Author: Keith Scherer

Whether a Navy case goes to trial depends mostly on what the charge is. In the current era, the trial question often focuses on whether the Office of Special Trial Counsel will “go forward” to a General Court-Martial or “defer” the case to the command and Staff Judge Advocate for trial or some softer outcome. OSTC has exclusive go-forward authority over certain UCMJ crimes known as “covered offenses.” OSTC will almost always take child sex offenses and CSAM cases to a GCM. They’ll defer he-said/she-said sexual assault allegations, or classic alcohol-related 120s. But it’s not as if they won’t prosecute sexual assault. OSTC often goes forward on Article 120 cases that have strong corroboration and aggravating facts. Domestic violence allegations from an ex will probably be deferred. Non-contact sex offenses might be deferred as well. When cases go to trial at any level, many of them occur at the bigger installations like Norfolk and San Diego, with Mayport, Jacksonville, Bremerton, Pearl Harbor, and Great Lakes also seeing a modest volume. When you’re under investigation, the Navy won’t give you a free defense attorney. If you get court-martial charges, your Navy defense attorney might be a year out of law school and learning on the job. More than the other services, the Navy goes out of its way to make things difficult for a member accused of misconduct.

What the Navy’s 2026 UCMJ Case Docket Shows

The information below is from the public Navy-Marine Corps trial and Article 32 dockets as of May 2026, plus Gagne, Scherer & Associates’ Navy casework and conversations with OSTC and defense counsel. The patterns we comment on here are broad observations and shouldn’t be used as a prediction of how yours will go.

Deferral rates on covered offenses vary across the services. From what we hear from defense counsel and prosecutors across the services, the Marines defer roughly 90% of covered offenses. The Army defers even more than that at training bases, where the covered “sex” offenses are commonly just stupid horseplay: ass grabs and nut taps, misconduct that meets the legal definition but that prosecutors don’t feel belongs at a GCM. The Air Force defers less than the Marines but still defers a majority of its cases. The Navy might defer less aggressively than any of them.

Across every service, crimes against children and adult sexual assault cases with corroborating evidence like DNA, injury, strangulation, or confessions will go to a GCM.

How Navy OSTC Goes Forward or Defers a Case

Article	Allegation	Likely Navy OSTC Action
117a	Revenge porn	Likely deferred
120	Alcohol-related sexual assault	Likely deferred
120	He/She-said sexual assault	Likely deferred
120c	Voyeurism, unsolicited “pics”	Could go either way
128b	Domestic violence	GCM if corroboration
120	Adult sexual assault	GCM if corroboration
119b	Child endangerment	GCM
120b	Child sexual assault	GCM
134	CSAM	GCM

The Navy and the Marines handle adult Article 120 cases the same way: drunken hook-ups and he-said/she-said sexual assault allegations get dumped off to the base legal office. The Article 120 cases that go forward to trial are the ones with corroborating evidence: DNA, injury, strangulation, confessions.

OSTC across all services looks for a way to defer domestic violence cases, particularly when the allegations arise during or after a divorce.

When the victim of a covered offense is a child, the case almost always goes to GCM.

Where Navy Covered-Offense Cases Occur Most Often

• Norfolk and San Diego have the biggest presence on the court-martial docket.
• Bremerton and Pearl Harbor are next, then Great Lakes, Mayport, and Jacksonville.
• Yokosuka, Naples, Sigonella, and other bases also see some action.
• Recent Article 120 trial activity has been heaviest at Norfolk.
• The CSAM cases are typically spread out across the Navy.

FAQs About Navy Courts-Martial

Why does OSTC defer so many sexual assault cases?

OSTC was created to make the acquittal rate in sexual assault cases go down. No matter what changes were made to the rules and the law, the acquittal rates remained high. There was also, according to the advocates, a sense that commands enabled rape by creating a culture that made it happen and by looking the other way when it did. The idea was that by creating an office of elite prosecutors and by taking discretion away from commanders, the convictions would soar. It hasn’t happened. OSTC is focused on its conviction percentage, so it gets rid of the cases it might lose, which happens to be most of them because a high percentage of these complaints are demonstrably false or questionable. OSTC is understandably making sure it doesn’t take the blame.

What happens when OSTC defers a case?

The command decides what to do with the case, leaning heavily on the Staff Judge Advocate’s office for advice. A case might still go to trial, usually a Special Court-Martial but sometimes a General Court-Martial. It could be sent to Mast or addressed with some form of written reprimand. Adsep is a common result after deferral, typically with a General Under Other Than Honorable service characterization for Sailors who don’t have enough time in service to qualify for a separation board.

Is there ever a good reason to waive Article 32?

No.

Some defense counsel claim there are four supposedly “smart” reasons to waive. Three are foolish, one is an AI hallucination.

• “We don’t want to preview our defense for trial.” Waiving doesn’t keep your secret. There are only so many moves for the defense to make, and OSTC prosecutors have experience on the defense side. There are no real secrets, there’s only quality of execution. If you have a winning defense, use it at the Article 32 hearing to get the case deferred or dropped.
• “We don’t want the government to perfect its case.” What does this even mean? The evidence is what it is. If the evidence is bad, OSTC can’t fix that just because the PHO pointed it out. And they’re going to keep working on their case in preparation for trial. If their case is weak, attack it when there’s no risk of losing. Always create reasonable doubt as early as possible.
• “The charges aren’t written in the proper form and we don’t want the PHO to alert the prosecution.” Your waiver alerts the prosecution to take a closer look. R.C.M. 603 lets the prosecution amend charges freely before referral, fix scriveners’ errors with a flick of the pen, or, worst-case, withdraw and re-prefer to cure major defects. You’ve traded all the benefits of the 32 and your strongest opportunity to derail or defer the case for a move that almost never works.
• “When MRE 412 or 513 issues would surface in a way that damages the trial posture.” That doesn’t make any damn sense. It’s AI slop. The tell: “surface” as a verb is what AI writes when a human would say “come up” or “be raised.” If a lawyer’s blog uses “surface” as a verb, a robot’s doing the writing.

Waiving is almost always a blunder. It only makes sense if the benefit you get from waiving is guaranteed (in writing) and greater than what you’re giving up. Remember that if you waive, there’s nothing standing in the way of referral. Your case will go to trial.

The Article 32’s Role in the Deferral Decision

A GCM requires an Article 32 preliminary hearing to establish probable cause first, unless the defense waives the hearing and effectively concedes referral. Deferral can happen before the 32 or after it. In many cases, OSTC pushes the case to an Article 32 even when it wants to defer the case, both for optics and to get a PHO recommendation that gives them top-cover for getting rid of it. Gagne, Scherer & Associates offers practical advice on how to see your preliminary hearing as an opportunity and why you should get a second opinion if DSO or a civilian attorney tells you to waive Article 32.

Special Courts-Martial

Special Courts-Martial are a lower form of court-martial, and the maximum jail time is capped at twelve months. But they’re still serious. The civilian federal system will classify a SPCM conviction as a misdemeanor, but in reality they pack a much harder punch than that. A SPCM conviction will destroy a career, send a Sailor to confinement, get you the lifelong stigma of a Bad Conduct Discharge, and might require sex offender registration. Sailors can’t afford to take a Special Court-Martial in stride just because a General Court-Martial is worse.

SPCMs are common, just over half of the current Navy-Marine trial docket. The UCMJ articles charged range from orders violations and assault to positive urinalyses and false official statements, and roughly a third of the SPCM docket includes at least one covered-offense article like 120, 120c, or 128b, the result of OSTC deferring the case.

How the Navy Makes Life Hard for an Accused

The following observations come from Gagne, Scherer & Associates’ direct experience and our frequent conversations with senior DSO and OSTC personnel.

• The Navy will assign defense counsel through the Defense Services Office when charges are preferred, not during the investigation. The investigative period can last months (or over a year in CSAM cases) before a Sailor has access to a free JAG counsel.
• Navy DSO assignments can include first-tour Lieutenants. A Sailor facing serious charges might be assigned a defense JAG fresh out of the JAG school. Marine, Army, and Air Force defense assignments require more court-martial experience before counsel is detailed to a serious case.

Some Navy commands and investigators actively obstruct civilian counsel. In our experience defending Sailors at NAS Jacksonville, Naval Station Mayport, and NAS Pensacola, Legal Officers might refuse to take calls. They interfere when counsel arranges to speak with a client on urgent matters during duty hours. NCIS and JAG typically refuse to send the Report of Investigation to defense counsel, a practice known internally as blacklisting. This what-happens-in-the-woods attitude is similar to what Sailors see at a DRB, where seniors berate the Sailor into confessions. The specific patterns of obstruction we’ve documented are on our NAS Jacksonville, Naval Station Mayport, and NAS Pensacola pages. If there’s an upside to being court-martialed, it’s that you finally have real rights at that point and the Navy can’t get away with stunts like these.

How a Proactive Civilian Military Attorney Can Help

The complainant’s allegation and the NCIS’s cherry-picked evidence are in place before a charge sheet is drafted. The opportunity for a proactive defense counsel is in how the evidence is explained to OSTC, what evidence they can get to OSTC that might create reasonable doubt, and how the defense orchestrates the Article 32 hearing. Getting counsel involved early, ideally before preferral, is often the difference between a case that goes to GCM and a case that gets deferred. And the 32 has to be fought, not waived. Young DSO counsel often aren’t even involved until preferral, don’t know what to do with a 32 by the time they get detailed to the case, and then waive the hearing mistakenly thinking it’s a waste of time. (Will your case go to trial? One way to make sure it does: waive your 32.)

Gagne, Scherer & Associates: Navy Court-Martial Defense Lawyers

Gagne, Scherer & Associates has defended Sailors at Norfolk, San Diego, Mayport, Jacksonville, Pensacola, Bremerton, Great Lakes, and OCONUS bases for over twenty years. Send us a confidential note or call (224) 935-6172. You’ll speak with an experienced military lawyer directly.

Non-contact sex offenses under the UCMJ don’t require physical touching: recording, distributing images, voyeurism, exposure, child sexual abuse material, sextortion, and online enticement. The charges are spread across Articles 117a, 120c, and 134, and the table below shows what the government has to prove for each. These offenses overlap in ways prosecutors exploit, stacking charges from a single phone extraction across all three articles. In some cases, an honest mistake of fact about age can be a defense in CSAM cases involving older adolescents. OSTC, which controls charging on every offense covered here, makes its decisions by reading the analytical report of what was found on an accused’s devices and picks as many charging theories as possible.

Non-Contact Offenses: Articles 117a, 120c, and 134

These charges come up in phone and computer extractions, cloud storage searches, email and text message reviews, social media investigations, ICAC sting operations, device searches as part of an investigation, and cases where someone showed private recordings to people who were never supposed to see them.

Non-Contact Sex Offenses Under the UCMJ: Key Differences

Offense	Article	Government Must Prove
Indecent viewing	120c	You watched/saw someone’s private areas without their permission in a place where they expected privacy
Indecent recording	120c	You recorded someone’s private areas without their permission in a place where they expected privacy
Broadcasting / distributing indecent recording	120c	You shared or transmitted a recording of someone’s private areas that was made without their permission
Indecent exposure	120c	You intentionally showed your genitals, buttocks, or (for women) nipples in a sexual or offensive way
Distribution of intimate images	117a	You shared sexual images of someone without their permission, knowing it could harm them
Forcible pandering	120c	You forced someone into prostitution
Possession / receipt / viewing of CSAM	134	You knowingly had, received, or looked at child pornography (real or computer-generated)
Possession of CSAM with intent to distribute	134	You had child pornography and intended to share it with others
Distribution of CSAM	134	You shared child pornography with someone else
Production of CSAM	134	You created new child pornography (including asking a minor to send “pics” or “vids”)
Online enticement of a minor	120b/134	You tried to talk someone you believed was a minor into sexual activity
Sextortion	127/120c/134	You used threats to get sexual images, money, or cooperation from someone

How Non-Contact Offenses Overlap

These charges cover different conduct, but prosecutors can use them together. Here’s how they connect:

• Article 117a covers recordings you obtained lawfully but shared without permission (the ex-girlfriend’s nudes you forwarded to your buddies).
• Article 120c covers recordings you obtained unlawfully in the first place (peeping, hidden cameras, recording someone without their knowledge).
• CSAM offenses cover actual and virtual child pornography, including AI-generated images. The MCM definition includes images of what “appears to be” a minor. The minor doesn’t have to exist.
• Viewing CSAM is a separate offense from possessing it. Cached images on a password-protected computer can be enough to prove viewing even without proof of possession.
• Sextortion cases can be charged under multiple articles simultaneously: extortion (Art. 127), indecent recording/distribution (Art. 120c), CSAM (Art. 134), or child enticement (Art. 120b) depending on the facts.
• “Wrongfully” is an element of every CSAM offense, which leaves a narrow opening for defenses based on accidental or inadvertent acquisition. The “knowledge” element opens the door to mistake defenses about the age of the people in the files.

Mistake of Fact in CSAM Cases

The mistake of fact defense might be available in CSAM cases, where an accused can contest whether he knew or should have known the age of the person, but it depends on what the images show. When the files depict very young children, there’s not much hope of convincing a judge you thought the person was at least 18. When the images involve older adolescents, the question of age gets trickier. At trial, the government sometimes brings in pediatricians or nurse examiners who use a medical scale called Tanner staging to testify that the person depicted is a minor. But Tanner staging isn’t required. The government can also leave it to the judge or panel to look at the images and draw their own conclusions based on common sense and whatever other evidence is available. Defense experts can challenge the reliability of any age estimate made from an image.

OSTC’s Role in Prosecuting Non- Contact Sex Offenses

Every sex offense on this page is a “covered offense” under the Office of Special Trial Counsel’s mandate, which means OSTC, not the command, decides what gets charged and where it goes.

• OSTC prosecutors decide whether a case heads to a general court-martial or gets sent back to the command for a lesser disposition.
• OSTC evaluates whether the evidence supports a high likelihood of conviction, not just whether probable cause exists. They’re protecting their winning percentage.
• That evaluation creates an opening for the defense before charges are even preferred.
• Gagne, Scherer & Associates advocates its clients’ interests through OSTC during the investigation phase, puts favorable evidence and weaknesses in the government’s case in front of the prosecutors when investigators won’t, and pushes for a declination or a lesser disposition before the case ever reaches a charge sheet.

Gagne, Scherer & Associates: Experienced Court-Martial Lawyers

Charging theories under Articles 117a, 120c, and 134 overlap, and OSTC will pile them on. If you’re under investigation or facing charges for any offense covered on this page, contact the experienced military lawyers at Gagne, Scherer & Associates at (224) 935-6172. You’ll speak with a civilian military attorney directly.

A military prosecution for CSAM under Article 134 requires the government to prove knowing possession of contraband, among other things. Military members often have bad ideas about how to defend themselves in this kind of case and take action that only makes the situation worse. There are things they can do to help themselves, and hiring a good military lawyer who will be proactive during the prolonged investigative period is one. McGuire AFB (Joint Base MDL) is a particularly good illustration of how all this works.

