Summary Court Martial- A Fair Process? Or Foregone Conclusion?

Yesterday, I represented a soldier in a Summary Court Martial at Fort Campbell.  www.jamesphillipslaw.com or www.ucmjlawyer.com. Or, self help legal (invisiblelawyer.com).

His parents had hired me to represent him in the Summary Court Martial because they were concerned that he might be railroaded by his Chain of Command. His parents had good reason to worry.  Summary Court Martial (SCM) are dangerous business for the soldier.

An SCM begins when charges are preferred against a soldier.  What this means is that the soldier is dragged into the Commander’s office, read the charges, and told he will have 72 hours to get ready.  At the preferral, the soldier may be able to look at the packet of information, the allied papers, which will be considered as evidence against him. At some point within the next day or so, the soldier will be hustled over to the Trial Defense Service (TDS) to go over the SCM rights.  At his appointment with either a TDS attorney or paralegal, the soldier will be given a TDS information packet that will describe the basic rights he has at the SCM.  The TDS attorney will spend a few minutes talking to the attorneysoldier, answering a few basic questions and then he will be sent on his way and back to the command.  Since TDS is normally too busy to represent soldiers at SCMs, the soldier will have to go it alone.  The soldier does have the right to hire civilian defense counsel at his or her own expense.  Normally, this doesn’t happen, so the soldier, who has neither the rank nor authority, will be expected to stand up and defend themselves, without counsel, in front of a SCM Officer at what will essentially be a closed door and hidden proceeding. The SCM Officer, usually a captain, will have little to no legal training and will see this as a glorified Article 15, where the real issue is not guilt or innocence, (the soldier is guilty because he is at a SCM) but how much punishment needs to be inflicted on the soldier.

If the soldier does not hire a civillian defense counsel, at trial, the SCM Officer will read from a script.  They will review a packet of information (the allied papers) given to them by the brigade legal and after quickly running through a script with the accused soldier the SCM Officer will convict the solider and max him out according to whatever is the desire of the command.  Most of the evidence that will have been considered will be hearsay, or inadmissible and not competent for Trial.  The soldier will have been intimidated by the Summary Court Officer, convicted on incompetent evidence and have an overall feeling that the entire process is utterly and completely unfair.  The soldier will be right.

The problem is that this is not what the Army intended an SCM to be.  The SCM was created to take pressure off of the military judges and the military courts by allowing a lower level proceeding, that would still afford the soldier all of his basic rights.  At an SCM, the same rules apply as at a Special Court Martial or a General Court Martial.  The rules of evidence apply.  The ability to call witnesses at the trial on the merits and on sentencing both apply.  The ability to introduce evidence in defense and mitigation apply.  In the face of this evidence, the SCM Officer has e a duty to act neutrally and only weigh competent  and relevant evidence.  Because all of these legal rights apply, this is one reason that hiring a qualified civilian military defense attorney may be the most crucial decision when deciding whether to object to or consent to a Summary Court Martial.

More than any other military proceeding the civilian defense counsel has the biggest overall effect on a Summary Court Martial.  This is because at a Summary Court Martial the person that is most confused and feeling like a fish out of water is the SCM Officer. As military officers, they have probably never been around a trial or administrative hearing. They do not understand the law.  They do not understand the introduction of evidence and they do not understand the proper way to question a witness on the stand.  All of these things lead allow the civilian defense counsel to help guide both the SCM Officer and the outcome.  The civilian defense counsel in subtle ways can both befriend and harrass the SCM Officer into making a favorable decision for the accused soldier.

If the civilian defense attorney acts appropriately, he will quickly guide the presentation of evidence at Trial.  This is a huge advantage.  This will also give the civilian defense attorney credibility with the SCM Officer.

As an example of this, I had a case where my client had originally been accused of Rape.  He was a Sergeant First Class (E-7) and was accused of sexually assaulting on of his soldier.  I was originally hired to represent him at a General Court Martial. After the Article 32 hearing, the Article 32 officer recommended a lesser charge than Rape and that the referral be at the SCM level.

At the SCM, the proceeding was held in a tiny office.  The SCM officer and I were just a few feet from each other and the atmosphere was very relaxed.  I had been in the Army for 10 years, both enlisted and commissioned time, and have been deployed to Iraq twice.  The SCM officer was an infantry officer and so I began to chat with him until we were able to start swapping stories.  I relaxed him by assuring him that I wasn’t there to cause trouble and I would help him through the entire proceeding.  I also told him before we even began that the Government had done him no favors because all of the evidence in his allied papers would not be allowed into evidence.  I assured him that I wouldn’t make it hard, just would explain the problems as we got to them.

After we opened the trial, the SCM tried to introduce several sworn statements of witnesses.  The witnesses were not called, but were actually deployed at the time, so I explained this was hearsay and couldn’t be considered.  We did this with the DNA report, the rape kit, all of the pertinent evidence.  All of it was excluded as hearsay.  Then when the main accuser was called to testify I asked the SCM Officer if I could do the direct to make it go easier.  He agreed.  I then lead the accuser through direct, but did it from the defense prospective and not from a prosecutorial prospective.  Before closing arguments, I engaged the SCM Officer in a long conversation on what were the problems with the case.  At that point, the SCM threw out the script and decided that my client was not guilty.

