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.
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
Q: What are the odds of success on appeal?
A: 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.
<h3>Q: Can I hire a civilian attorney for a court-martial even if I have a military JAG defense counsel assigned to my case?
A: 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.
Q: How much does it cost to hire a civilian military attorney for a court-martial?
A: 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.
Our firm 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.
Q: How much does it cost to hire a civilian military attorney to appeal a court-martial conviction?
A: 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.
Q: If I can afford to hire an attorney, when should I do it?
A: 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.