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How the court-martial process works

In the wake of recent publicity surrounding the controversial court-martial verdict for Army Staff Sgt. Alberto Martinez at Fort Bragg, N.C., who was acquitted of murdering two superiors in Iraq, I’ve received questions from civilians regarding the military court-martial process.

I’ve also received inquiries from my military buddies asking about the process from my perspective as a civilian defense attorney.

It seems that the Martinez court-martial made it clear to those inside and outside the armed forces that the military justice system is quite different from the civilian criminal justice system. But it’s not as simple as the plotline of a “JAG” episode may make it seem on television.

The overwhelming majority of courts-martial are for active-duty military members. Others subject to court-martial include retirees, reservists in certain situations, cadets, midshipmen, prisoners of war, and, during war, people serving with and alongside our troops in the field.

Those subjected to the process are accused of violating a provision of the Uniform Code of Military Justice, a federal law that sets the foundation of U.S. military criminal law. A court-martial is most easily described as a military criminal trial.

The basic structure is similar to criminal trials you may have seen in civilian courts or depicted in the movies, such as in my favorite court-martial movie, “A Few Good Men.” The typical players are all there: judge, jury, prosecutor and defense attorney.

But some of the crimes you may see prosecuted in the military environment aren’t applicable to civilian life, such as desertion, adultery and failure to obey an order. Others, such as murder and sexual assault, fall in line with civilian law.

Before a general court-martial, the case goes to an Article 32 hearing, roughly the equivalent of a grand jury proceeding for civilians. Here, an investigating officer reviews the evidence to see if enough is there to proceed with a court-martial. If the case goes forward, a military judge is selected from the ranks of the Judge Advocate General’s Corps. Those chosen generally are veteran courtroom advocates with years of trial experience.

Once the case goes to the courtroom, a court-martial has two basic phases: the “findings” phase and the sentencing. In the findings phase, government prosecutors present witnesses and other evidence in an attempt to prove the defendant is guilty. The defense attorneys then cross-examine the witnesses and make other challenges to the evidence. Once the prosecutors have presented all their evidence, the defense attorneys present evidence for the defendant. Lastly, the government has a chance to rebut the defense’s evidence.

Once all evidence has been presented, the jury meets privately to determine whether the government has proven the defendant’s guilt. Jurors, called panel members, generally are a mix of officers and enlisted members. They vote by secret ballot, and unanimous votes are required only in death penalty cases. In most cases, conviction and sentencing require a two-thirds majority, unlike civilian courts, which generally require a unanimous verdict for everything.

If the defendant is found guilty, the sentencing phase begins. This can begin immediately following the announcement of the verdict, and the entire process occurs at a rapid pace, unlike in the civilian system, where it can drag out.

In the sentencing phase, the government lays out its justification for how the victim or military mission was affected by the crime. In turn, the defense attorney argues for a lesser punishment.

The sentence can come from a multitude of places, and it’s up to the defense to determine who will dole out the punishment.

The defendant can choose to have his case heard by a judge or by a jury. It could also be split up, with the judge determining the findings phase and the jury determining the punishment.

Punishments depend on the severity of the crime and may include loss of rank and pay, jail time, or even a discharge. However, a conviction is not necessarily the end of a case. Similar to civilian courts, the military justice system allows appeals.

——— The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com. View more “Ask the Lawyer” columns online at www.militarytimes.com/community/ask_lawyer.