The problem is that if my client went in alone he would now be an E-6 and would have lost huge amounts of retirement.  The SCM Officer would have looked at the packet given to him by the Government, and without cross examination or analysis would have just figured that my client was guilty.

For these reasons, any soldier that is considering going to a SCM should also consider consulting and/or hiring a qualified military civilian defense counsel.  Now here is the problem, there are very few attorneys that are qualified to represent soldiers at SCMs.  Make sure that the civilian attorney you consult with knows what he is doing and that he has lots of experience with Court Martials.  Most attorneys will be happy to take your money to represent you, but many don’t have a clue how a military proceeding works.  Civilian state court trial time does not translate well to the military.

These are the things you should find out about the civilian attorney: (1) how many SCMs has he done, (2) can he explain how an SCM works (both perils and positives), (3) can he explain why you should or should not object to trial by SCM, (4) how well does he know military law, and (5) finally, does he seem like someone you will trust and like.  If he meets these qualifications and you think he can help you, you should really consider hiring him before you go it alone at an SCM.

9 thoughts on “Summary Court Martial- A Fair Process? Or Foregone Conclusion?

  1. Interesting perspective, though you mischaracterize the court-martial process in general, and in particular the purpose of the summary court-martial. I would agree that most folks do see the SCM as a glorified Article 15; I would disagree that this is a bad thing. While there are key differences between nonjudicial punishment under Article 15 (the Accused has more at risk, though he also has greater procedural protections in place), there’s also much in common. The SCM is presided over by a non-lawyer, the Accused has no right to have counsel present, and punishment is severly limited for a reason–judicial economy and the fact that, inherently, military commanders are charged with ensuring “good order and discipline” within their units. I think you’re pulling the wool over the eyes of non-JAG/attorney readers if you brush over the fact that no one is going to be discharged with a BCD or DD solely via a SCM, and no one is going to jail for more than one month; which is very similar to the limits placed on Article 15 punishment.

    As a member of the armed forces and the JAG Corps, I am offended that you think the summary court-martial process is merely a “foregone conclusion” of guilt. I’m also surprised that your client was accused of rape and tried in the military equivalent of traffic court–without knowing the facts I can only say he got lucky.

    Finally, if you so dislike the SCM process, I’m surprised you didn’t advise your client that he was entitled to turn down that forum under Article 20 of the UCMJ and RCM 1303. Seriously, if you want to complain about the lack of procedural safeguards of a SCM but not take advantage of the alternative forums (i.e., turn down the SCM in favor of a Special CM or a General CM), it’s a bit hypocritical to whine about the “foregone conclusion” you faced.

    1. Great comments. Sorry it took me so long to get back to you. I obviously was not trying to offend or whine. I have just found that the summary court martial process can be a very disheartening experience for the soldier. I have been on both sides. I have seen the process work and also horribly derail.

      1. I’m reading this for the first time, and everything you said is true, I have learned that the SCM is a set up for a soldier to be guilty, and counseled by the same chain of command he has to fight. I went Tds and they did nothing but milk me for info then call the unit and tell what my defense was going to be.I released the CPT from my case and hired a real lawyer. There are no true protection for the accused. Then they spend there trying to hurt your whole career over one issue. My case was disrespect when I only fought to protect my sons Medical privacy, when the whole BDE new my son was ill. He was also listed in EFMP. The command does not care for families with special needs. My son had only been sick for one year out of my 15yrs and 8 months on active duty.

    1. Jamie,

      Nice article….and nice job representing your client. You are right on target; the rapid process, the Soldier’s frequent lack of sophistication and the lack of financial resources usually puts the Soldier at a disadvantage that he or she cannot overcome.

      Steve Edwards
      LTC, JA, USAR

  2. Great article, great outcome for your client, but one major legal point you left out is the Supreme Court Case of Middendorf v. Henry, 425 U.S. 25, 40 n.17 (1976) (Rehnquist, J.), which holds that a Summary Court Martial IS ONLY a conviction if you are represented by counsel. Otherwise it is not a criminal conviction. So your clients risk a “Criminal Conviction” if they elect to be represented by counsel at their SCM, and it does not result in an acquittal. That is why most civilian attorneys elect to “ghost represent” clients at SCM by preparing legal briefs for their clients under the client’s name, and help them prepare their evidence, and presentation. That way there is no possibility of a “criminal conviction” following the SCM. Obviously if there is a strong chance of an acquittal with an attorney representing the defendant, then maybe the cost/benefit analysis is to be represented by counsel. At the minimum, as a fellow defense attorney, I think you have to disclose Middendorf to your client, before he or she hires you to represent him or her at SCM.
    Lance Gallardo
    http://www.lancegallardo.net

  3. If you’re part of 7th sustainment brigade on Joint Base Langly-Eustis you are automaticly guilty at a SCM. belive me i know ive seen it more than 13 times and have experinced it twice because my baracks fire alarm went off.

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