What the Government Has to Prove

Article 134 CSAM isn’t a strict liability offense. It’s crucial to understand how military CSAM cases are prosecuted and defended. The government has to prove the accused acted knowingly, and “knowingly” covers both the act of possessing or receiving the file and the nature of what the file depicts. In a typical app-encounter case, the contested questions include:

• Whether the depicted person was under 18, or whether the depiction appears to be of a minor. The actual-minor route and the appears-to-be route are different paths to conviction.
• Whether the accused knew, or reasonably should have known, the depicted person was under 18 or appeared to be. This is a separate question from whether she was, and it’s where most of these cases are won and lost.
• How the material got onto the device. The wrongfulness instruction tells the panel that method of acquisition is relevant: a deliberate targeted download is not the same as a file embedded in a zip or a block transfer.
• How long the file was kept and whether it was opened. A file seized 36 hours after it arrived is different from a file that sat accessible on the desktop for three years.
• Whether the accused destroyed the file or reported it to law enforcement on discovery.

The age element can be settled through a prior NCMEC investigation that identified the victim, communications in the chat establishing her age, school records, or a parent’s testimony. When they don’t have direct proof, they have to prove age through expert medical testimony. This is often called Tanner Staging. A pediatric expert can describe what she sees in the images. Tanner staging is credentialed guesswork, and even if it establishes age, it says nothing about the accused’s state of mind, what he knew, or what his intent was.

Tanner Staging is vulnerable to attack from the defense, so the government will cherry-pick only the youngest-looking depictions to charge, the ones a panel will look at and conclude “obviously a child” without help from the expert.

Then there’s the “appears-to-be” aspect of these cases. Article 134 CSAM covers two categories: a depiction of an actual minor in sexually explicit conduct, or an obscene depiction of what appears to be a minor in sexually explicit conduct.

The appears-to-be theory encompasses virtual material, AI-generated images, morphed images, and youthful-looking adults depicted as minors fall under it, and it doesn’t require the depicted person to exist. The trade-off for the government is that the depiction must be obscene under the Miller test, which actual-minor depictions don’t have to be.

The Defenses That Don’t Work

Plenty of service members charged with CSAM call us already convinced they have their get out of jail free card. They’ve done their own research. They know where the line is, sometimes to the millimeter, and they want a lawyer to confirm what they already believe. One client showed up to a meeting with a three-ring binder of case law in plastic page protectors, intending to prove his behavior was barely legal but legal. He was wrong about almost everything. If that binder had landed in OSTC’s hands, they’d have used it as evidence of intent.

Common CSAM Defenses That Don’t Work in Military Court

The “defense”	Why he thinks it works	Why it doesn’t work
Watermark says “18”	The label proves she was an adult	Producers add watermarks. The image is what the image shows. An “18” banner stamped over a toddler is proof of guilty intent, not innocence.
“She told me she was 18”	Her statement covers the knowledge element	Can you prove she told you that? An unsubstantiated claim isn’t enough.
“It’s AI-generated, no real child”	Fake images aren’t CSAM	An image that appears to be a minor in sexual conduct is CSAM. Fake is the same as real.
“It’s just erotica”	If it’s not graphically sexual, it’s legal	Provocative nudity of a minor is enough. Sometimes a clothed minor is enough.
“I deleted the files”	The evidence is gone	Forensic tools recover deleted files. Deleting also helps the prosecution prove guilty knowledge.

The defenses that work are built by fighting the elements above, supported by the chat logs, forensic examinations, a timeline, and what the accused did or didn’t do after the CSAM material arrived. The winning defenses aren’t the ones the accused has already gamed out in his head.

What an Accused Can Do to Help Himself

The waiting period in a military CSAM investigation is months, sometimes more than a year. A few bases have their own digital forensic examiner at the law enforcement detachment. Most don’t. Air Force devices go to the Defense Cyber Crime Center in Maryland and get in line. Other services follow the same drill, using a variety of different labs, with rare exceptions like Bragg CID, which has its own DFE. Labs are backlogged regardless.

What is the Airman doing during this period? He works and carries on the best he can. If he’s in the Air Force, he’ll have a defense counsel he can check in with from time to time, but he shouldn’t expect proactive advocacy at this stage. If he’s not in the Air Force, he’s entirely alone: no defense counsel will be assigned before charges. That’s why you need a civilian military attorney during the pre-charge stage: someone who will be assertive, checking for updates, advocating with OSTC, addressing your anxieties, and answering your questions.

Almost all military JAG defense offices, and civilian military lawyers, will counsel the client to stay out of sight, avoid discussing the case, and check back when charges are served, as if there’s nothing to do but sit and wait. In fact, this waiting period is when a defense attorney might have the most leverage. OSTC has the authority to charge or to decline, and that decision is influenced by what they know when they make it. A civilian attorney who gets to OSTC early, before the report of investigation is finalized, can put context in front of the prosecutor that the agents might omit from briefings. A good example that occurs often in military cases: The Romeo-and-Juliet scenario. A 20-year-old Airman with a 17-year-old girlfriend whose photos are on his phone is technically guilty of a CSAM offense, and OSTC can prosecute it. Or the 19-year-old Airman whose girlfriend sent him “pics” when they were both 17; as soon as the Airman turns 18, he’s an adult in possession of CSAM. OSTC might not feel great about prosecuting that case. Our job is to make them decide not to. Every day the prosecution spends building the case without a defense attorney in the way is a day the charging decision becomes more inevitable.

Why McGuire Is Representative

McGuire is in the New Jersey ICAC enforcement zone, which documented a 74 percent jump in CSAM-related arrests between 2020 and 2024. The base population is young, overwhelmingly enlisted, and the bars and population density that anchor social life at less-rural installations aren’t there. App-based contact can fill the social void. That’s the pattern ICAC stings and platform reporting programs are built to catch.

The same dynamic plays out at almost every base, especially bases performing and supporting a high ops tempo. An OSI investigation that starts from an ICAC tip at McGuire follows the same arc as one at Lakenheath or Pendleton, and the defense imperative should be the same: get to OSTC early, before the charging decision, with the context prosecutors might not have.

Gagne, Scherer & Associates: Experienced Court-Martial Defense Lawyers

If you’re under investigation for a CSAM offense, don’t wait. And don’t explain yourself to anyone before you’ve talked to the civilian court-martial defense lawyers of Gagne, Scherer & Associates at (224) 935-6172.

Military sex offense law under the UCMJ covers a dozen or more distinct crimes spread across six different sections of the code. Contact offenses allege physical sexual conduct and are prosecuted under Article 120 for adults, Article 120b for children, and Article 134 for sexual harassment. A single incident can produce half a dozen overlapping charges, and the table below shows what the government has to prove for each one. Conduct that doesn’t look sexual on its face can still be charged as a sex offense under Article 120, like hazing. In many sexual assault cases, and some cases involving minors, an accused might be able to mount a defense based on an honest mistake about consent or age. OSTC, the military’s congressionally-mandated elite prosecution corps, controls charging, and that’s where the former JAGs of Gagne, Scherer & Associates begin working the case, before charges are even preferred. And four 2026 sexual assault decisions show how often the prosecutors, judges, and appellate courts who run this system get the law wrong.

Contact Offenses: Articles 120, 120b, and 134

Contact offenses allege physical sexual conduct, not just rape. Article 120 covers adults. Article 120b covers children (anyone under 16). Article 134 covers sexual harassment, which can involve physical conduct but isn’t a registerable sex offense.

The table below shows the contact offenses and what the government has to prove.

Contact Sex Offenses Under the UCMJ: Key Differences

 

What the Table Doesn’t Tell You

The table explains what differentiates the crimes under the law. Here’s what you need to know about how these laws work in real cases:

• The three Article 120 sexual assault theories (without consent, sleeping/unconscious, incapable of consenting) all carry the same maximum punishment but require proof of different facts. The government can charge all three for the same incident.
• Article 120b child offenses don’t require proof of lack of consent.
• For children under 12, the offense is “strict liability” when it comes to age. Mistake of fact about the child’s age is no defense. For children 12 to 15, the accused can raise a reasonable belief that the child was 16 or older.
• “Groped” is used here to mean any unlawful sexual contact.
• Sexual harassment under Article 134 became a separate chargeable offense in 2022. It is a covered offense under OSTC’s purview, but it isn’t a registerable sex offense.

Another thing these tables don’t show is how conduct that doesn’t look sexual can become a sex offense under the UCMJ. Think of them as stealth sex offenses. A testicle twist on the obstacle course. A nut tap in line at the chow hall. Hazing by humping a private area through the clothes. If the government can prove the act was done with intent to abuse, humiliate, harass, or degrade, it fits the statutory definition of sexual contact and can be charged as abusive sexual contact under Article 120. And keeping intimate images from a prior teenage relationship: the day you turn 18, those files from a teenage girlfriend become CSAM under federal and military law.

The Mistake of Fact Defense in Military Sex Cases

Mistake of fact comes up in two contexts under military sex offense law: belief in consent and belief of age.

For proving consent in Article 120 adult cases, the accused can argue that he honestly and reasonably believed the victim consented. The belief has to be both “honest” and “reasonable”: you believed it at the time, and a reasonable, sober person would have too. The law doesn’t punish genuine mistakes.

If you’ve been dating someone for six months, you know how she initiates, how she says no, what her body language looks like when she’s into it and when she’s not. A judge or panel can consider that history when deciding whether your belief in consent was reasonable. But the facts of the specific incident can override all of it (verbal or physical resistance, too drunk, etc).

When it comes to age in Article 120b child cases, a mistake of fact about a child’s age is no defense at all for children under 12. For children 12 to 15, the accused can argue a reasonable belief that the child was 16 or older, but the accused carries the burden of proving it. Context is everything. You meet a young-looking girl in a bar that checks IDs at the door, it’s reasonable to believe she’s at least 21. You meet that same girl at the beach, and she mentions getting her driver’s permit tomorrow, it doesn’t matter how old she looks.

OSTC’s Role in Prosecuting Sex Offenses

Every offense is a “covered offense” under OSTC’s mandate, which means the Office of Special Trial Counsel controls charging decisions. OSTC prosecutors decide whether a case goes to a general court-martial or gets sent back to the command for a lesser disposition.

OSTC’s focus is its winning percentage. They’re evaluating whether the evidence supports a high likelihood of conviction, not just whether probable cause exists. That evaluation creates an opportunity for the defense, before and during the preliminary hearing process. Gagne, Scherer & Associates advocates with OSTC during the investigation phase, before charging decisions are made, and works to put favorable evidence and weaknesses in the government’s case in front of the prosecutors who will decide whether to go forward.

Even Judges Misunderstand UCMJ Sex Offense Laws

If you’re struggling to understand the differences between these offenses, you’re not alone. The prosecutors who write the charges, the judges who oversee the cases, and the appellate courts that review trials are struggling with the same thing.

In January 2026, CAAF issued three opinions on the same day correcting the Air Force Court of Criminal Appeals on how prosecutors try to prove lack of consent when the victim was asleep or intoxicated: United States v. Moore, United States v. Hennessy, and United States v. Serjack. A fourth case from the Army CCA threw out part of a conviction because the military judge’s verdict was too muddled to review (United States v. Williams-Clark, sentence reduced from seven to five years). Prosecutors picked Article 120 theories that didn’t match their facts, lower courts misapplied the precedent, and a trial judge issued a verdict nobody could decipher. Alcohol was at the center of all four cases. In Article 120 UCMJ sexual assault cases, memory, alcohol, and cognitive bias are frequently misunderstood by everyone in the courtroom.

Some defense counsel will read these opinions, think they see a similar mistake in their own case, and waive the Article 32 hearing to preserve a charging defect, gambling that the government won’t notice. But the government will notice. Waive your preliminary hearing and OSTC will wonder why and take a fresh look at its charge sheet and fix it one way or another. Your lawyer will have traded the best chance to derail the case for a technicality that won’t survive. Never waive your Article 32 unless you’re getting a concrete benefit in writing that’s greater than what you could have gotten through a preliminary hearing.

Gagne, Scherer & Associates: Experienced Military Lawyers

Article 120 and 120b cases produce some of the longest sentences in the UCMJ and the most aggressive charging behavior from OSTC. The differences between these offenses look small on a chart and play out as decades of confinement at trial. If you’re under investigation or facing charges for any offense covered on this page, contact Gagne, Scherer & Associates at (224) 935-6172. You’ll speak with an experienced military lawyer, not a paralegal, not a receptionist.

Primary Legal Sources

• 10 U.S. Code § 920b – Art. 120b. Rape and Sexual Assault of a Child. Legal Information Institute, Cornell Law School.
• United States v. Moore, No. 25-0110. United States Court of Appeals for the Armed Forces. Decided January 23, 2026.
• United States v. Hennessy, No. 25-0112. United States Court of Appeals for the Armed Forces. Decided January 23, 2026.
• United States v. Serjak, No. 25-0120. United States Court of Appeals for the Armed Forces. Decided January 23, 2026.

ICAC sting cases are mushrooming across every service. Shaw Air Force Base is one of the clearest examples: the cases occur there often enough, and follow a defined enough pattern, to illustrate what happens everywhere. A good Airman slowly morphs into a court-martial defendant through choices he makes, in a sting designed to get him to make exactly those choices. The military prosecutes these cases aggressively, but the defense can challenge the ICAC undercover standards if the attorney knows what to do. ICAC cases take a long time to develop, which is both the danger and the opportunity, and there are things an Airman should do, and not do, before the charging decision is made.

How a Good Airman Slowly Morphs into a Court-Martial Defendant

These cases don’t start in a parking lot. They start in a chat room or an app while an Airman is off-base in Sumter or Columbia, using a personal phone on a civilian network.

The South Carolina ICAC Task Force, usually the Sumter County Sheriff or SLED, spots the target first. They do the heavy lifting before the Air Force knows the case exists. Eventually, the case gets transferred to OSI Detachment 212 at Shaw Air Force Base. What began as a civilian sting becomes a UCMJ investigation headed for a court-martial.

The hand-off is where things get messy. Evidence gathered under state protocols has to meet military standards. The rules governing how evidence is gathered differ depending on who gathered it and when. An investigation that began in state jurisdiction and migrated to military jurisdiction presents questions about what standards applied at each stage, what was preserved, and what the hand-off documentation shows. Those questions require an attorney who understands both sides of that jurisdictional line, who can identify when abuses occurred, whether a warrant can be challenged, and if an entrapment defense exists.

Regardless of what the public docket shows at any time, dozens of ICAC cases involving Airmen from Shaw can be in development. Cases involving CSAM and cases involving sting operations. The cases that appear on the public docket are formally in the court-martial pipeline. But there are always more coming. Records are being harvested. Phones, computers, and gaming consoles are still in the queue awaiting forensic examination at the lab in Maryland while the Airman goes about his duties with no real sense that things are about to turn for the worse.

ICAC Sting Operations Step-by-Step

 

How ICAC and CSAM Investigations Develop

ICAC, the Internet Crimes Against Children task force network, runs two distinct types of investigations: sting operations targeting adults who solicit minors online, and CSAM cases involving the possession, distribution, or production of child sexual abuse material. Shaw Airmen show up in both.

These investigators (federal, state, and at Shaw, OSI working in coordination with regional task forces) are trained to be patient. They present themselves as bait. And wait.

The profile is designed to hit the specific triggers of a specific kind of man: lonely, sexually frustrated, susceptible to the attention of a younger woman who seems genuinely interested in him. The platform is selected for its demographics: apps and sites where young people actually congregate, and where adults targeting minors lurk. The cop’s undercover persona is built with enough detail to feel real: a name, a backstory, photographs of an actual law enforcement employee taken with written consent. The persona starts at age eighteen, or ambiguous about age. The conversation starts with flirting.

