Court Martial Lawyer - Military Defense Attorney

Court Martial Trial Procedures In The Military

Court Martial Trial Procedures

Court Martial Military Lawyer

The rules and procedures in court martial are very similar to those in civilian courts. The following discusses some of those similarities and points out some of the differences.

Pretrial Conferences at a court martial (“Meeting in Chambers”).

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As in many civilian courts, a legally trained judge presides over most courts‑martial. The "military judge" may hold informal conferences to coordinate aspects of the trial. These are similar to conferences a civilian judge might have "in chambers." Under the military rules, "RCM 802 conferences" may be in person, or by phone, but may not be used to resolve contested issues. Contested procedural or legal issues must be resolved in court, on the record.

Pretrial Hearings. The military judge usually settles contested legal or procedural issues under Article 39(a), of the Uniform Code of Military Justice, which allows him to conduct hearings for that purpose. Called "Article 39(a) sessions," the military judge may hear witnesses, take other evidence, and hear arguments, just as a civilian judge would during "motion hearings" in a civilian case. These sessions and most other proceedings of courts‑martial are open to the public. As in civilian cases, Article 39(a) sessions take place outside the presence of the "court‑martial members" who serve as the jury in military cases.

Arraignment. One of the first "Article 39(a) sessions" in a military case is typically "arraignment." Just as in civilian cases, the accused servicemember is informed of the charges against him and offered an opportunity to make a plea (i.e., "guilty" or "not guilty"). If the servicemember intends to plead guilty, before a formal plea may be accepted the military judge must ensure that the servicemember understands what he is doing and is acting voluntarily. This is called a "providency inquiry." Civilian judges have the same requirement, although the military inquiry is typically more extensive and fact-specific regarding the offenses.

The Court Member Panel. Similar to civilian juries, court‑martial members are officers or enlisted persons from the same community or command (“jury of peers”) as the servicemember on trial. In civilian communities, serving on a court martial jury is a duty of citizenship, and local court officials will "summon" citizens to serve as jurors. In the military, the commander assigns members to serve as jurors, and that becomes their primary military duty.

Call a court martial attorney and military lawyer if you are accused of a military offense.

Air Force Court Martial Appeal: Larceny and Drug Use

Air Force Court Martial Appeal: Larceny and Drug Use

Material prejudice from error

In United States v. Moore, 67 M.J. 753 (A.F. Ct. Crim. App. 2009) the Appellant pled guilty, and was found guilty, at a judge alone special court-martial, for wrongful use of alprazolam (Xanax), divers uses of marijuana, and larceny. The adjudged and approved sentence was a bad-conduct discharge, five months confinement, and reduction to E-1. The issue in this case was whether the use of Appellant’s positive urinalysis tests, conducted after the period of charged marijuana use, were improper evidence in aggravation. The Court concluded that it was plain error to permit the documents and the Appellant suffered material prejudice because of the error.

The AFCCA’s analysis in the case reinforces the importance of complying with the specific requirements of R.C.M. 1001. “[T]he question is not whether the appellant’s continued use of marijuana while pending court-martial charges is aggravating—certainly it is, and it has a direct impact on good order and discipline. The question is whether the subsequent uses make the former use aggravating in a way consistent with the limitations of R.C.M. 1001(b)(4) and case precedent. We find that it does not.” The ACCA analyzed the two limitations on aggravation evidence: (1) it should be directly connected to the charged offenses; and (2) it should pass a M.R.E. 403 balancing. In this case, the positive urinalysis tests after the charged period were not “directly related” to the charged offenses. When the aggravation evidence is uncharged misconduct, it must involve a continuous course of conduct with the charged offense. Regarding uncharged drug use specifically, the court applied the test from United States v. Hardison, 64 M.J. 279, 282 (C.A.A.F. 2007), that held uncharged misconduct should be “closely related in time, type, and/or often outcome, to the convicted crime.” In Hardison, the court held that past service drug use failed this test when there was a three-year gap between the pre-service use and the charged use. Although though the time separation in this case was just a few months, the ACCA still did not find the uncharged misconduct to be “directly related” absent any specific evidence showing the uses were related; “[t]o conclude otherwise would simply result in the conclusion that all drug usage is aggravating to any charged drug usage.” The Court acknowledges that the limitations in R.C.M. 1001 have been criticized, but points out the government has other options when the rules prohibit admitting uncharged misconduct in aggravation; the government could “incorporat[e] the essence of that misconduct in opinion testimony, refer additional charges, or try to admit it under R.C.M. 1001(b)(2) as properly maintained personnel records.”

