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.