The detective’s job is to receive, not to lead: the national ICAC Operational and Investigative Standards mandate it. The detective can’t initiate explicit content, can’t push toward a meetup. The target has to walk into the trap himself, because if the detective leads him there, the case has an entrapment problem that a competent defense attorney will exploit at trial. Every sexual turn has to come from the target. By the time the conversation has gone somewhere explicit, the target has already established his predisposition: he initiated, he escalated, he wanted this. Then she gets younger.

Why an Airman ignores the “I’m actually 15” exit

The detective offers an easy exit. The “minor” admits she lied about her age and says she’ll understand if he wants to stop. In twenty-five years of military justice casework, we have never seen an adult take that exit.

How asking for an image leads to a ten-year sentence

“Send pics.” The image request is where the ten-year low end comes in. Asking a person he believes to be a minor to send a sexually explicit image is an attempt to produce child pornography military law. The attempt is legally equivalent to the completed act.

Why going quiet and circling back makes the case worse

Sometimes the conversation goes quiet. The detective doesn’t respond for a day. A week.

Patience pays off.

The Airman who sends a follow-up message (You there?… How did your test go?…) has just confirmed his intent a second time, flushing away any argument that he merely got swept up in a moment, seduced by the cop’s persona. It’s proof the Airman cooled off, thought about it, and came back. A case that might have been borderline, might not have been worth prosecuting, is a sure thing for OSTC now.

Why agreeing to meet is the worst decision of all

When the adult shows up to meet with one of these “minors,” he’s never empty-handed.

In case after case, the man who drives to the Chick-fil-A or the mall parking lot brings a bag. A brown paper lunch sack. Inside: more proof of criminal intent. Condoms, lubricant, whatever else the conversation suggested he would need. He thought about what to bring. He assembled it. He put it in his car. Under United States v. Ker, decided by the Air Force Court of Criminal Appeals in 2020, driving to the agreed location at the agreed time with those items in the vehicle isn’t mere preparation. It is a substantial step. It is a direct movement toward commission of the offense. The crime is complete before he gets out of the car.

OSI is already there. They have been there for an hour. The unmarked vehicles are positioned. The agents know what he is driving because he told her what he was driving so she could find him in the parking lot. He parks. He waits. He’s arrested.

How the Military Prosecutes in ICAC Cases

If he requested an image, the charge is attempted production of child pornography with a ten-year low end. If he sent his own explicit images during the conversation, that’s another charge. Some of these Airmen also send a picture of themselves to accompany the request. Sometimes the picture is taken in uniform, with rank insignia visible: a service member identifying himself as a service member to a person he believed was a fourteen-year-old girl. A catastrophic decision that will be measured in years.

The first charge alone carries a ten-year low end. From there, the government will add as many charges as it can, which is called “stacking.” The higher the stack, the more fear it creates. Fear drives plea negotiations. Plea negotiations driven by fear produce outcomes the government controls.

The time for the attorney to get involved is before OSTC has decided to charge the case. A civilian defense attorney who gets to OSTC early, before the ROI is finished, can influence that decision by adding context that agents won’t relay, or by demonstrating deviations from standards the prosecutor might not be aware of. Every day OSTC spends building this case without a defense attorney in the way is a day their charging decision becomes inevitable.

How the Defense Can Challenge ICAC Undercover Standards

ICAC investigations are governed by published operational standards. Those standards exist for good reasons: to prevent entrapment, to ensure that the target, not the detective, initiates and drives the criminal conduct. When cops deviate from those standards, the defense gets opportunities.

Standard 8.6 requires that “during online dialogue, officers shall allow the Investigative target to set the tone, pace, and subject matter of the online conversation.” The defense has to cross-examine the undercover detective in exacting detail on what he initiated, what he pushed, and at what point his conduct crossed from observation into inducement. The chat logs are the entire record. If they show the target driving every escalation, the entrapment argument will be DOA. If they show the detective forcing the issue, the defense will have something to work with.

Construction of the fake profile is governed by Standard 8.5. Photographs used in undercover profiles must depict a law enforcement employee who gave written consent at age eighteen or older, regardless of how young the photograph itself depicts them. Raising profile violations at trial is tactically tricky because it can confirm to the panel that the persona was meant to look like a child, undercutting any defense argument that the defendant thought she was an adult. Still, this has to be examined in every case involving a bait persona.

Why These Cases Take So Long to Develop

When OSI agents at Shaw seize devices, they get shipped off to the Defense Forensics and Crime Laboratory in Maryland, or to Homeland Security Investigations. The evidence doesn’t go to the SLED Digital Forensics Center in Columbia, forty-five miles down I-20, which has the capability and already has a working relationship with the same investigators who built the case. OSI can’t use a state lab for its evidence, so the device enters a long queue out of state regardless of what’s available locally. So an investigation that had been moving forward becomes a file waiting on results from a backlogged lab. Cases will sit idly for months. Sometimes more than a year. During this time, the Airman hears nothing. He spends his days stewing in ambiguity and anxiety. His attorney shouldn’t be. That waiting period is an opportunity to get to OSTC, learn where the case stands, and start making the easy win they’re imagining look like hard work.

What an Airman Should Do Before the Charge Sheet Exists

• Don’t talk to OSI
• Don’t explain yourself to your chain of command
• Don’t trust your inner circle
• Don’t delete anything
• Don’t try to contact the “minor” again
• Do call a civilian defense attorney
• Do call your parents or someone who can help you pay for an attorney

These cases need a particular kind of defense lawyer, and they’re harder to find than they should be. Some criminal defense attorneys won’t take them because they don’t want to be associated with this kind of case and they don’t want to sit next to the client. In the universe of criminal law, this is the one case that demands a lawyer with the legal, social, and analytical gifts to win. Don’t hire local. Hire the best lawyer you can find, wherever he is.

If law enforcement has made contact, or you think they are about to, don’t say a word to anyone. Not OSI, not CID, not NCIS, not CGIS. Not your commander, not your first sergeant, not your friends. Call the experienced military lawyers of Gagne, Scherer & Associates first: (224) 935-6172.

If you or someone you know is facing an Article 120 sexual assault allegation in the military, you’re against a massive, coordinated campaign to get a conviction. The complainant gets an entire institutional support apparatus: advocates, individual legal counsel, expedited transfers, and command support. The accused gets an attorney, someday. Congress mandated the creation of a prosecution corps, OSTC, specifically to increase conviction rates in military sexual assault cases. The examples below come from a real visit to Cannon Air Force Base, but the sexual assault grievance industry works like this at every U.S. military installation worldwide. A great attorney can overcome all of the bias.

How the System Treats the Accused vs. the Complainant

Picture this scenario, borrowed from similar real-life cases. A female servicemember makes a sexual assault allegation against a male servicemember. Within weeks, she’s transferred to a coastal base of her choosing under the military’s expedited transfer program. She has a SARC advocate. She has a Special Victims’ Counsel, a military attorney whose only job is to protect her interests. She has command support at her new installation. She has OSTC overseeing the prosecution, with a boss closely supervising every decision. At least one base-level JAG assigned to the case, with paralegal support and input from the Staff Judge Advocate.

The accused is sitting in the Roosevelt County Detention Center in Portales, New Mexico. A rural county jail. He’s been there for months and will stay there until trial.

The trial is set for August. But the complainant has a cruise booked that week. So OSTC asks the judge to push the trial to October. Why not September? Because the prosecutor is on paternity leave the entire month. The accused stays in jail. The complainant is on a cruise and the prosecutor is home with a newborn and the accused sits in a cell in rural New Mexico, more than a thousand miles from the complainant, no threat to her, waiting for everyone else’s calendar to clear.

Complainant vs. Accused Resources in Article 120 Cases

 

SARC and SAPR Propaganda at Military Installations

The attorneys of Gagne, Scherer & Associates recently visited the lobby of the Mission Support Group building at Cannon Air Force Base in Clovis, New Mexico. The SARC office sits just inside the entrance, prime command real estate, not some back office in a separate building. The lobby is wall-to-wall propaganda. Pamphlet racks, a kiosk, posters, bulletin boards, a banner.

• “If Someone You Know Is Sexually Assaulted”
• “Stop Sexual Assault”
• “Sex, Communication and Respect”
• “Alcohol, Drugs & Consent”
• “15 Things Every Man Needs to Know About Date and Acquaintance Rape”
• “I’m All In — Men Standing Against Sexual Assault”
• “Understanding Drug-Induced Sexual Assault”
• Cannon AFB SAPR 24/7 Hotline card
• April Sexual Assault Awareness Month flyers and banners
• An anonymous encouragement board for unidentified victims of unverified allegations
• “End the Silence”
• “Arise Sexual Assault Services” crisis hotline information

What’s Not in That Lobby or any Lobby:

• The Area Defense Counsel’s phone number
• A pamphlet about what to do if you’re falsely accused
• Acquittal rate data
• Anything about the presumption of innocence
• Anything about confabulation or alcohol-related memory distortion
• Anything about the documented pattern of false allegations in divorce and custody disputes

The entire presentation is designed to brainwash the potential jury pool. The messaging isn’t subtle about its target audience. The pamphlets are addressed to men. The campaign is designed to shame men into believing they create the conditions for sexual assault and to trigger a protective instinct in the rest, the white knight impulse that makes every male servicemember a potential ally of the complainant before anyone’s heard the other side. There’s a reason Gagne, Scherer & Associates prefers to have women on its sex assault panels.

One pamphlet deserves special attention. The “I’m All In” brochure, says “a man may not even realize he is committing sexual assault, though he will still be liable for it.” They’re priming panel members to apply strict liability instead of following the law.

This is not unique to Cannon. Every installation in the Department of Defense runs the same program with the same materials, the same command thrust, and the same high-visibility placement. April is Sexual Assault Awareness Month across the entire military, which means an entire month of messaging that presumes guilt based on accusation alone (the poster is titled, “#notjustapril”). Even the urinals on most installations have info cards at eye level pushing the same message. Every potential panel member on every base gets this programming every year.

The propaganda has congressional and legal support. Congress created the Office of Special Trial Counsel, OSTC, for one reason: the conviction rate in military sexual assault cases wasn’t high enough. OSTC exists to prosecute these cases more aggressively, with dedicated resources, outside the normal chain of command. The Special Victims’ Counsel program gives every complainant a personal attorney. The SARC and SAPR networks provide immediate advocacy and support. Expedited transfers get the complainant off the installation while the accused languishes in the county jail and waits for the chance to clear his name, which might not come for a year or more.

How a Civilian Military Lawyer Can Overcome that Bias

Even with all of this conspiring against the accused, military sexual assault cases have high acquittal rates. They’ve had high acquittal rates through every congressional campaign to bring them down, including the OSTC era. You can expect new mandates before long. What nobody stops to consider is just how high the ratio of false or unprovable accusations must be for those acquittal rates to be so stubborn. The “why would they lie” and “they wouldn’t lie” assumptions at the heart of this propaganda campaign are exactly what’s wrong with it. They would lie. They do lie. And sometimes it’s simply impossible to know what happened because memory failures and alcohol get in the way. The solution isn’t to keep undermining the presumption of innocence, but that’s what they keep striving for.

In a case like this, you need to hire an experienced military lawyer from Gagne, Scherer & Associates. A good attorney knows how to present a defense at trial. But a great one does more than that. He knows how to line up and deploy the right expert consultants. He knows how to intercede early in the case and advocate through OSTC to cast doubt on its viability before charges are ever served. Get a deferral. Get a strong recommendation from the preliminary hearing officer if the case reaches an Article 32. Trial is a last resort, and your attorney needs to be great at that too. But there are many ways to win Article 120 cases. They can also be won before they ever get charged.

That lobby at Cannon, with its posters, pamphlets, anonymous encouragement board, and SARC office, is in the same building as the ADC office. Now imagine you’re the accused. To see your attorney, you walk past all of that nonsense. Past your fellow airmen, and potential panel members, who’ve been reading the propaganda several times a day, every day. It can feel hopeless, even on your way to see your attorney. It’s not.

If you’re facing an Article 120 allegation at Cannon or anywhere else, call us. The former JAGs at Gagne, Scherer & Associates have been outmaneuvering your adversaries for over 20 years. Call (224) 935-6172 and speak directly with one of our experienced military lawyers.

In a single 2026 opinion, the Court of Appeals for the Armed Forces, the highest military court, identified 22 forms of prosecutorial misconduct in closing argument alone, catalogued decades of abuse, and then affirmed the conviction anyway. Which it has been doing for decades. CAAF has a long history of complaining about prosecutorial misconduct and doing nothing to put an end to it. Prosecutors can get away with almost anything, even calling the accused a pig. By affirming the conviction in this case while publishing a long list of the most egregious forms of abuse, CAAF sent a clear message to everyone currently under investigation: no one is coming to save you.

Courts See the Abuse, Get Mad, Fix Nothing

Prosecutors aren’t allowed to tell a panel when a witness should be believed, but they do it. Prosecutors are forbidden from suggesting the accused has an obligation to prove his innocence, but they do that too. They call the accused names, mock defense attorneys, misstate the law, misstate the evidence, and refer to evidence the judge told them not to. And they do it because they get away with it.

In United States v. Matti (2026), the highest military court identified 22 violations (a non-exhaustive list) prosecutors commit to increase their odds of getting a conviction. After cataloguing decades of abuse, and ranting at prosecutors and the judges who allow the abuse to continue, the court affirmed the conviction anyway.

But this isn’t an end-of-life problem for a case. The problem goes back to the womb. It begins the moment a suspect is read their rights. Our post on Article 31(b) and our Interrogation Survival Kit show how investigators use trickery, mind games, and institutional indifference to get people to sign away their rights without realizing it. If you’re under investigation for an Article 120 offense, a CSAM allegation, or any offense referred to the Office of Special Trial Counsel, the time to retain counsel is before you speak to anyone.

“Because of the persistent problem of trial counsel using improper arguments during courts-martial, the Court offers the following non-exhaustive compendium of instances when this Court has identified areas of concern. Perhaps it will provide some helpful guidance regarding the types of improper argument that trial counsel must avoid, that defense counsel should consider objecting to, and that military judges ought to monitor.” — Court of Appeals for the Armed Forces, February 2026

CAAF has documented these stunts for decades without doing anything to stop it. The court seems more concerned about bad manners than an unfair trial.

The Matti Appendix is a monument to how high the odds are stacked against an accused. The court calls the misconduct “troubling.” It has been troubled for decades. It recommends that prosecutors and judges read the appendix carefully, and actually asks judges to confirm on the record that counsel have done their homework before closing argument begins. And then it affirms the conviction.

Message to the accused: No one is coming to save you.

So what can you do? You can’t wait for CAAF. The institutional bias needs to be impeded from the start and at every opportunity. The first thing you need to do is grasp the size of the problem.

A note before we go further. The Office of Special Trial Counsel prosecutors we deal with regularly are professional, prepared, and play it straight with us. We have found them to be ethical and cooperative.

What follows is about the system, not the people we know. While we still hear stories and more cases will end up in the next CAAF jeremiad, the structural bias we describe here predates OSTC and runs deeper than any individual prosecutor’s conduct. CAAF’s non-exhaustive compendium, referred to here as the Matti Appendix, catalogs recurring categories of improper argument that keep happening because they rarely cost the government a conviction.

