’s an additional wrinkle related to civilian arrests and convictions.

Reporting Civilian Arrests and Convictions

Evidence can get lost or destroyed before trial and thus is unavailable to the defense. It depends on what that evidence is and what remedy there is for the loss. A primary question is what is the importance of the lost evidence for the defense, does it mean the accused can’t get a fair trial, and so what remedy must the judge apply? It also makes a difference when the evidence was lost or destroyed and who lost or destroyed the evidence.

The issue is very important because by the time an accused gets the opportunity to do anything about it, much time has passed. Investigations take months before anyone in the defense counsel team knows that and more months before the issue can be presented to a judge. This is why at Cave & Freeburg we have started sending evidence preservation requests as soon as we get the case.

The Court of Appeals for the Armed Forces has issued significant cases on this issue which should be a starting point for a military defense counsel in evaluating the meaning and consequences of lost or destroyed evidence: Simmermacher and Stellato.

The UCMJ: A Frankensteined Military Justice

Over the past decade, the Uniform Code of Military Justice (UCMJ) has undergone significant change. Driven by headline-grabbing scandals and shifting political winds, Congress has stitched together a Frankensteinian monster of legislation, leaving a system with contradictions, unintended consequences, and a looming shadow over due process.

A History of Frankensteinian Tinkering:

The recent firing of Brigadier General Warren Wells, the Army’s first-ever lead special trial counsel, casts a shadow of doubt over the future of the special trial counsel and the defense counsel in the military justice system. While Secretary of the Army Christine Wormuth cited a “loss of trust and confidence” stemming from an old email expressing skepticism about false allegations, the implications for fair trials and due process run deeper. Here’s why the decision raises concerns for the independence of special trial counsel and the integrity of the military justice system:

Chilling Effect on Independent Military Defense:

Wells’ email, albeit controversial, highlighted legitimate concerns about potential false claims and the need for rigorous evaluation beyond accusations alone. He was at the time serving as an Army Regional Defense Counsel (RDC) supervising a group of military defense counsel. If you are facing an Army court-martial, you will meet or have met an Army Trial Defense Service attorney whom an RDC is supervising. The reason for firing Wells sends a chilling message to defense lawyers whose duty it is to challenge the prosecution narrative, scrutinize evidence, and advocate zealously for clients. Secretary Wormuth’s action may create fear and self-censorship, inhibiting defense counsel from fulfilling their ethical duty to their clients and undermining the adversarial process that safeguards justice. Out of self-interest, they might not take legitimate action in their representation for fear that years later, what they said or did may affect their career.

The Secretary of the Navy has issued a significant change to Article 15/NJP procedures for service personnel assigned to or embarked on a vessel.

The Navy’s vessel exception is part of the Uniform Code of Military Justice (UCMJ) that allows the Navy to deny service members the right to demand a court-martial instead of nonjudicial punishment (NJP) if they are “attached to or embarked in a vessel.” This exception was created in 1962 to give the Navy more flexibility in disciplining sailors at sea, where conducting a court-martial can be logistically challenging and time-consuming.

The vessel exception has been controversial since its inception, many of us as military defense counsel have been critical of it, arguing that it strips sailors of their due process rights. In recent years, there have been calls to repeal the exception, and in 2023, the Navy announced that it would be expanding the circumstances in which sailors can refuse NJP. That change is here and your military defense lawyer can help you understand the change and how you might benefit from it.

The UCMJ makes it an offense under Article 107 to:

• Sign a false record, return, regulation, order, or other official document, when you knew it was false; or
• Make any verbal/oral false official statement when you knew it was false.