The decision whether to hire a civilian court-martial defense lawyer is a very personal and private matter that depends on several factors, including the cost, experience of the attorney, their current workload, the time they have to commit to your case and relationship you have with your detailed military lawyer. Each case is different, and whether you should hire a civilian court-martial defense lawyer is unique to every case, client, and existing military defense counsel.
Choosing a Lawyer is a Personal Decision
Every person facing a court-martial must make three decisions – and these are decisions your lawyer cannot make on your behalf. The first decision is what lawyer should you use, including whether to add a civilian court-martial defense lawyer to your team.
The second is how to plead to the charges (guilty or not guilty). The third decision is whether to testify at the court-martial on your own behalf. These are your decisions alone. If you have a defense counsel, whether military or civilian, you should consult with him or her on each of these decisions – even the hiring of a civilian court-martial defense lawyer (factors to consider when choosing a civilian court-martial defense lawyer is not the focus of this blog post).
In the military, if you are facing a court-martial, each service will provide you a free, detailed military lawyer. This lawyer will represent you at every stage of the court-martial. You also have the right to request an individual military counsel – that is a military lawyer of your choosing – and if that lawyer is reasonably available, your military service will detail him or her to your case.
Additionally, you have the right to hire a civilian lawyer at your own expense – the military will not pay for this civilian lawyer. Since the military is providing a free lawyer, how do you know if you should hire an expensive civilian lawyer for your court-martial?
When to Consider a Civilian Court-Martial Defense Lawyer
Honestly, not every court-martial will require the services of a civilian lawyer. For example, cases that are military-only offenses with little or no risk of confinement, or cases where you intend to plead guilty from the outset; your detailed military counsel may be more than prepared to assist you without the aid of a civilian lawyer. Furthermore, if you are fortunate enough to have an appointed military counsel with significant trial experience with cases of your type, he or she may be able to represent your legal interests in a court-martial without the assistance of an experienced civilian defense lawyer.
It’s really a matter of trust – if you trust that your detailed military lawyer will do everything possible to assist, and has the experience and skills to represent you against the government fully, then these types of cases will not need a civilian lawyer in many instances.
However, when facing serious charges such as murder, aggravated assault, sexual assault, and rape, the assistance of an experienced civilian defense lawyer may be essential. Likewise, if you are facing a lengthy prison term, loss of your family or loss of your career and possibly over a million dollars in retirement, a civilian lawyer may be needed.
It’s the System that Limits Military Lawyer’s Experience
It is a harsh fact that almost all military lawyers will have less experience than the respected civilian court-martial defense lawyers who dedicate their lives to defending service members. The military system is structured to make JAG Officers generalists – not specialists – they are all required serve tours in non-criminal jobs like legal assistance, contracts, operational law, administrative law and claims. After a tour in military justice, two at most, it is likely a military lawyer will never again see the inside of a courtroom.
When most JAGs become field grade officers, they generally stop doing legal work altogether and become legal managers – supervising the inexperienced Captains and preparing reports for Staff Judge Advocates. What’s even more troubling in the military system, it is not a requirement that defense supervisors have prior defense experience or even criminal law experience for that matter.
And while most of the detailed military lawyers are good practitioners, because of the system, they are inexperienced and have tried very few courts-martial.
Trial Experience Matters
So when your case is complicated – or when you face years behind bars – or sex offender registration, you may want to consider adding a civilian attorney to your team; one that can provide the trial experience your detailed counsel may be missing.
Remember, a civilian court-martial defense lawyer must be able to work with your detailed military counsel, and should only be hired if he or she makes your defense team better. Although the civilian defense attorney will not be part of the military, and not be subject to the military chain of command, rarely is the fact that they are “civilians” a sole factor to consider when hiring them. As noted before, it is a matter of trust and experience in the courtroom with cases similar to the charges you face.
Sometimes, there is just too much at risk.
Will M. Helixon