22 Forms of Prosecutorial Abuse in Closing Argument

1. Expressing Personal Beliefs: Prosecutors aren’t allowed to tell the jury what they think about the case. Improper: Trial counsel improperly expressing a personal opinion by saying “it’s so clear from the urinalyses that [the accused] was doing it over and over” and the accused “clearly is a weekend cocaine user.” Panels might take those opinions as evidence.
2. Improper Vouching: Often heard in sexual assault cases, comments like this: “She wouldn’t put herself through all of this if she was making it up. She’s not lying.” They can’t tell the panel a witness is telling the truth. That’s for the panel to decide. It doesn’t happen only in Article 120 cases, though. It can happen in any kind of case. The problem is the person doing the argument.
3. Offering Personal Views: Trial counsel can tell the panel what the evidence shows. He can’t tell them it feels credible or “rings true.” That’s for the panel to decide. Items 1 through 3 are driving at the same problem: the prosecutor using his stature to persuade the panel.
4. Matters Outside the Record: In addition to common sense and logic, which panels are expected to use, evidence admitted in court is what counts: “When trial counsel here discoursed on the practices and fantasies of rapists, and when he described the attitudes of unrelated rape victims he was not drawing upon legitimate inferences from evidence of record or appealing to the common sense of the court-martial. He was inviting the members to accept new information as factual, based on his authority.”
5. Commenting on Constitutional Rights: A panel can’t be told to infer guilt because a person used their rights, like refusing to consent to a search. “What is he hiding?”
6. Accused’s Right to Silence: Prosecutors sometimes use the phrase “uncontradicted evidence” to remind the panel that the accused didn’t talk to investigators.
7. Right to Counsel: Asking for a lawyer isn’t a confession.
8. “Failure” to Testify: Deciding not to testify (it might help if courts stopped calling it a “failure”) is a right. Prosecutors are prohibited from arguing it means the defense has something to hide. Items 5 through 8 are essentially the same: don’t use the accused’s rights against him.
9. Misusing the Guilty Plea: An accused facing multiple charges has the right to plead guilty to some but fight others. Admissions made during a guilty plea for one charge can’t be used to prove a contested charge.
10. Burden Shift: The government has to prove guilt. Any suggestion that the accused should be expected to prove innocence is improper.
11. Personal Attacks: Insults meant to prejudice the panel against the accused.
12. Attacking Defense Counsel: Insulting the defense attorney. “Just another slick defense counsel …”
13. Attacking the Accused: Name-calling, like labeling the accused a predator.
14. Disparaging the Defense: Characterizing the defense’s theory as a “conspiracy theory.” Items 11 through 14: preserve civility and decorum, no matter what kind of case it is.
15. Asking a court-martial to base its verdict on the probable effect on relations between the military and the civilian community: “This is a tremendously important case. As I told you before, this case is important because we’re trying a man who is here accused of killing a Philippine national, at which we’re using mostly Filipino witnesses. I think that we can show everyone concerned, everyone concerned with this case, that we can ensure that justice will be done.”
16. Misstating the Facts: Stick to the record. Again, panels can only consider what gets admitted into evidence.
17. Misstating the Law: Attorneys misstate the law often. Not always on purpose. Example: Consenting to sex is analogous to enlisting in the Navy or getting plastic surgery. No it’s not.
18. Guilt by Association: Look at the company he keeps. Is it any wonder?
19. Citing Other Cases: Stick to the facts of this case and this accused.
20. Citing Excluded Evidence: Referencing evidence the judge excluded.
21. Citing Command Policy: A court-martial is not a tool for executing command policy.
22. Diverting the Panel: Once again, stay in-universe. For example, it’s improper to argue in a drug case that the innocent-ingestion defense should be rejected to discourage other soldiers from raising it because drug use will run rampant and put the panel members’ own lives at risk.

The Matti Appendix is the judicial version of the old Robin Williams bit about the unarmed British constable: “Stop! Or… or I’ll say stop again!”

Decades of CAAF Inaction: Three Embarrassing Truths the Matti Appendix Reveals

The Court acknowledges the misconduct. It catalogues the abuse with great care and robust citations, and expresses frustration that it has to repeat itself. And then: it affirms the conviction.

Nearly every time, it affirms. In the 19 cases the Matti court lists as extreme instances of misconduct, it provided relief in just three.

The worst misconduct leads to consequences for the government just 15% of the time. With all the power it has, CAAF still can’t bring itself to let (what it believes to be) a guilty man go free, even if it means vindicating the rights it just finished calling fundamental and its own credibility.

Blackstone said that it’s better for ten guilty men to go free than for one innocent to suffer, which seems to be what CAAF is aiming for, and failing to hit. The remedy requires principled action by CAAF and the service courts. Let the guilty man go. Let another go. And another, as many as it takes. And explain why it’s being done. Call the prosecutors and trial judges out by name. Watch what prosecutors and judges do if that happens. Within a year or two the problem would be solved. But CAAF can’t bring itself to live out its stated ideals.

1. Unenforced rights aren’t real rights.

A court that spots a significant due process violation, finds the violation harmed the accused, and then affirms the conviction is saying the presumption of innocence is a fiction.

2. CAAF sacrifices Justice for Appearances.

By issuing a checklist instead of a reversal, CAAF is acting as a human resources department for the JAG Corps. They are managing the optics of misconduct (“You’re making us look bad, so please stop doing that”) rather than upholding the rights of the accused and everyone else targeted by the military justice system.

3. The Appendix is self-absolution.

The appendix is a strongly worded memo to people who have spent forty years ignoring strongly worded memos. CAAF gets to feel principled without paying the price of actually being principled.

Real-Life Examples of Prosecutorial Misconduct

In United States v. Voorhees, the trial counsel bragged about his rank, his travels, his commitment, and his expertise, while mocking the accused and his attorney.

Panel selection: self-credentialing: “I’m [—]. I’m a senior trial counsel assigned to [–] Air Force Base. In that capacity I travel around the world, between 200 and 250 days a year, prosecuting the Air Force’s most serious cases.”

Attacking defense counsel: “misplaced lying” “defense counsel’s imagination is not reasonable doubt.”

Attacking the accused: “perverted,” “sick,” “narcissistic, chauvinistic, joke of an officer” “Not an officer, not a gentleman, but a pig.” “Disgusting. Disgusting. Deplorable. Degrading. That’s the nature of the conduct that the accused committed. That’s the nature of this man.”

Vouching for witnesses: “Technical Sergeant [–] is an outstanding airman; an outstanding noncommissioned officer in the United States Air Force.” “That was his perception. That was the truth.” “rely entirely on Senior Airman [–’s] credibility. Hang your hat there, because you can. Because that airman is credible. She testified credibly; she told you what happened to her.” “[–‘s] not lying. It’s the truth. It’s what happened.”

Personal opinion on guilt: “[W]e win. Clearly.” “I’m not in the business of convicting innocent people, but this man is guilty.” “[Appellant] is without a doubt guilty.”

Rebuttal self-vouching: “Members, I don’t go TDY and leave my family 250 days a year to sell you a story. I don’t do that.” “I’m not going to apologize for becoming emotional when talking about a Major who sexually assaulted a Senior Airman.”

Every one of those was found to be a clear and obvious error. Relief given: none.

That’s an ugly but realistic view of the contestants in your case: You, the pig, versus Them, the angels.

Some of it is calculated to do more than persuade the panel. A prosecutor who knows a line is improper will cross it anyway to draw an objection from defense counsel. Every objection makes the defense look like it’s hiding something. Win-win for the prosecutor: if the objection isn’t made, he gets away with it. If the defense objects, the panel wonders what the defense is so afraid of. And ultimately there’s no penalty for this bullshit, as CAAF has abundantly shown.

CAAF’s Inaction is the Final Act of Bias That Begins at the Start

It’s not just prosecutors with “top cop” fever. Voorhees isn’t an outlier.

It’s a demonstration of what the system permits, because it’s what the system is designed to produce. For example, the SARC mindset drives the whole investigative process. It’s why Congress constantly rewrites Article 120 to make convictions easier. It’s why OSTC was created. Investigators are permitted to lie to you, it’s part of the routine, but if you lie to them you can be charged with a crime for it, even if it’s in reply to one of their lies.

The whole system is designed to pulverize you once you’ve been accused. You have rights and they’re enforceable, but you can’t place your faith in the other side to play fair.

This is why the first call after you learn of OSI, NCIS, CGIS, or CID being involved should be to a defense attorney. Don’t call your parents. Don’t call a friend. Call an attorney.

FAQs

What does prosecutorial misconduct mean for my case if I haven’t been charged yet?

It demonstrates the institutional mindset. The presumption of innocence is required under the law, but for most of your case that’s not how things will be. People ask if hiring a lawyer will make them look guilty; we remind them they already look guilty, which is why they’re calling us. Look at the investigative interview. Command tells the accused he has a “meeting.” The notice often comes on a Friday for a meeting on Monday to give him the weekend to sweat. He’s escorted to the investigators’ office by a member of his chain of command. He walks into a room with agents who have already decided he is guilty. They use a series of psychological tricks to get him to confess. When he’s released, it’s to his command escort. They don’t treat complaining witnesses this way. They give complaining witnesses extra benefits and an expedited transfer to their base of preference. And if you ultimately get vindicated, they don’t go back and prosecute your accuser.

What’s the best opportunity to head prosecutorial misconduct off before trial?

As early as possible but no later than the Article 32 hearing. Treat the Article 32 preliminary hearing like your trial, so you have the best odds of avoiding trial. You don’t want to be cited in the appendix the next time CAAF gets fed up.

Can a defense attorney actually do anything before trial?

Yes. Your attorney needs to be in regular contact with the prosecution, your command, and investigators, presenting favorable evidence and seeding doubt before decisions are made. If you and your attorney stay hidden and silent, your case will get charged. If you waive your Article 32 hearing, you’re just inviting them to charge you. The days of hiding out and hoping things will blow over are dead. OSTC cares about its winning percentage. Your attorney needs to make OSTC see a loss coming.

Why does it matter who I hire if the system is so stacked against me?

You don’t hire a lawyer to mitigate the damage of a rigged trial; you hire one to kill the case before the government refers it. Cases that get derailed never make it to a closing argument. You hire someone on day one so you never have to find out if CAAF thinks the violation of your rights was “harmless.”

What is the OSTC and does it fix this problem?

The Office of Special Trial Counsel handles the most serious UCMJ cases: Article 120 sexual assault allegations, child sexual abuse material, Article 128b domestic violence, and other covered offenses. Its independence is an improvement, but we still hear Matti-esque horror stories from the field.

Why hire civilian defense counsel when military defense counsel is free?

Service members facing Article 120 investigations or OSTC referrals need attorneys who have handled and won these cases, know how to communicate with OSTC, and have a long record of favorable recommendations from preliminary hearing officers. Detailed counsel are often early in their career, have military and training obligations, and also waive Article 32 hearings at an alarming rate.

What should I do if OSI, NCIS, CGIS, or CID contacts me?

They won’t contact you for an interview. That will come as an order from your commander. You have to go to the meeting but you can’t be compelled to talk or give up any other rights. If you’re told you have to meet with investigators, contact a civilian UCMJ defense attorney immediately. Don’t talk about your case with anyone else in the meantime, and be wary of calls and texts that come from an accuser or anyone else that seems to be a bit out of the blue. Those calls and texts will often be from someone sitting with investigators. We counsel our clients to have a healthy amount of paranoia.

Most service members facing serious charges have no idea that the government is required to fund expert witnesses for the defense team.

If an expert is necessary for you to mount an adequate defense, the government has to pay for one. Understanding how that works, and what happens when the government refuses to do the right and lawful thing, is one of the most important things you can learn about how serious courts-martial are defended.

What the Government Brings to the Fight

OSTC doesn’t go to trial without experts. In Article 120 cases they use forensic psychologists to address victim behavior, memory, and trauma response. In drug cases they use toxicologists. In CSAM cases they use digital forensics examiners, and in cases involving child victims, pediatricians and child psychologists. In assault and homicide cases they use pathologists. These experts testify at trial but their participation begins long before then. They advise the prosecution during the investigation, shape the theory of the case before charges are even preferred, and arrive at trial with credentials designed to make the panel feel like the science is settled and a verdict of Guilty is a formality. 

A defense attorney who is not operating at that same level is not defending you. He’s a bystander watching his client get run over by a tank.  

The Constitutional Foundation

The right to a defense expert in a military case runs through three sources. Ake v. Oklahoma, a 1985 Supreme Court decision, established that defendants have a constitutional right to expert assistance when it is necessary for an adequate defense. United States v. Garries, decided by the Court of Military Appeals in 1986, translated that principle into military practice and set the test that military judges still apply today. Article 46 of the UCMJ adds the fairness argument: the defense is entitled to equal opportunity to obtain witnesses, and an expert the government has secured for itself and the defense can’t match creates an imbalance the Constitution doesn’t permit.

The Garries test has three parts. The defense must show why the expert is needed, what the expert will do, and why defense counsel can’t perform those services without the expert’s help. The defense attorney needs to address and answer all three questions with specificity. 

How the Request Works

A well-drafted expert request is a legal argument, and it has to be built from scratch for each case.

The first step is issue-spotting. That requires reading the file carefully, anticipating what the government’s theory and strategies will be and what science they will use, and knowing enough about the relevant field of expertise to recognize where the defense needs help. A lawyer who has never defended an alcohol-related Article 120 case might not know that the government’s forensic psychologist is going to testify about trauma bonding, confabulation, counterintuitive victim behavior, and memory consolidation. A lawyer who has been in the ring as often as we have knows exactly what is coming and knows which expert to call.

The second step is consultation. Before filing the request, experienced defense counsel will contact an expert in the relevant field for a preliminary consultation, often at no charge, to develop the argument of necessity. The expert helps counsel understand what the issues are, what testing or analysis would be required, what it will cost, and whether the request is supportable. That consultation also makes the request stronger, because counsel can represent to the convening authority or judge that a qualified expert (ideally one who is well known to everyone involved) has been briefed on the case and confirmed that additional expert assistance is necessary and will secure a fair defense in ways defense counsel can’t guarantee on their own.

The third step is intelligently making the request. The request has to satisfy all three Garries factors with specificity. It has to identify the expert, describe their qualifications, explain exactly what they will do in the case, set out the cost of pretrial work and, where appropriate, the cost of appearance at trial, and explain why defense counsel lack the specialized knowledge to perform those services without the expert’s assistance. On the cost question: counsel sometimes submits two requests, one for pretrial consultation and analysis, and a second for trial testimony once the pretrial work has confirmed that testimony is warranted. That approach protects the defense against a request that looks too expensive at the outset and gives the expert time to prove necessity before the bigger amount is made. The primary objective is to get the camel’s nose inside the tent. 

When the Government Says No

The government will often deny the request by default, as policy. Some convening authorities will only spend money on defense experts if they’re forced to. The defense should expect this stunt and draft the request so that it’s designed not just to win approval the first time but to build the record for what comes next.

If the convening authority denies the request, defense counsel brings the issue to the military judge as a motion to compel. The motion has to demonstrate that the denial violates the accused’s rights under Ake, Garries, and Article 46, and that proceeding without the expert would deprive the accused of the ability to present an adequate defense. If the judge denies the motion, the denial becomes an appellate issue. CAAF has reversed convictions where defense experts were improperly denied. The denial of a properly supported expert request is not a harmless error when the expert would have addressed a central issue in the case. 

The goal at this stage is to get the judge to (1) find that the expert’s assistance is essential to a fair trial, and to (2) order that if the government refuses to provide funding the trial will be terminated. The judge doesn’t have the authority to force the government to spend money, but the judge has power to abate the court-martial if the government won’t spend the money. 