An experienced military lawyer can successfully challenge a guilty verdict and have it overturned. If you have been held guilty by a court martial, consult with an experienced court martial lawyer. Court martial attorneys understand the complex rules and procedures of military law and can use them to your advantage. Consult with a military attorney if you are facing court martial. A military attorney can provide you with invaluable advice and service that can save your military career.

Judges - United States Court of Appeals for the Armed Forces

§ 942. Art. 142. Judges

(a) Number.— The United States Court of Appeals for the Armed Forces consists of five judges.
(b) Appointment; Qualification.—
(1) Each judge of the court shall be appointed from civilian life by the President, by and with the advice and consent of the Senate, for a specified term determined under paragraph (2). A judge may serve as a senior judge as provided in subsection (e).
(2) The term of a judge shall expire as follows:
(A) In the case of a judge who is appointed after March 31 and before October 1 of any year, the term shall expire on September 30 of the year in which the fifteenth anniversary of the appointment occurs.
(B) In the case of a judge who is appointed after September 30 of any year and before April 1 of the following year, the term shall expire fifteen years after such September 30.
(3) Not more than three of the judges of the court may be appointed from the same political party, and no person may be appointed to be a judge of the court unless the person is a member of the bar of a Federal court or the highest court of a State.
(4) For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life.
(c) Removal.— Judges of the court may be removed from office by the President, upon notice and hearing, for—
(1) neglect of duty;
(2) misconduct; or
(3) mental or physical disability.
A judge may not be removed by the President for any other cause.
(d) Pay and Allowances.— Each judge of the court is entitled to the same salary and travel allowances as are, and from time to time may be, provided for judges of the United States Courts of Appeals.
(e) Senior Judges.—
(1)
(A) A former judge of the court who is receiving retired pay or an annuity under section 945 of this title (article 145) or under subchapter III of chapter 83 or chapter 84 of title 5 shall be a senior judge. The chief judge of the court may call upon an individual who is a senior judge of the court under this subparagraph, with the consent of the senior judge, to perform judicial duties with the court—
(i) during a period a judge of the court is unable to perform his duties because of illness or other disability;
(ii) during a period in which a position of judge of the court is vacant; or
(iii) in any case in which a judge of the court recuses himself.
(B) If, at the time the term of a judge expires, no successor to that judge has been appointed, the chief judge of the court may call upon that judge (with that judge’s consent) to continue to perform judicial duties with the court until the vacancy is filled. A judge who, upon the expiration of the judge’s term, continues to perform judicial duties with the court without a break in service under this subparagraph shall be a senior judge while such service continues.
(2) A senior judge shall be paid for each day on which he performs judicial duties with the court an amount equal to the daily equivalent of the annual rate of pay provided for a judge of the court. Such pay shall be in lieu of retired pay and in lieu of an annuity under section 945 of this title (article 145), subchapter III of chapter 83 or subchapter II of chapter 84 of title 5, or any other retirement system for employees of the Federal Government.
(3) A senior judge, while performing duties referred to in paragraph (1), shall be provided with such office space and staff assistance as the chief judge considers appropriate and shall be entitled to the per diem, travel allowances, and other allowances provided for judges of the court.
(4) A senior judge shall be considered to be an officer or employee of the United States with respect to his status as a senior judge, but only during periods the senior judge is performing duties referred to in paragraph (1). For the purposes of section 205 of title 18, a senior judge shall be considered to be a special government employee during such periods. Any provision of law that prohibits or limits the political or business activities of an employee of the United States shall apply to a senior judge only during such periods.
(5) The court shall prescribe rules for the use and conduct of senior judges of the court. The chief judge of the court shall transmit such rules, and any amendments to such rules, to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives not later than 15 days after the issuance of such rules or amendments, as the case may be.
(6) For purposes of subchapter III of chapter 83 of title 5 (relating to the Civil Service Retirement and Disability System) and chapter 84 of such title (relating to the Federal Employees’ Retirement System) and for purposes of any other Federal Government retirement system for employees of the Federal Government—
(A) a period during which a senior judge performs duties referred to in paragraph (1) shall not be considered creditable service;
(B) no amount shall be withheld from the pay of a senior judge as a retirement contribution under section 8334, 8343, 8422, or 8432 of title 5 or under any other such retirement system for any period during which the senior judge performs duties referred to in paragraph (1);
(C) no contribution shall be made by the Federal Government to any retirement system with respect to a senior judge for any period during which the senior judge performs duties referred to in paragraph (1); and
(D) a senior judge shall not be considered to be a reemployed annuitant for any period during which the senior judge performs duties referred to in paragraph (1).
(f) Service of Article III Judges.—
(1) The Chief Justice of the United States, upon the request of the chief judge of the court, may designate a judge of a United States court of appeals or of a United States district court to perform the duties of judge of the United States Court of Appeals for the Armed Forces—
(A) during a period a judge of the court is unable to perform his duties because of illness or other disability;
(B) in any case in which a judge of the court recuses himself; or
(C) during a period when there is a vacancy on the court and in the opinion of the chief judge of the court such a designation is necessary for the proper dispatch of the business of the court.
(2) The chief judge of the court may not request that a designation be made under paragraph (1) unless the chief judge has determined that no person is available to perform judicial duties with the court as a senior judge under subsection (e).
(3) A designation under paragraph (1) may be made only with the consent of the designated judge and the concurrence of the chief judge of the court of appeals or district court concerned.
(4) Per diem, travel allowances, and other allowances paid to the designated judge in connection with the performance of duties for the court shall be paid from funds available for the payment of per diem and such allowances for judges of the court.
(g) Effect of Vacancy on Court.— A vacancy on the court does not impair the right of the remaining judges to exercise the powers of the court.