The Expert’s Role Once Appointed to the Defense Team

Most people assume an expert’s job is to take the stand and testify. That’s only one part a good expert does. In most instances, the defense’s expert never testified even if attending trial. 

Once appointed, the expert reviews the file: the investigative reports, the government’s forensic analysis, the medical records, the service record, the mental health history, and anything else that touches on the issues they were appointed to address. They identify what testing is needed. They flag problems in the government’s methodology of forensic analysis. They tell counsel where the prosecution’s expert is vulnerable on cross-examination and what the literature says that the prosecution’s expert won’t volunteer.

In some cases, the expert will also advise on whether an RCM 706 mental health evaluation is appropriate. An RCM 706 board, known in the system as a sanity board, is a formal mental health review that examines the accused’s competency to stand trial and whether a mental disease or defect provides a defense. Most accused are found competent, and most don’t have a per se mental health defense. But the 706 review often produces something else: a detailed psychological and psychiatric history that can be a goldmine of mitigation at sentencing. That information is confidential. The prosecution doesn’t see it, and neither does the judge. Defense counsel review it and decide whether it helps. Sometimes the confidential report leads to a number of doors that are better left closed. Experienced counsel knows how to use the evaluation and when to leave it alone.

In most case types, the expert’s most valuable contribution is behind the scenes. They sit in the courtroom during the prosecution’s expert testimony, watching for misstatements, methodology problems, and overreach. They advise counsel in real time, passing notes and exchanging texts. They help prepare the cross-examination in the days before trial and refine it as the government’s direct examination unfolds. In a complex CSAM case with detailed digital forensics testimony, having an expert in the room who can catch a methodological error the government’s witness slides past the panel is worth more than anything that expert could say on direct.

The exception is alcohol-related Article 120 cases. There, the defense expert almost always testifies, because the issues are too important and too counterintuitive to leave to cross-examination alone. Memory encoding, blackout versus passout, confabulation, what a person in a blackout state actually looks like to an observer: panel members think they already understand these things, and they are usually wrong, especially in an age when they are trained to adopt a zero tolerance policy when it comes to mixing sex and booze. Testimony that corrects the panel’s assumptions and explains the science in plain language is often the difference between freedom and prison. 

The prosecution’s forensic psychologist knows this and will fight the defense’s strategy at every stage. But the more sophisticated move for the defense is not a battle between competing experts. It is using the government’s own expert to undermine the government’s case. 

A defense attorney who understands the science well enough to cross-examine the prosecution’s expert at the level of the literature can force concessions that are more powerful than anything the defense expert could say on direct examination. When the government’s own witness acknowledges that a person in a blackout state is indistinguishable from a sober person to an outside observer, and could have given the appearance of consent, that concession carries more weight with a panel than the defense expert saying the same thing. The government can’t accuse its own witness of bias. The defense expert’s job in those cases is to prepare counsel to extract what the government’s expert can’t credibly deny.

Wrong Expert, Wrong Case, Wrong Outcome

Experts aren’t interchangeable. A forensic psychologist who is outstanding in cases involving child sexual abuse might not be suited to testify in an alcohol-related Article 120 case. A digital forensics examiner who is excellent on cell phone extraction might not be the right person for a case involving cloud-based CSAM distribution. Matching the expert to the case type is a skill that takes years to develop and requires a broad enough network to have strategic options.

Over twenty-five years of court-martial work, we have built a sourcebook of experts across every discipline that comes up in military cases: forensic psychology, toxicology, digital forensics, pediatrics, pathology, neurology, and others. We know who is credible, who stands firm under cross-examination, who can explain complex science to a panel of non-scientists, and who is worth the funding battle. We know which experts will drop what they are doing to give us a preliminary consultation at no charge, and which ones can move their schedules when a case demands it. We build defense teams based on what each case needs, not on who is available or familiar.

That network is part of what you hire when you call us. 

The Government’s Favorite Shortcut: “Your Lawyer Knows This Stuff and That’s Enough”

The government occasionally opposes a defense expert request by arguing that defense counsel is sufficiently experienced and knowledgeable to handle the issue without one. We have seen this argument made in person. A young Marine prosecutor made it, and a senior Marine judge adopted it, citing our own website to demonstrate that we possessed enough expertise in the relevant area to render an independent expert unnecessary.

The argument is wrong under the law for the reasons discussed above. But in that particular case, the legal error was not the whole story. Our client was an officer charged with a low nanogram cocaine case. A winnable case, so long as we were able to present competent testimony. Rather than proceed at a general court-martial where a dismissal would be available and automatic appellate review would attach, the command used a special court-martial, a forum almost never used for officers, specifically because the available punishment meant there was no automatic right to appeal. Deny the expert, keep the punishment below the appellate threshold, and the ruling never gets reviewed. The judge knew that. So did the trial counsel. The expert request was denied not because the legal standard supported denial but because the procedural posture made denial safe from scrutiny.

It is worth knowing that this happens. Our client was convicted, served thirty days, and faced a separation board afterward, where we managed to get him an Honorable discharge by demonstrating the bullshit the judge and trial counsel pulled at trial. When a judge has decided to bury a ruling below the appellate threshold and the forum has been chosen specifically to make that possible, there is no procedural remedy available in the moment. The right to an expert, like every other right in a courts-martial, depends on a system that is willing to enforce it. Sometimes it is not. The best protection against that outcome is getting into the case early enough to influence the forum choice before it is made, and having counsel with enough experience to see the landscape clearly before the command locks it in.

Experienced judges recognize the speciousness of this “counsel is good enough” argument immediately (notwithstanding our experience with the Marine judge). Judges know that counsel’s knowledge is not evidence. Counsel can’t take the stand. Counsel can’t submit a report. Counsel can’t be cross-examined on methodology or credentials. Whatever counsel knows about forensic psychology, toxicology, or digital forensics, none of it enters the record unless a qualified expert puts it there. The Garries framework exists because the government’s experts do enter the record, with credentials, opinions, and conclusions that the panel is asked to credit. Matching that requires a witness, not an attorney who has read the literature.

Frequently Asked Questions: Expert Witnesses in Military Courts-Martial

Does the government have to pay for my defense expert?

Yes, if the expert is necessary for an adequate defense. This is not a discretionary benefit. It is a constitutional requirement established in Ake v. Oklahoma and applied to military cases through United States v. Garries. The government can’t put its own experts on the stand, deny yours, and call that a fair trial. Article 46 of the UCMJ reinforces the point: the defense and prosecution are entitled to equal access to witnesses and evidence. If the government has a forensic psychologist advising its prosecution team and testifying at trial, and you need one to counter that testimony, the government has to fund it. 

If the government gets an expert, it’s almost a certainty the defense will get one to match, but the defense should be pushing to get experts even when the government doesn’t; when the government has unlimited power to get experts for itself and doesn’t, that’s a sign the prosecution’s case is weaker than it appears on the charge sheet. 

What is the standard for getting an expert approved?

The Garries test requires the defense to show three things: why the expert is needed, what the expert will do, and why defense counsel can’t perform those services without the expert’s help. The expert doesn’t have to be absolutely indispensable, but the defense has to show that without this assistance, presenting an adequate defense would be meaningfully compromised. A vague or generalized request will be denied. The request has to be specific about the issues, the methodology the expert will apply, and the gap between what counsel can do alone and what the expert provides.

What happens if (when) the government denies the request?

Denial by the convening authority is not the end. Defense counsel brings the issue to the military judge as a motion to compel. If the judge denies the motion, it becomes a preserved appellate issue. CAAF has reversed convictions where the denial of a defense expert request left the accused unable to mount an adequate defense against the government’s scientific evidence. A well-drafted request is designed not just to win approval the first time but to build the record that supports the appeal if it doesn’t.

Can the prosecution swap in a government-employed expert instead?

The government sometimes suggests that the accused can use a government-employed expert rather than an independent one. There is no per se prohibition on this, and we have used military experts over the years: Air Force physicians, Army nurses, DOD employees, and others. When you can find one who is qualified, genuinely unconflicted, and available at their commander’s discretion, it can be a useful arrangement. It removes one of the government’s automatic objections to funding an independent expert, since the argument that the defense already has access to adequate expertise is harder to make when the defense is the one proposing to use a government employee.

The problem is that those conditions are rarely all present simultaneously. Conflict is the threshold issue. A government-employed clinician whose career, promotion, and daily working relationships are embedded in the same institutional structure that is prosecuting your client is not automatically biased, but the potential for bias is real and has to be evaluated honestly. In United States v. Ruth, CAAF noted that limiting the accused to using one government expert to attack another is the functional equivalent of letting the fox guard the hen house. It makes the conflict analysis mandatory. An independent expert obtained by and reporting to defense counsel, with no institutional loyalty to the funding source, is the better arrangement when the government can be persuaded or forced to do it. 

What does the expert actually do before trial?

Much more than prepare to testify. The expert reviews the investigative file, the government’s forensic analysis, the medical and mental health records, the service record, and anything else relevant to their area. They identify what additional testing or analysis is needed. They tell counsel where the prosecution’s expert is methodologically vulnerable and what the scientific literature says that the prosecution’s expert won’t volunteer on direct examination. They help develop cross-examination. They advise on case theory and strategy in ways that a lawyer without specialized scientific training simply can’t do alone. This pretrial work is often more valuable than anything the expert says on the stand.

Will my expert testify at trial?

Sometimes, but not always, and in most case types the expert’s most valuable work happens outside the courtroom. The exception is alcohol-related Article 120 cases. There, the defense expert almost always testifies because the issues around memory encoding, blackout, confabulation, and how an intoxicated person appears to an observer are too counterintuitive to leave to cross-examination alone. Panel members think they already understand how alcohol and memory work. They are usually wrong in ways that hurt the defense (see above: training says combining alcohol and sex creates strict liability for the accused) . Expert testimony that corrects those assumptions in simple language can be a decisive blow for the defense.

What is a Daubert hearing and when is it important?

A Daubert hearing, rare these days in military court, is a pretrial proceeding where the military judge evaluates whether proposed expert testimony is reliable enough to be admitted. The standard comes from the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, which the military adopted and applied in cases like United States v. Gipson years before the civilian federal courts caught up. The judge acts as a gatekeeper, evaluating whether the expert’s methodology is scientifically valid, whether it has been tested and subjected to peer review, whether there is a known error rate, and whether it fits the issues actually in dispute. For the defense, a Daubert hearing is both a threat and an opportunity. The prosecution will use it to try to keep your expert out. You can use it to challenge theirs.

Can the government’s expert be excluded?

Yes. The same standards that apply to defense experts apply to the government’s experts. In United States v. Campbell, CAAF reversed a drug conviction because the government’s expert failed to establish the error rate of the testing methodology and did not account for the possibility of unknowing ingestion or a false positive. In United States v. McElhaney, the court set aside a sentence because a government child psychiatrist testified about the accused’s future dangerousness without an adequate foundation for that opinion. The government’s experts are not automatically credible simply because the government called them. A defense attorney who understands the science and has an independent expert advising in real time can identify the weaknesses and exploit them.

Can an expert testify that my accuser is lying?

No, and the prosecution’s expert can’t testify that the accuser is being truthful. Military courts have consistently excluded expert testimony that amounts to a credibility opinion on another witness. In United States v. Petersen, the court reversed a conviction where a government expert said she greatly believed the victim’s testimony. In United States v. Partyka, a conviction was reversed because a government psychologist testified that the accused’s statement was not true. The rule cuts both ways. Defense experts can’t testify that the accuser fabricated the allegation. What they can do is testify about general scientific principles, such as the unreliability of certain memory processes or the characteristics of a particular psychological condition, that allow the panel to draw their own conclusions.

What about cases involving digital forensics and CSAM?

Digital forensics cases present some of the most technically demanding expert issues in courts-martial today. The government uses examiners trained in tools like Cellebrite and other forensic platforms to extract, analyze, and present data from phones, computers, cloud accounts, and messaging apps. In United States v. Shields, CAAF addressed a case where the government’s forensic examiner used software to sort data by file size rather than by date, which led to the discovery of material outside the original scope of the search authorization. The court found the methodology reasonable, but the case illustrates how specific and technical the methodological questions can get. A defense expert who understands these tools, their limitations, and the best practices in the field can challenge the government’s analysis at a level a lawyer alone can’t.

What is an RCM 706 board and when should I ask for one?

An RCM 706 board, called a sanity board in practice, is a formal mental health evaluation that examines whether the accused has a mental disease or defect that provides a defense, and whether the accused is competent to stand trial. Most accused are found competent and most don’t have a per se mental health defense. But a 706 review often produces something else: a detailed psychological and psychiatric history that can be extraordinarily valuable for mitigation at sentencing. That material is confidential. The prosecution doesn’t see it. Defense counsel reviews it and decides whether and how to use it. Sometimes it is a goldmine. Sometimes it opens a door better left closed. Experienced counsel knows which is which before deciding how to proceed.

What if the sanity board comes back inadequate?

You can challenge it and request a new one. A 706 board is only as useful as the quality of the evaluation behind it. If the examiners spent inadequate time with the accused, failed to review relevant records, or reached conclusions that conflict with other mental health evidence in the file, defense counsel can argue that the board was insufficient and seek a replacement. This is another area where having a forensic psychologist in your corner before the board convenes, and during the review of its findings, makes a material difference. An expert who can identify deficiencies in the government’s evaluation is in a much stronger position than counsel arguing the point alone.

Do different types of cases require different types of experts?

Different tools for different jobs. An expert in PTSD might not have much experience with child forensic interviewing. A toxicologist who is outstanding on urinalysis testing and interpretation of computer generated reports might not be the right person for a case involving a spiked drink. Matching the right expert to the specific issues in your case is a judgment call that requires a broad network and the experience to know the differences among experts within the same field. .

What does the expert do during trial if they are not testifying?

Some of the most valuable expert work at trial happens in the seats behind the defense table or in the war room. An expert sitting in the courtroom during the government’s expert testimony watches for missed steps, factual misstatements, and claims that go beyond what the science actually supports. They pass notes. They provideurgent observations during breaks. They help counsel adjust cross-examination on the fly when the government’s witness says something unexpected. In a long technical case, that real-time advisory function is worth as much as anything the expert could say on direct examination. They have seen as many of these cases as we have, and they notice things in the heat of trial that the attorneys, focused on the testimony, might miss.

How do I know if my lawyer has the expert network this requires?

Ask. 

Ask which experts they have worked with in cases like yours, what fields they cover, whether they have contacts who will consult at no charge before being appointed, and whether those experts can be available on short notice. Ask whether they have ever had an expert request denied and had to litigate it as a motion. Ask whether they have ever used an expert in a sanity board review. The answers will tell you whether you are talking to someone who has actually done this work or someone who has read about it.

What if I can’t afford an expert on top of attorney’s fees?

If the expert is necessary for an adequate defense, the government funds it. That is the whole point of the Ake and Garries cases. The cost of a properly appointed and government-funded expert doesn’t come out of your pocket. What comes out of your pocket is the attorney who knows how to identify the issue, draft the request, fight for it when the government refuses, and use the expert effectively. That is part of what you are paying for when you hire counsel with genuine experience in courts-martial: their network of experts comes with them.

If You Are Facing a Court-Martial, the Government’s Experts Are Already Working Against You

OSTC builds its cases around expert testimony. The investigation, the charges, and the trial strategy are all shaped by scientists, psychologists, and other forensic specialists working for the prosecution before you’ve even gotten a charge sheet. The window to match that preparation closes as the case moves forward. Call us at 800-319-3134. We will tell you what experts your case requires, whether we can get them funded, and what the defense looks like if we do. The consultation is free and confidential.

An RCM 706 board, called a sanity board in practice, is a formal mental health evaluation ordered when there is reason to question whether the accused had the mental capacity to be held responsible for the alleged conduct, or whether the accused is currently competent to stand trial. Done right, it is one of the most powerful tools in court-martial defense.

The board examines four questions. 

• First, did the accused suffer from a severe mental disease or defect at the time of the alleged conduct? 
• Second, what is the clinical psychiatric diagnosis? 
• Third, was the accused, as a result of that disease or defect, unable to appreciate the nature and quality or wrongfulness of the conduct? 
• Fourth, does the accused currently suffer from a mental disease or defect that prevents understanding the proceedings or cooperating intelligently in the defense?

The “insanity” defense requires the accused to prove by clear and convincing evidence that the answer to the first and third questions is yes. That is an extremely high standard that is almost never met. 

The defense doesn’t apply to personality disorders, nonpsychotic behavioral conditions, or patterns of conduct that are only antisocial. Most accused who undergo a 706 evaluation don’t meet the standard, but that doesn’t make the 706 board useless. Far from it.

Even when the insanity defense is off the table, the full board report produces a detailed psychological and psychiatric history that can be extraordinarily valuable at sentencing. Trauma history, cognitive limitations, mental health treatment records, childhood circumstances, and the results of a full battery of psychological testing all go into that report. That material can reframe the sentencing story in ways that reduce confinement significantly. 

And it is confidential. The prosecution doesn’t receive the full report. Neither does the judge. They receive only a summarized version of the board’s ultimate conclusions. The full report, including all testing data, goes to the defense alone.

Defense counsel reviews that full report and decides whether and how to use it. Sometimes it is a goldmine. Sometimes it opens doors better left closed. Experienced counsel know the difference before deciding how to proceed.

Getting the Evaluation Right: Two Moves That Make the Difference

A sanity board ordered by the government and staffed by government-employed clinicians is not automatically a fair evaluation. It is a process, and like any process it can be done well or done poorly. A defense counsel’s job is to make sure it is done right, and to intervene early enough to set up the evaluation correctly before it has been conducted and the conclusions have been written rather than challenge them after the fact.

That intervention starts before the 706 is even ordered.

The First Maneuver: An Expert to Evaluate Whether a Board Is Warranted

When the file contains any indication of mental health history, trauma, cognitive limitations, or unusual behavior around the time of the alleged offense, the first step is retaining or consulting a forensic psychologist to review the available records and advise whether a sanity board is warranted at all. 

United States v. Garries established the three-part test military courts use to evaluate defense requests for government-funded expert assistance. The defense must show 

• Why the expert is needed 
• What the expert will do, and 
• Why counsel can’t perform those services without help

Defense counsel are not clinicians, but they need to be conversant enough in the relevant mental health issues to spot the indicators in the file, assess their significance, and have a productive conversation with a forensic psychologist before any formal request is made. That preliminary conversation typically happens informally, as a professional courtesy, before any appointment or funding is sought. At this stage, however, the psychologist is not yet a member of the defense team and is not covered by the attorney-client privilege or the protections that attach once formal appointment is made. Counsel have to be careful about what they share. The case file doesn’t go to the psychologist at this point. The conversation is based on a careful and limited briefing of the relevant facts, enough to get a professional assessment of whether the mental health questions are significant, without disclosing materials that could create problems if the informal consultation goes no further.

This is one of the purposes of the formal appointment request. Once the psychologist is designated as a member of the defense team under United States v. Toledo and Military Rule of Evidence 502, the full cloak of confidentiality attaches. The psychologist can receive the entire file, discuss the case freely with counsel, conduct whatever interviews and assessments are warranted, and provide opinions that are protected from disclosure. Getting to that point requires the formal Garries request, which is why the preliminary consultation is designed to generate just enough professional foundation to support it.

If that preliminary conversation supports the conclusion that a board is warranted, counsel now have a stronger foundation for the 706 request to the convening authority, because a qualified forensic psychologist has already identified the issues that make it necessary, without having been given access to materials that could complicate the process. If the psychologist concludes no board is warranted, counsel have avoided a process that might produce unhelpful findings and the confidentiality risks that come with a full evaluation going sideways.

The same rationale applies when the first board comes back and the defense believes it was inadequate. Before requesting a second board from the convening authority, counsel retains or consults a forensic psychologist to review the first board’s findings and methodology. If that expert can identify specific deficiencies, the request for a new board is grounded in a professional critique rather than a general objection. That is the difference between a motion that persuades a judge and one that doesn’t.

The Second Maneuver: Inserting the Expert Into the Board’s Process

When a board is ordered by the court, the defense has a second opportunity to ensure the process is fair. The court’s order governing the board can and should require the board to consult with the defense’s forensic psychologist on the appropriate testing methodology before the evaluation begins. If the board disagrees with the defense expert’s recommendations on what testing is warranted, the order directs them to report that disagreement to the judge for resolution.

This is not an attempt to take over the government’s evaluation. It is a transparency measure that serves everyone in the courtroom, including the judge. Military judges don’t want to preside over a 706 process that produces an inadequate evaluation and creates an appellate landmine. When defense counsel come to the judge with a well-supported request to insert a qualified forensic psychologist into the board’s methodology, framed as a measure to ensure the evaluation meets the required standard, judges are likely to grant it or some version of it. The alternative is a board that operates without any check on its testing choices, produces conclusions that might not withstand scrutiny, and creates the kind of record that creates post-trial litigation and embarrassment. Judges want a clean record first and foremost, and they don’t like inadvertently drawing attention from appellate courts. 

By the time the board reports its findings, the defense expert has reviewed the file, advised on testing, and is positioned to evaluate the board’s conclusions against the methodology they recommended. If the board followed the recommendations and produced a thorough evaluation, the defense has confidence in the findings and can decide how to use them. If the board deviated from the recommendations without adequate justification, or produced conclusions the defense expert can identify as methodologically deficient, the defense has a fully developed record to support a motion for a new board.

Why the Order Itself is Part of the Defense Strategy 

The request for a sanity board goes first to the convening authority. If a second board becomes necessary, that request goes back to the convening authority as well. The judge becomes involved only when the convening authority refuses a request that is clearly warranted. At every stage, the defense request should be comprehensive, specific, and detailed enough to guide whoever ultimately issues the order.

The order governs everything the board does. A vague order inevitably leads to a sloppy or incomplete evaluation. An order that simply directs a board to answer the four RCM 706 questions, requires that at least one member be a psychiatrist or clinical psychologist, and instructs the board to review the charge sheet and service records that comply with RCM 706. It will produce a report that answers the four questions. But it provides no quality control. It doesn’t require forensic specialization. It doesn’t specify what testing should be conducted. It doesn’t give the defense any role in shaping the methodology. It assumes the board will exercise sound judgment on its own, which might or might not happen depending entirely on who gets assigned. There is high variance in competence from one examiner to the next. A minimal order does nothing to account for that variance.

A well-drafted order does more. It requires forensic credentials and experience in competency determinations in criminal proceedings. It mandates a full battery of psychological testing including intelligence indicators and personality inventories. It requires interviews with family members, coworkers, and acquaintances where appropriate. It directs the board to consult with the defense’s appointed expert on testing methodology. And it requires the board to report any disagreement with those recommendations to the judge for resolution before proceeding.

When defense counsel submit a detailed, well-supported request to the convening authority with draft order language attached, it does several things at once. It demonstrates that counsel have done the work. It makes it easy for the convening authority or judge to issue a good order rather than a conclusory one. And it creates a record: if the convening authority issues a minimal order and the resulting board is inadequate, the defense already has the record showing exactly what was requested and why. That record supports the motion for a new board, and it supports the appellate argument if the motion is denied.

A thorough, well-conducted sanity board serves everyone in the courtroom. Getting there requires defense counsel who knows what a thorough evaluation looks like, asks for it specifically from the first request forward, and has the network of experts to back up every step of that process.

When to Challenge the Board

A 706 board that doesn’t meet the required qualifications, failed to review relevant records, spent inadequate time with the accused, or produced conclusions that conflict with other evidence in the file should be challenged. Defense counsel can argue the board was insufficient and seek a second evaluation. The challenge has to be specific and supported; a detailed critique from a qualified forensic psychologist who can identify exactly what the board missed or got wrong is gold. That expert, obtained through the Garries process, is often the same one who advised on whether the board was warranted in the first place and helped shape its methodology. By the time a challenge becomes necessary, the defense is not starting from scratch. The groundwork was laid at the beginning.

Why the Process Itself Is the Point

A sanity board almost never produces a successful insanity or incompetency defense. That is not why savvy experienced defense counsel request them. The 706 process works on multiple levels simultaneously, and most of those levels have nothing to do with the four questions the board is asked to answer.

The confidential mitigation record is the most reliable return. In the majority of serious courts-martial where a 706 board is properly conducted, the full report contains material that reframes the sentencing narrative in ways that will reduce potential punishment. That material belongs to the defense. The prosecution never sees it unless counsel decides to use it. The decision about whether and how to deploy it belongs entirely to counsel, made after reviewing the complete picture with no obligation to disclose what was found.

The process also applies institutional pressure that has its own value. A properly litigated 706 request costs the government time, money, and administrative attention at every stage. The initial request to the convening authority requires a response. A motion to compel requires briefing and a hearing. A challenge to an inadequate board requires the government to defend the quality of its own evaluation. Each step adds stress to a prosecution timeline that OSTC is trying to manage efficiently. A case that is more expensive and more complicated to prosecute is a case that gets evaluated more carefully for deferral. 

The expert appointment process and insisting on the proper framework for a sanity board establish something else: who the most knowledgeable people in the room are. A defense team that arrives with a qualified forensic psychologist who has already reviewed the file, influenced the board’s methodology, and critiqued its findings is a defense team that has demonstrated it understands this case at a level the government has to take seriously. That credibility carries into every subsequent proceeding, including the conversations with OSTC that happen outside the courtroom. Prosecutors who recognize they are dealing with counsel who know the science, have the expert network, have high credibility with the judge, and will fight every step of the process make different decisions about how hard to push a case than prosecutors who believe they have the room to themselves.

None of this requires the board to find anything that supports an insanity or incompetency defense. The board works when it finds something useful for mitigation. It works when it doesn’t, because the process of getting there put pressure on the government, established the defense team’s credibility, and produced a confidential record that informed counsel’s strategy going forward. A 706 board done right never produces nothing. The question is always what it produced and what to do with it..

FAQ: The RCM 706 Sanity Board

When should my attorney request a sanity board?

Whenever there is any evidence in the file suggesting mental health history, trauma, cognitive limitations, prior psychiatric treatment, or unusual behavior around the time of the alleged offense. The request doesn’t require certainty that a defense exists. It requires a reasonable basis to inquire. The cost of not requesting one, when the full report could have produced significant mitigation, is a cost paid at sentencing.

Does requesting a sanity board mean I’m claiming I’m crazy?

No. A 706 board evaluates both competency and mental responsibility, but requesting one doesn’t commit the defense to raising an insanity defense. Most clients who go through a sanity board are found competent and don’t have a per se mental health defense. The board produces a detailed psychological history that the defense reviews confidentially. Whether any of that material is used at trial is the defense’s decision, not the board’s.

What does the board actually do?

Ideally, the board conducts a comprehensive evaluation: interviews with the accused, review of law enforcement reports, service records, medical and mental health records, and where appropriate, interviews with family members, coworkers, and acquaintances. The accused submits to a battery of psychological testing that can include intelligence indicators, personality inventories, and other assessments relevant to the questions the court has ordered the board to answer.

Who sees the results?

The board prepares two reports. The summarized report, containing only the board’s ultimate conclusions, goes to the command, both counsel, the convening authority, and the military judge. The full report, including all testing data and materials the board relied on, goes only to the defense. The prosecution doesn’t receive the full report unless the defense introduces it or relies on it at trial, which can waive the confidentiality protection. That decision belongs to defense counsel, and it should be made deliberately.

Can I have input into what testing the board conducts?

Yes, if a defense counsel drafts the order correctly. In cases we handle, we include language directing the board to consult with our appointed forensic psychologist on the testing methodology. If the board disagrees with our expert’s recommendations, they are required to report that disagreement to the court. That structure gives the defense a meaningful role in shaping the evaluation before it happens, rather than simply receiving whatever the board decided to do on its own.

What if the board’s conclusions seem wrong or incomplete?

Challenge it. A board that lacked proper forensic credentials, failed to review relevant records, or produced conclusions inconsistent with other evidence in the file can be challenged as constitutionally inadequate, and a replacement board can be requested. The challenge has to be specific. An appointed forensic psychologist who can review the board’s methodology and findings, identify the deficiencies, and support the motion for a new board is essential to making that argument effectively.

What is the difference between competency and mental responsibility?

Competency is about the present: can the accused currently understand the proceedings and cooperate in the defense? Mental responsibility is about the past: did the accused have the mental capacity to be held responsible for the alleged conduct at the time it occurred? The 706 board addresses both. A finding of incompetency halts the proceedings until competency is restored. A finding that the accused lacked mental responsibility at the time of the offense is the basis for an insanity defense at trial, which the accused must prove by clear and convincing evidence.

What happens if the panel finds me not guilty by reason of lack of mental responsibility?

It doesn’t mean you go home. Within 40 days of that verdict, the court-martial conducts a post-trial hearing to assess whether release would create a substantial risk of bodily injury or serious property damage. The accused bears the burden of proving release is safe. If the offense involved bodily injury or serious property damage, the burden is “clear and convincing evidence”. If it didn’t, the burden is “preponderance” (the lower standard of “more likely than not”). If the accused can’t meet that burden, the military might transfer custody to the Attorney General for further treatment and observation. A not guilty by reason of insanity verdict is not an exit. It is a different kind of proceeding with its own risks.

Is the insanity defense worth raising?

Rarely, and only when the evidence clearly supports it. The standard is demanding, the burden is on the accused, and a not guilty by reason of insanity verdict carries its own consequences. In most cases where a 706 board is ordered, the more valuable outcome is not a mental responsibility finding but a detailed mitigation record that gives the defense real ammunition at sentencing. That is where the board earns its keep in the majority of serious courts-martial.

Facing a Court-Martial? The Time to Act Is Before the Board Convenes

The mitigation value of a properly conducted 706 evaluation depends entirely on when counsel gets involved and how well they manage the process from the first request forward. By the time charges are preferred and trial is approaching, some of those opportunities are already gone. If you are under investigation or have been charged, call us at (224) 935-6172. We have pioneered and mastered the moves discussed on this page, to make sure our clients are treated fairly.

Why Would Anyone Waive an Article 32 Hearing?

A high-profile case at Fort Hood has put a rarely-discussed question in front of a lot of people: why would a service member facing serious criminal charges give up the right to an Article 32 preliminary hearing? 

Major Blaine McGraw, an Army OB/GYN, faces dozens of allegations of indecent visual recording under Article 120c, five specifications of conduct unbecoming an officer under Article 133, one specification of willful disobedience of a superior officer under Article 90, and one specification of making a false official statement under Article 107 of the UCMJ. 

Keith discusses the case and the implications of waiving an Article 32 hearing in the segment below

When asked about the waiver, the Army confirmed there was no plea deal and that the accused simply waived the hearing, which appears to give the government an unimpeded path for referring the case to a General Court-Martial. 