Army Sexual Assault Policy, DoD Guidance and Regulations

Army Sexual Assault Policy, DoD Guidance, Regulations, and Memorandums from http://www.sexualassault.army.mil/policy_reg.cfm

The Army Sexual Assault Prevention and Response Program reinforces the Army's commitment to eliminate incidents of sexual assault through a comprehensive policy that centers on awareness and prevention, training and education, victim advocacy, response, reporting, and accountability. Army policy promotes sensitive care and confidential reporting for victims of sexual assault and accountability for those who commit these crimes.

The goals of the Sexual Assault Prevention and Response Program are:

• Create a climate that minimizes sexual assault incidents, which impact Army personnel, Army civilians, and family members, and, if an incident should occur, ensure that victims and subjects are treated according to Army policy.


• Create a climate that encourages victims to report incidents of sexual assault without fear.


• Establish sexual assault prevention training and awareness programs to educate Soldiers.


• Ensure sensitive and comprehensive treatment to restore victims' health and well-being.


• Ensure leaders understand their roles and responsibilities regarding response to sexual assault victims, thoroughly investigate allegations of sexual assault, and take appropriate administrative and disciplinary action.

Army Sexual Assault Policy Links

AR 600-20: Army Command Policy

DoD Guidance, Regulations, and Memorandums

DoD Directive 6495.01: Sexual Assault Prevention and Response (SAPR) Program

DoD Instruction 6495.02 - Sexual Assault Prevention and Response Program Procedures

Army Regulation 27-10: Rights of Crime Victims

MEDCOM Regulation 40-36: Medical Facility Management of Sexual Assault (Dec 2004)

Army Regulation 350-1: Army Training and Leader Development

Military Treatment Facility (MTF) Management of Reported Alleged Sexual Assault Cases - Payment For Exams and Kits

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Sex Assault Court Martial Lawyer Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions and court martials.

TITLE 10 - CHAPTER 47 - SUBCHAPTER I - § 801 - UCMJ Definitions

TITLE 10 > Subtitle A > PART II > CHAPTER 47 > SUBCHAPTER I > § 801

§ 801. Article 1. Definitions

In this chapter:
(1) The term “Judge Advocate General” means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.
(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.
(3) The term “commanding officer” includes only commissioned officers.
(4) The term “officer in charge” means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.
(5) The term “superior commissioned officer” means a commissioned officer superior in rank or command.
(6) The term “cadet” means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.
(7) The term “midshipman” means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.
(8) The term “military” refers to any or all of the armed forces.
(9) The term “accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.
(10) The term “military judge” means an official of a general or special court-martial detailed in accordance with section 826 of this title (article 26).
[(11) Repealed. Pub. L. 109–241, title II, § 218(a)(1), July 11, 2006, 120 Stat. 526.]
(12) The term “legal officer” means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command.
(13) The term “judge advocate” means—
(A) an officer of the Judge Advocate General’s Corps of the Army or the Navy;
(B) an officer of the Air Force or the Marine Corps who is designated as a judge advocate; or
(C) a commissioned officer of the Coast Guard designated for special duty (law).
(14) The term “record”, when used in connection with the proceedings of a court-martial, means—
(A) an official written transcript, written summary, or other writing relating to the proceedings; or
(B) an official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.
(15) The term “classified information” means
(A) any information or material that has been determined by an official of the United States pursuant to law, an Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security, and
(B) any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 (42 U.S.C. 2014 (y)).
(16) The term “national security” means the national defense and foreign relations of the United States.

Sexual Assault in the Army, Navy Air Force and Marine Corps Reporting Policy

Sexual Assault in the Army, Navy Air Force and Marine Corps Reporting Policy from DoDD 6495.01, October 6, 2005

Note: If you are accused of a sex crime in the military, then contact an experienced sex crime court martial lawyer.

E3.1.1. The Department of Defense recognizes the potential impact restricted reporting may have on investigations and the ability of the alleged offender’s commander to hold the offender accountable. However, this policy decision represents the judgment that such risks have been carefully considered but were outweighed by the overall interest in providing sexual assault victims this form of support.

E3.1.2. This enclosure provides the framework for the confidential reporting program and its policies. The SAPRO will coordinate specific implementation details consistent with this policy, in conjunction with the Military Departments. This SAPR Program requires extensive, in-depth training for DoD personnel and specialized training for Commanders, Senior Enlisted Leaders, VA, SARC, investigators, law enforcement, chaplains, HCP, healthcare personnel, and legal personnel.
E3.1.3. See restricted reporting as defined in enclosure 2.

E3.1.4. The Department of Defense is committed to ensuring victims of sexual assault are protected, treated with dignity and respect, and provided support, advocacy and care. DoD policy also strongly supports effective command awareness and prevention programs, as well as law enforcement and criminal justice procedures that enable persons to be held accountable for their actions, which includes appropriate criminal dispositions for sexual assault. To achieve these dual objectives, DoD policy prefers complete reporting of sexual assaults to activate both victims’ services and accountability actions. However, recognizing a mandate of complete reporting may represent a barrier for victims to access services when the victim desires no command or law enforcement involvement, there is a need to provide an option for confidential restricted reporting.

E3.1.5. Assuring privacy and providing a confidential disclosure option for sexual assault victims is critical to discharging the military’s commitment to providing care and support for victims of sexual assault. Sexual assault is one of the most under-reported violent crimes in our society and in the military. Although the victim’s decision to report is a crucial step following a sexual assault, reporting is often precluded by the victim’s desire for no one to know what happened. The Commanders have a responsibility to ensure community safety and due process of law, but they must also recognize the importance of protecting the privacy of victims under their command. Subject matter experts agree that a system which promotes privacy and confidentiality can have a positive impact in bringing victims forward to provide information about being assaulted.

Sexual Assault Court Martial Attorney Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Department of Defense Sexual Assault Reporting - UCMJ Sex Crimes

CONFIDENTIAL REPORTING PROGRAM FOR VICTIMS OF SEXUAL ASSAULT - from DoDD 6495.01, October 6, 2005

E3.1.6. Recognizing these DoD interests as a matter of DoD policy, Service members who are sexually assaulted will now have the following reporting options:

E3.1.6.1. Unrestricted Reporting. A Service member who is sexually assaulted and desires medical treatment, counseling, and an official investigation of his or her allegation should use existing reporting channels (e.g., chain of command, law enforcement, or report the incident to the SARC). When notified of a reported sexual assault, the SARC will immediately assign a VA. Additionally, at the victim’s discretion or request, the healthcare provider shall arrange a SAFE (see paragraph E2.1.13.) to be conducted, which may include the collection of evidence. Details regarding the incident will be limited to only those personnel who have a legitimate need to know.