The defense attorneys must have a reason. We’re not involved with that case and we’re not going to second guess their decision. 

But if we’re asked, as we often are, why should someone ever waive such a significant right, our answer is going to be, They shouldn’t. Trade it? Maybe. Waive it? No. 

What the Article 32 Actually Does

Most discussions about Article 32 hearings focus on probable cause: the government has to show enough evidence to justify taking the case to trial. 

That framing makes waiver seem more reasonable than it is. Probable cause is a low standard. It only requires the prosecution to prove that it’s more likely than not that the allegations are true. “Probable” in this context means 50.00001%. Even a single unsupported allegation can be enough to meet that standard. 

It’s not uncommon for some charges to fail to meet that standard at an Article 32 hearing, but it’s extremely rare for all charges to fall short. Which means that if you go by the probable cause standard alone, the government will almost certainly clear that bar on at least one charge, satisfying the minimum technical requirement for recommending a case should go to court-martial. This is why the battle over probable cause is the least interesting thing about an Article 32 hearing. If that were all the hearing accomplished, skipping it might look like a minor concession.

The hearing is also the defense’s first real, official opportunity to sell its case, mostly by reframing the government’s own evidence, without any risk whatsoever to the client, to the people who decide whether this case goes to trial and how hard they want to fight it. The Office of Special Trial Counsel, the elite prosecution office that handles serious UCMJ cases, is not running a conviction assembly line. OSTC obsessively tracks its win percentage. It would rather drop a weak case early than lose at trial. The Article 32 hearing is when a well-prepared, creative, and persuasive defense team can create genuine doubt about whether the government will want to commit its time, money, and winning percentage to this prosecution. You want to do this before people invest their egos and reputations in formal court-martial charges.  

This is why we say it’s not a probable cause hearing: it’s a reasonable doubt hearing. More on this in a moment. Simply put, waive your hearing and you lose that chance to derail the case before it really gets going. 

Three Reasons Lawyers Waive, and Why They’re Not Enough 

The first and most common reason is that some lawyers think the hearing is pointless for the defense. 

The reason inexperienced or misguided defense attorneys think the preliminary hearing is a waste of time is that it looks like a waste of time if it’s not done right, and they’ve never seen it done right. 

At a typical preliminary hearing, the government doesn’t call witnesses. The government more or less hands the investigative file to the preliminary hearing officer and makes an argument. Because the defense rarely calls witnesses either, to the uninformed observer this looks like a paper drill.

But the defense has the opportunity to recalibrate all of that evidence for the preliminary hearing officer’s and OSTC’s consideration. Highlight inconsistencies and impossibilities in the witness accounts. Present contradictory evidence. Present exculpatory crime scene photos. Make legal arguments. Propose a lesser form of resolution than a general court-martial. Present a letter from the victim’s counsel showing that the victim supports avoiding trial. There are dozens of things the defense can do at this hearing, even when no witnesses testify. 

The Article 32 is also a great opportunity to build rapport within the defense team, establish deeper working relationships with the prosecution, hash out issues that will matter at trial, assess OSTC’s true commitment to the case, and get the client acclimated to the courtroom, which will pay off if the case develops. As noted above, the primary goal is to create reasonable doubt. A favorable report from the preliminary hearing officer goes a long way toward that. You won’t get that report if you waive the hearing. You won’t influence OSTC either.

What these defense attorneys imagine is that nothing is happening. But the only way nothing happens is if you do nothing. And waiver is the ultimate form of doing nothing.

There’s one more thing to keep in mind if you have a civilian attorney: if the preliminary hearing is waived, you can rest assured the case will be referred to a general court-martial, and that’s when the attorney’s biggest fee comes due. So a civilian military attorney has an even greater obligation to explain why waiver is in the client’s best interest. 

A second reason, less common but worth understanding, involves a calculated gamble on charging defects. If a defense attorney identifies a technical problem with how the charges are drafted, he might reason that a preliminary hearing officer, who is required to review the legal sufficiency of the charges, will spot the defect and alert the government, giving them a chance to fix it. By waiving the hearing, the theory goes, you hide the problem and spring it at trial when it’s too late to correct.

It’s a long bet, and it forfeits too many advantages. The government can seek permission to amend charges at any point, including at trial. A judge can deny that request, or grant it. Meanwhile, you’ve traded away everything the hearing offered (the early exculpatory presentation, the attack on the prosecution’s case, the chance to make OSTC wonder whether this is worth their time, the rapport building and recon) on the chance that a judge will later refuse to let the government fix a drafting error. This is a classic case of “too clever by half.”

The third reason is the only one that makes sense: a genuine, enforceable pretrial agreement that exchanges the hearing for something of real value, like a specific charge dropped, a cap on the sentence, or an alternate disposition. In terms that are in writing and binding on the government. In that case, you’re not really waiving the hearing. You’re trading it for something better and guaranteed.

The Question You Must Always Ask: What’s in it for Me?

If you are advised to waive your right to a preliminary hearing, one question needs a real, concrete, no-bullshit answer: what are you getting in return?

If the answer is “nothing” or “we’re getting out of a process that won’t matter anyway,” that’s not good enough. It’s a cop-out. The hearing isn’t a formality for your attorneys to endure. It’s the best opportunity in the entire case to change the prosecution’s calculation before they’ve committed themselves to trial.In reality, the usual thinking that goes into waiving an Article 32 hearing is about as sophisticated as this: “It’s just a probable cause hearing. Hearing officers always find probable cause. It’s a waste of time. I’d rather be doing something else.” And if there’s a civilian attorney involved? Maybe: “And my biggest fee depends on this case getting referred.”

We get some version of this email often. It reads like this:

“I’m reaching out on behalf of my son. He was recently convicted and sentenced to [X months/years] at [installation]. I only just learned about this. I don’t have any details. I’m still in shock. Is there anything that can be done?”

The email usually comes from a parent, but sometimes it’s from a sibling. Or even a spouse. They just found out their loved one was convicted at court-martial, sentenced, and already sitting in confinement awaiting transfer to Fort Leavenworth or some other long-term prison. And since a lot of these queries come after conviction of a sex crime, after release from prison the service member (and family) will face the burdens of sex offender registration.

They want to know what options exist. They didn’t even know their loved one was in any kind of trouble. They want to help.

But by the time they find out, most of the options are gone. The only thing left is an appeal, and appeals have an extremely low chance of undoing the conviction. Call Home, Tell Your Family, Get a Good Lawyer.

What Silence Actually Costs

Before trial, a service member facing charges has real choices. Civilian defense counsel is one of them. Not everyone can afford to hire a private lawyer. But it’s crucial to know that the choice exists. The people who love you are usually the ones who help you find the right attorney and figure out how to make the financial end of it work out.

After conviction, the situation changes completely. Appellate review by a civilian attorney is expensive, significantly more than pre-trial or trial defense, and the odds of overturning a conviction are very low.

You will get the help of a free appellate defense counsel, similar to the help you received from a JAG at trial. Military appellate lawyers are extremely busy, but they will get to your case eventually. The post-trial process is lengthy and burdensome. There’s nothing you or any attorney can do to goose it along faster. But your time will come. While the appeals process is crawling along, you will be in confinement with nothing to do but count the days.

Your mother is now learning all of this at once. What you were convicted of. What the punishment is. What the consequences will be for your future after you get out of jail. Worst of all, from what they tell us, is the fact that you hid it from her. She’s not just heartbroken. She’s helpless, because the window where she could have done something closed months ago, and nobody told her it was open.

Why They Don’t Call

Shame. Sometimes it’s as simple as that. The charges are serious. Often embarrassing. Maybe they’re the kind of thing you can’t imagine saying out loud to your mother or your father. Sexual assault. Child exploitation material. Drugs. Or you ran away and are hiding out from a Desertion warrant.

Some convince themselves it will work out. The JAG defense attorney will handle it, they’ll beat the charges, and nobody back home ever has to know. They convince themselves they’re confident of victory, but it’s a bet on an outcome they can’t control, and where the odds are always stacked against the defendant.

In the usual case, the service member is 19, 22, 25 years old. They’re terrified. And they convince themselves that keeping it quiet is the right move, that silence protects the people they love.

It doesn’t. It guarantees that the people who love you the most find out at the worst possible moment, with the fewest possible options, after the damage is done.

That’s not protecting your family. That’s making the worst day of their life worse than it had to be.

The Military Teaches You to Comply. This Is the Time to Push Back.

Here’s something most service members don’t think about, because nobody tells them.

When you’re charged, you will have access to a military defense counsel from the JAG community. You meet with them. They explain the process. You go along with it because going along is what the military trained you to do. Compliance is the default setting, and it’s served you well from day one of basic training.

But this is not a routine military situation. This is your life, and you are now seen as being on the wrong side of the military. You’re one of Those People. The defense counsel the system assigned to you, who might be competent, might even be outstanding, is also probably handling a heavy docket of other cases, while also dealing with walk-ins, lower-level issues, their own training, and their own PT obligations. They might be a year or two out of law school. They might have limited experience with the specific charges you’re facing. They didn’t choose your case. It was assigned to them, the same way it was assigned to you. Even so, most military members facing trouble have no idea there is any alternative.

You have the right to hire a civilian defense attorney. You have the right to bring in someone whose only job is your case, who chose to take it, who does this and only this for a living. Many service members don’t know this. It never occurs to them. Nobody in the chain of command is going to volunteer the information, because the system is designed to process your case, not to help you fight it.

This is where your family comes in.

What Your Family Can Do, But Only If You Let Them

Your parents, your spouse, the people who care about you; they can’t evaluate your legal options if they don’t know you’re in trouble. They can’t help you find the right attorney if they don’t know you need one. They can’t figure out the money if they don’t know money is part of the equation.

Can every family afford civilian defense counsel? No. That’s the truth and we won’t pretend otherwise. But a family that knows about the situation can at least explore what’s available. They can ask questions. They can make informed decisions. They can be in your corner during the worst experience of your life, which is where they want to be whether you believe it right now or not.

The family that doesn’t know? They have zero options. Not because options don’t exist, but because nobody told them options were needed.

Make the Call

This is the hardest phone call you’ll ever make. We know that. It’s harder than anything you’ve faced in the military. You would rather do anything, anything, than tell your mother or your father what you’ve been charged with.

Make the call anyway.

They would rather hear it from you now, while there’s still time, while there are still choices, while they can still help, than learn about it after sentencing, from a stranger, when it’s too late to do anything but grieve.

Your family can’t fight for you if they don’t know there’s a fight. Tell them. Let them in. Whatever comes next, face it together.

Every week, we hear from parents who would have moved heaven and earth for their kid. They just never got the chance.

Don’t be the reason they didn’t get the chance.

About the Author: Keith Scherer is a military defense attorney and former Air Force Judge Advocate who has represented service members in courts-martial for over 20 years. Along with attorney Greg Gagne, his practice focuses on UCMJ defense, with particular experience in sexual assault (Article 120), CSAM, and other serious charges. Greg and Keith have handled cases at military installations across the United States and overseas.

Frequently Asked Questions

What are the odds of success on court-martial appeal?

Our best estimate, confirmed by our experience and contacts at the service court level, is that about 9% of appeals result in meaningful relief. If you lose there and petition the highest military court, the Court of Appeals for the Armed Forces, that court accepts only about 10% of cases and reverses in about 1 in 5. Run the math all the way through and roughly 1 in 9 convictions gets any meaningful relief on appeal. The other 8 don’t. Your best odds are at trial, or even before then.

Before a case ever reaches a courtroom, there are multiple points where it can end or be reduced to something survivable. Each one of these is a better outcome than winning on appeal.

The investigation dies. The allegation is reviewed by OSI, CID, or NCIS and the evidence doesn’t hold up. The case is closed. No charges. No record. This happens more often than people think, particularly when defense counsel is involved early enough to identify weaknesses before the command commits to prosecution.

Administrative resolution without a criminal record. The command decides the case doesn’t warrant court-martial and handles it through nonjudicial punishment under Article 15, a letter of reprimand, or some combination. You take a hit, maybe you lose a stripe, maybe you forfeit some pay, but you walk away without a federal conviction. Your career may survive. Your freedom isn’t at risk.

Administrative resolution that ends a career but avoids a conviction. The command offers an administrative discharge, possibly under other-than-honorable conditions. Your military career is over, but you leave without a criminal record, without confinement, and without sex offender registration. For someone facing an Article 120 charge, this can be the difference between starting over and starting over as a registered sex offender.

Resolution after charges but before trial. Charges are preferred, maybe even referred to court-martial, and then something changes. The Article 32 hearing exposes problems with the government’s case. A witness recants or becomes unavailable. The defense presents evidence that shifts the calculus. The OSTC or convening authority decides to withdraw the charges, reduce them, or offer a deal that avoids the worst consequences. We have had cases resolved favorably at every stage of this process, including after referral.

Acquittal at trial. The case goes to a panel or a military judge, the government presents its evidence, and the defense wins. Full acquittal. No conviction. No punishment. No record.

Every one of these outcomes is available before the appellate stage. Every one of them is more likely to succeed than an appeal. And every one of them requires that the accused has competent counsel in the fight early enough to make a difference.

By the time your mother is writing us that email, all of these doors have closed. The only one left is the appeal, the one with a 1 in 9 chance. That’s what silence costs. That’s why you call home early, ask for help, and get a lawyer.

Can I hire a civilian attorney for a court-martial even if I have a military JAG defense counsel assigned to my case?

Yes, you have an absolute right to hire an attorney. The military won’t help you pay for it, but the military can’t stop you from doing it. And you don’t have to wait until you receive court-martial charges. You can hire an attorney at any time, even when your situation is just a rumor.

How much does it cost to hire a civilian military attorney for a court-martial?

The amount will vary widely from lawyer to lawyer. Most firms will charge a flat fee between $5,000 and $8,000 to get involved in a case. If the case gets into the court-martial process, additional fees will be due and that’s where the range of fees is truly variable. One firm might charge an additional $25,000, while another might charge $100,000 for the same case.

Gagne, Scherer & Associates publishes its fees: $6,500 initial/investigative period; $10,000 to $12,000 for an Article 32 preliminary hearing; a final $25,000 for the court-martial stage. Please see our Fees/Hiring section for more information.

How much does it cost to hire a civilian military attorney to appeal a court-martial conviction?

Again, this figure can be very different depending on the firm. You can assume a first-level appeal to a service court will be at least $50,000. For an entire appeal process, it could be well over $100,000.

If I can afford to hire an attorney, when should I do it?

As early in the case as possible. The moment you know you’re under suspicion or being accused of any form of wrongdoing. It’s never too early. Call (224) 935-6172 to talk directly with our military lawyers.

Every criminal defense attorney has to deal with the question, “How can you defend those people?” and that’s especially true when it comes to cases involving sex, children, or domestic violence. The question is asked with a tone of condemnation, but it unintentionally gets at an important truth. “Those people” and “those cases” require a certain type of lawyer, and it has nothing to do with being soulless. Note, too, that the question presumes guilt, something a criminal defense lawyer doesn’t do.

The defense of sexual assault and domestic violence prosecutions demands a unique synthesis of skills combining the strategic acumen of a trial lawyer with the psychological awareness of a forensic expert. This field, which has made up the bulk of our casework for 25 years, requires a distinctly bolder yet infinitely more nuanced approach to testimonial evidence and courtroom dynamics.

Our credibility comes from mastering the complex suite of issues that occur in these dramatic cases. We have a long history of securing acquittals in seemingly unwinnable cases by mastering forensic psychology and every moving part of cross-examination.