E3.1.6.2. Restricted Reporting. Restricted reporting allows a sexual assault victim to confidentially disclose the details of his or her assault to specified individuals and receive medical treatment and counseling, without triggering the official investigative process. Service members who are sexually assaulted and desire restricted reporting under this policy may only report the assault to the SARC, VA, or healthcare personnela HCP. However, consistent with current policy, they may also report the assault to a chaplain. Although a report to a chaplain is not a restricted report under this policy or the provisions of this Directive, it is a communication that may be protected under the Military Rules of Evidence (MRE) or applicable statutes and regulations. The restricted reporting process does not affect any privilege recognized under the MRE. This Directive and its policy on restricted reporting is in addition to the current protections afforded privileged communications with a chaplain, and does not alter or affect those protections.

E3.1.6.2.1. Healthcare personnelHCP will initiate the appropriate care and treatment, and report the sexual assault to the SARC instead of reporting the assault to law enforcement or the command. When notified of a reported sexual assault, the SARC will immediately assign a VA. The assigned VA will provide the victim accurate information on the reporting process, including both restricted and unrestricted reporting procedures. Additionally, at the victim’s discretion or request, the healthcare providerHCP, if appropriately trained and/or supervised, shall conduct a SAFE, which may include the collection of evidence. If the healthcare provider is not appropriately trained to conduct a SAFE, the healthcare providerHCP shall help arrange for a properly-trained DoD healthcare providerHCP, if available. In the absence of a DoD healthcare providerHCP, the victim will be appropriately referred to a non-DoD healthcare providerHCP for the SAFE. When SAFE is performed at local civilian medical facilities, those facilities are bound by State and local laws, which may require reporting the sexual assault. The victim will acknowledge, in writing, his or her understanding of restricted reporting, the exceptions to, and limitations on, restricted reporting. This acknowledgement will also include the victim’s understanding that restricted reporting may limit the ability of the Government to prosecute the assailant and an understanding of the reasons DoD policy favors unrestricted reporting.

ENCLOSURE 3

E3.1.6.2.2. Restricted reporting is intended to give victims additional time and increased control over the release and management of their personal information, and to empower them to seek relevant information and support to make more informed decisions about participating in the criminal investigation. A victim who receives appropriate care and treatment, and is provided an opportunity to make an informed decision about a criminal investigation, is more likely to develop increased trust that his or her needs are of primary concern to the command and may eventually lead the victim to decide to pursue an official investigation. Even if the victim chooses not to pursue an official investigation, this additional reporting avenue gives the senior commander a clearer picture of the sexual violence within the command, and enhances the senior commander’s ability to provide a safe environment and contributes to the well-being and mission-readiness of all of its sService members.

E3.1.7. In cases where a victim elects restricted reporting, the SARC, assigned VA (whether uniformed or civilian), and healthcare personnelHCPs may not disclose covered communications to law enforcement or command authorities, either within or outside the Department of Defense, except as provided in paragraph E3.1.8. For purposes of public safety and command responsibility, the SARC shall report information concerning sexual assault incidents, without information that could reasonably lead to personal identification of the victim or the alleged assailant, to the senior commander (see paragraph E2.1.10.) within 24 hours of the sexual assault report.

Sex Assault Court Martial Lawyer Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Court Martial Lawyer Sexual Assault Policy

Army Policy, DoD Guidance, Regulations, and Memorandums

Army Court Martial Lawyer - Navy Court Martial Attorney - Air Force Military Lawyer

The Sexual Assault Prevention and Response Program reinforces the Army's commitment to eliminate incidents of sexual assault through a comprehensive policy that centers on awareness and prevention, training and education, victim advocacy, response, reporting, and accountability. Army policy promotes sensitive care and confidential reporting for victims of sexual assault and accountability for those who commit these crimes.