Resilience and Ethical Lawyering

The attorney’s emotional foundation must be unassailable. The intensity of emotional projection, from the alleged victim, opposing counsel, and often the judge or panel, is arguably the highest in this kind of case than any other, including many homicides.

Compartmentalization

The attorney must rigidly compartmentalize personal feelings to remain a tenacious, objective advocate. In the experience of most veteran UCMJ trial lawyers, these allegations are often proven false or unsupportable, but the expert defense counsel cannot afford to assume they are true or false when entering the case. You need to clinically assess all evidence and probabilities in addition to reading the psychological and social climate of the base, case, and zeitgeist. A critical risk arises from any pre-judgment that an allegation is a lie, as it leads to underestimating the danger of either a false conviction or an accurate conviction. The client deserves a lawyer who provides an unclouded, objective assessment of the evidence and the high consequences. This fortitude allows the attorney to pursue uncomfortable but legally necessary lines of inquiry, the ones that reveal the truth, without fear of the unknown.

Courage

The attorney must possess the mental toughness to endure the inherent confirmation bias of the courtroom, where a defendant accused of sexual assault or domestic violence is often presumed guilty. This is the courage to stand alone, aware that professional duty often requires defending the accused against overwhelming moral condemnation and emotionally powerful testimony.

Mastery of Forensic Science and Logical Vulnerabilities

In adult sexual assault cases, the defense often pivots on the reliability of the testimony rather than the veracity of the witness. This demands deep expertise in memory science, which becomes the defense’s primary technical weapon.

The Science of Defense

The attorney must possess a technical mastery of concepts such as hippocampal function, en bloc vs. fragmented blackouts, confabulation, and the psychological effects of trauma. This knowledge allows the attorney to challenge the fundamental reliability of the state’s evidence without ever having to accuse the alleged victim of lying. The argument shifts from “She is lying” to “the scientific literature on human memory and acute alcohol intoxication suggests the account might be a sincere but factually inaccurate reconstruction.”

Exposing Cognitive Fallacies

A successful defense attorney must also be a fluent logician, capable of identifying and dismantling the subtle cognitive biases and logical fallacies that pervade the case:

• Hindsight Bias: Showing that current feelings of distress are incorrectly imputed back into a memory of an initially ambiguous or consensual encounter.
• Narrative Fallacy: Deconstructing the prosecution’s simple, linear story to reveal the chaotic, contradictory, and confused moments (e.g., text messages sent during the event) that were edited or deleted to create a plausible narrative.
• Appeal to Emotion: Preventing the court from substituting the alleged victim’s pain and distress as proof of the criminal act itself.

The Art of Sophisticated but Clear Cross-Examination

Mastery of cross-examination is crucial. Our 25-year history has taught us that cross-examination requires a careful, highly disciplined approach that leverages the science of memory.

Firm, Not Argumentative

While the attorney can afford to be bolder, this boldness must be expressed as relentless insistence on facts, not hostility toward the witness. The aim is to methodically isolate the points where the testimony relies on assumption, inference, or reconstructed memory. The attorney must be professional and measured, maintaining a controlled, factual demeanor that contrasts sharply with the high emotion of the allegations.

When a Witness Lies

Every trial lawyer eventually encounters a witness who lies outright. The temptation is to respond with righteous indignation: to attack, to expose, to dismantle on the spot. But effective cross-examination demands composure. You do not lose your composure, and you do not go into blitzkrieg mode. You stay in control. You draw the witness into conversation, giving them the space and rope to contradict themselves. You allow them to doom themselves in their own words rather than forcing them to answer a barrage of yes-or-no questions. If escalation becomes necessary, it must be controlled, deliberate, and devoid of anger. The goal is to keep the panel and judge on your side while the witness alienates them through their own behavior.

A Multi-Layered Approach

Mastery of cross-examination encompasses a multi-layered strategy:

• Impeachment by Contradiction: Using the case file’s entirety (texts, medical records, prior statements) to demonstrate the memory’s unreliability.
• Impeachment by Character or Reputation: Calling witnesses who can testify to the opposing witness’s poor character or reputation truthfulness, showing that their testimony cannot be taken at face value.
• Impeachment by Science: Showing the mechanism of error, such as how alcohol, subsequent discussions, or therapeutic suggestions might have contaminated the original memory.
• Impeachment by Omission: Exploring what the alleged victim did not say in their initial reports (e.g., absence of immediate distress, failure to immediately disclose key details).

Total Awareness: Reading and Managing the Courtroom

Criminal defense in a serious trial like this is a mentally exhausting, multitasking discipline. The attorney must possess a sixth sense for reading the room.

The attorney must constantly process simultaneous streams of information without losing track of any of them:

• Witness: Tracking every nonverbal cue, pause, hesitation, or moment of feigned confidence to determine when a line of questioning is striking a genuine memory versus a confabulated or manufactured detail.
• Trier of Fact: Constantly monitoring reactions, body language, and focus to ensure the defense’s message is landing correctly and not being misread as unfair harassment or as reinforcing a lost point.
• Opposing Counsel: Anticipating objections before they’re voiced and planning two steps ahead.
• The Whole File: This awareness hinges on complete mastery of the case file. Every text, medical entry, and interview transcript must be indexed in the attorney’s mind for instant recall.

All of this happens while the courtroom door is banging open and shut, the court reporter is fussing with equipment, co-counsel are passing notes his way, and people in the gallery are whispering. Through it all, the attorney must maintain awareness of the client’s demeanor (every flicker, sigh, or eye-roll) because the panel is watching that, too.

Strategic Mitigation

The attorney must retain the capacity for masterful mitigation and reading the room during sentencing. If a verdict of guilty is returned, the duty shifts instantly from challenging the facts to protecting the client’s future through mitigation. In a military trial, sentencing begins immediately after the verdict. There is no time to recover, no time to get your bearings. The defense must pivot immediately to shaping a human narrative that argues for restraint and perspective, while showing that even if the verdict is accepted as correct (which we don’t concede), it does not warrant the harshest punishment. And he has to do this while keeping the client grounded after a crushing experience: steadying him, helping keep his bearing, focusing his attention on what can still be done, and quietly watching over the people who hold him up: the mother who flew in, the father who sits stone-faced in the gallery, the spouse trying not to cry. The defense counsel’s role doesn’t end with the verdict; it extends to holding the line for everyone who still believes the client is worth saving, which might include the judge. 

Call us for a confidential consultation: (224) 935-6172

If you are facing allegations under Article 120 or accusations of domestic violence, do not face the system alone. These are the cases that test whether justice still means what it says. 

Defending individuals accused of crimes against children, from physical or sexual abuse to Shaken Baby Syndrome, CSAM possession, enticement, or indecent communication, is the most morally and emotionally demanding field in criminal law. To meet the constitutional duty of effective representation, a defense has to approach these cases with expertise and psychological composure. 

For more than 20 years, our firm has defended service members accused of the most stigmatizing UCMJ violations. We have handled every variety of case under Articles 119b, 120b, and 134, including CSAM possession, production, and enticement.

Psychological Compartmentalization

The first requirement is the ability to evaluate disturbing evidence with professional detachment.

Evidence Review

This work demands exposure to deeply disturbing material: explicit recordings, medical examiner reports describing traumatic injuries, and images documenting the worst moments of a child’s suffering. Detachment is essential not because the defense excuses harm, but because innocence, error, or overreach remain real possibilities.

Navigating Victim Impact

That detachment must extend into the courtroom, especially when testimony becomes emotional or graphic. The defense counsel must stay composed and respectful, even when witnesses express anger, grief, or outrage. The focus remains on evidence, law, and the presumption of innocence. 

The Necessity of Tactful Cross-Examination

Interviewing and cross-examining children and their parents requires courage, compassion, and patience. The primary goal is (or needs to appear to be) not to discredit a child, but to test the reliability of what the child remembers and says, or has been led to remember or say.

A child’s account carries unique importance in a military courtroom. Like all military members, judges and panel members have all sworn an oath to defend and protect others, which makes them instinctively protective of a child in ways that can exceed what you see in civilian courts. That instinct has to be acknowledged and navigated, not ignored. 

A child’s account is also the most fragile. Like adults but even more so, children don’t always know the difference between what they remember and what someone helped them remember. They are highly suggestible, even as they testify. The courtroom for a child is a strange and imposing place, with grown-up strangers in uniform staring at them intently. 

Sometimes children lie. Sometimes they lie on their own; sometimes an adult with an agenda shapes what they say. When that happens, it’s not an invitation to attack. The attorney has to stay calm, almost parental, firm but polite, and draw the falsehood out conversationally and clearly so the judge or panel can see it for what it is. 

The attorney must know which points advance their case and which destroy their own credibility with the trier of fact. We often see cross-examiners derail their case getting into arguments with child witnesses. It is better to walk away from an unnecessary confrontation with anyone, especially a child, than to alienate the judge or jury by arguing with a child or losing control of the inquiry. 

Identifying the Winnable Issue

In CSAM cases, it might be a question of whether the government can prove the accused actually knew the images were on his phone. In physical abuse cases, it might be a forensic challenge to medical conclusions. 

Situational Awareness: Holding the Room Together

The defense lawyer must process multiple streams of information at once:

• Witness: Listening for coached language, contamination, or suggestion while staying calm and respectful.
• Expert Testimony: Watching for gaps between what was said and what the panel understood.
• Trier of Fact: Reading body language and adjusting tone accordingly.
• The File: Keeping every report, line of testimony, and exhibit mentally indexed for instant recall.

All this unfolds while the climate in court is extremely tense. Military courtrooms are not dramatic. The tension is ambient. The defense attorney, not the prosecutor, has to be the voice of reason, patience, and fairness. 

Mitigation in the Shadow of Outrage

When a guilty verdict comes in or in a case where the client concedes guilt, and the sentencing proceeding begins, the defense attorney’s role shifts to preserving what remains of the client’s life. Sentencing in a military court begins almost immediately after the verdict. There is no pause for reflection or recovery.

Mitigation takes two very different forms depending on how the case ends.

In a litigated case, where guilt is contested, mitigation runs parallel to the defense. It provides the court with a human context without ever conceding the underlying allegations. It shows the service member’s life, service, and circumstances in full relief, reminding the panel that even in judgment, proportion is necessary.

In a guilty-plea case, mitigation becomes the centerpiece. The attorney’s job is to shift the court’s focus from what happened to what comes next: rehabilitation, accountability, and the possibility of recovery. Here, the advocate’s credibility and professionalism are crucial. The attorney must accept the reality of the conviction without accepting the idea that a life is irredeemable. And while doing this, counsel must keep the client focused, keep his spirits up, and attend to his loved ones and friends. 

Public Scorn and Brand Identity 

Defending someone accused of harming a child draws strong reactions from the public, from colleagues, and sometimes from the attorney’s own family. A criminal defense attorney can’t be concerned about any of that. Personal social cost is irrelevant. 

Most firms avoid these cases because the evidence is emotionally challenging, the social stigma is real, and the risk of conviction is high. We take them because every accused person is entitled to a defense and because the presumption of innocence applies to everyone. A justice system only works if it treats the hardest cases with care and fairness. Our role is to give the client a real defense and to make sure the process stays grounded in law, not emotion.

If you or someone you care about is facing allegations involving a child under Article 120b, 119b, or 134, contact us immediately for a confidential consultation. Call (224) 935-6172 to speak directly with a senior attorney who understands what’s at stake and how to fight for your future.

The difference between our cross-examination style and the traditional aggressive approach comes down to an old saying: pigs get fat, hogs get slaughtered.

We’re the pigs. We take what we need from the witness (the key admissions, the small contradictions, the gaps in memory) and we lock them down. We get fat on facts that win acquittals. We don’t overreach.

The hog is the bully cross-examiner. The sledgehammer lawyer. The “destroy-mode” performer who’s too loud, too greedy, and too focused on the show. They take excessive risks, cross ethical lines, and alienate the judge and panel. That’s why they, and their clients, get slaughtered when the verdict comes back.

Our goal isn’t to win a jousting match. It’s to win the case through a relaxed command presence. 

The Illusion of “Killer Cross”

Many lawyers in a court-martial, especially sexual-assault cases, default to a dangerously flawed approach. They think being loud, confrontational, and cinematic is what wins cases.

The attorney who “destroys” a witness and wins an acquittal often misreads what happened. They confuse correlation with causation. They didn’t win because they were relentless. They won because the government’s case was weak. The verdict came in spite of their performance, not because of it.

This misunderstanding has consequences:

Panel rejection. The judge and panel may turn against the attorney and protect the witness, voting to convict even when they have doubts.

Wasted aggression. Attacking a sincere but mistaken witness is tactically stupid. Witnesses who believe their own distorted memories will dig in harder when confronted. The exchange becomes an argument you can’t win by arguing. The panel’s sympathy shifts to the witness. You lose the moral high ground and any momentum you had.

Any case that can be won with a sledgehammer can be won more cleanly and decisively with precision and conversation.

The Trial Lawyer’s Edge: Control and the High Road

What separates a successful UCMJ trial lawyer is the ability to detect flaws in witness testimony in real time while staying in control. An expert defense handles both types of unreliable witnesses: the sincere person confused by bias and the deliberate liar. We use two modes.

1. Constructive Cross (The Default)

This is conversational cross-examination. Polite, firm, precise.

The goal is to get the witness talking beyond yes-or-no answers. Let them expose the fragility of their own memory. Use science and logic to show the panel that the testimony is distorted by cognitive bias or alcohol-induced confabulation. You defeat the reliability of the memory without attacking the witness’s character.

This approach makes the attorney look like the expert seeking truth, not the bully looking for a fight. The judge and panel trust you.

2. Destructive Cross (The Exception, Not the Rule)

Destructive cross (pinning down a witness, limiting their movement, controlling the answers) is foundational. It’s Cross-Examination 101. But it should be reserved for specific situations.

Use it when a witness is provably deceptive or stubbornly unreliable on a core fact.

The old commandment that you should limit witnesses to yes-or-no answers is foolish. Trial advocacy courses and books teach that on cross-examination, the lawyer should be the one “testifying”: you choose the facts, state them in words you like, and get the witness to adopt them with a simple yes or no. Ta-da, you’ve made your case. But that’s not how it comes across. Panels aren’t impressed. That’s pure ego-driven, self-important bullshit lawyers tell themselves. Panels want to hear from the witness, not the attorney. A skilled cross-examiner gets to the same destination with far better effect and without looking desperate.

When a witness lies, the conversational style forces them to hang themselves. You highlight the contradictions. They self-destruct. By keeping the high ground and treating even liars with respect, you secure the panel’s trust. That trust lets you drive home the evidence in closing argument. Your client leaves with their integrity intact.

Rookie trial lawyers think confrontation equals effectiveness. Experts know precision and restraint are what separate wins from losses. Even Larry Pozner and Roger Dodd, the guys most associated with “killer cross,” emphasize mastering the constructive approach. Most lawyers skip that part because it can be scary, it’s hard to do well, and it requires delayed gratification. 

Your freedom shouldn’t be jeopardized by a lawyer’s peacocking. When seen from behind, a peacock is all butthole. Don’t be represented by a butthole.

If you’re facing serious UCMJ charges, you need counsel who has mastered constructive cross-examination: the ability to dismantle flawed testimony with tact and precision, without alienating the judge or panel.

Don’t bet your life on a performance. Choose the defense that earns the panel’s trust.

Call (224) 935-6172 for a confidential strategy review.