The goals of the Sexual Assault Prevention and Response Program are:

Create a climate that minimizes sexual assault incidents, which impact Army personnel, Army civilians, and family members, and, if an incident should occur, ensure that victims and subjects are treated according to Army policy.
Create a climate that encourages victims to report incidents of sexual assault without fear.
Establish sexual assault prevention training and awareness programs to educate Soldiers.
Ensure sensitive and comprehensive treatment to restore victims' health and well-being.
Ensure leaders understand their roles and responsibilities regarding response to sexual assault victims, thoroughly investigate allegations of sexual assault, and take appropriate administrative and disciplinary action.

Marine Court Martial Lawyer
Court Martial Lawyer Sexual Assault

Court Martial Lawyer Sex Assault Defense Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Sex Assault Court Martial Lawyer - Validity of Discharge Certificate after Military Service

Sex Assault Court Martial Lawyer - Validity of Discharge Certificate

The issue of validity of discharge certificate has been discussed in Schaefer v. Geren, 607 F. Supp. 2d 61 (D.C. 2009). The Court had to decide whether the ABCMR acted arbitrarily, capriciously, and against the law when it concluded that Schaefers first discharge was without legal effect. The Court found that the ABCMR did not act arbitrarily, capriciously, or contrary to law when it concluded that Schaefers first discharge was without legal effect as the USADPA revoked the authority to issue the discharge prior to Schaefer got the discharge certificate. Schaefer, citing Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997), argued that because he received a facially valid discharge certificate that was not revoked until after his discharge, the Army had to bear the burden of any administrative errors ‚ in this case, the error involving the computer notification system. In Vanderbush, as in this case, the Army intended to flag the Soldiers personnel file, but failed to do so.

The Schaefer court distinguished Vanderbush, observing that in that case the underlying basis of Sergeant Vanderbushs administrative discharge (received before his adjudged punitive discharge was executed) was valid; that is, he had reached his ETS date and his service obligation had ended. In contrast, the Court observed that in Schaefers case the Army (through USAPDA) revoked the authority for Schaefers first discharge well before the Fort Benning transition point issued him his discharge certificate. The Court ruled: When the underlying authority for the discharge is timely revoked, and error in delivering a discharge certificate does not effectuate a valid discharge. citing United States v. Williams.

Michael Waddington is a Court Martial Lawyer that defends Army, Air Force, Navy and Marines worldwide in court martial cases.

Fort Stewart court martial lawyer - 6th Amendment Right to counsel

Fort Stewart court martial lawyer - 6th Amendment Right to counsel

In United States v. Wiechmann, 67 M.J. 456 (2009), the issue was whether SM was denied his 6th Amendment Right to counsel when the SJA did not accept one of the two detailed defense counsel. The court concluded that even though the convening authority violated of the SMs 6th Amendment Rights, it was harmless since LtCol [S] was continuously able to advise the SDC from the background. Even though the defendant does not have the right to more than one detailed counsel, the person authorized by regulations prescribed under section 827 of this title (Article 27) to detail counsel, in his sole discretion . . . may detail additional military counsel as assistant defense counsel. Article 38(b)(6) UCMJ. The convening authority may not interfere with or impede a lawyer-client relationship created between an accused and detailed defense counsel, which was established during LtCol [Ss] initial detail as SMs defense counsel. The court also faulted the convening authority for not seeking information from officials at the departmental level prior to refusing to recognize LtCol [S] as SMs counsel.

The court ultimately found that the convening authoritys action burdened LtCol [Ss] representation of his client in various respects: (1) the Article 32 proceeding was conducted without a full opportunity for LtCol [S] to prepare and participate; (2) LtCol [S] was excluded from pretrial disposition negotiations which the Government had with the SDC, the less experienced defense counsel; (3) LtCol [S] was unable to represent SM in pretrial procedural matters, including a scheduling conference or by requesting a continuance. Under the circumstances, the prosecutions actions violated Appellants right to the assistance of counsel.

In evaluating the case, the court looked for 1) structural error -- an error so serious that no proof of prejudice is required -- or 2) whether the error should be tested for prejudice. Finding no structural error, the court ruled that while the convening authority committed a violation of the SMs 6th Amendment Rights, it was harmless as LtCol [S] was continuously able to advise the SDC from the background.


Michael Waddington is a Fort Gordon court martial lawyer that defends military members in the Army, Air Force, Navy and Marines worldwide in court martial cases.